| Date: | 02/04/1983 |
|---|---|
| Organization: | State Ethics Commission |
An employee of the Department of the State Auditor is not prohibited from taking on a part-time consulting position with a municipality on a construction project receiving federal and state funding but is subject to the municipal exemption in § 4 of the conflict of interest law.
You are a field auditor with the Department of State Auditor (Department). The Department is responsible for conducting periodic audits of accounts of state agencies, including state agency ABC. G.L. c. 11, § 12. The Department also has an ongoing contract with the federal agency, DEF, to conduct audits on specified federal projects.
A Town is involved in a construction project which is funded by DEF (75%), ABC (15%) and the balance by a municipal bond issue. The Town has offered you an after-hours part-time consulting position to assist in the paperwork and accounting until the completion of the project in late 1983. The position involves reviewing bills and fees submitted by engineers, contractors and others; determining which bills are eligible for federal or state grant funding, and preparing monthly reports and funding applications to the DEF and ABC. These submissions would be the basis upon which ABC and DEF would determine whether to pay these bills and fees. You would also be expected to set up accounting ledgers for the Town to distinguish the federal and state bills.
Does G.L. c. 268A permit you to accept the part-time consulting position with the Town while you are employed by the Auditor's Department?
Yes, subject to certain limitations described below.
As a field auditor of the Department, you are a state employee within the meaning of G. L. c. 268A, § 1(q) and are therefore subject to the restrictions of G.L. c. 268A, the conflict of interest law. Section 4, which is the restriction most directly applicable to your situation, prohibits you from receiving compensation from or acting as agent for any non-state party in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. The term particular matter" is defined in § 1(k), in relevant part, as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding." The restrictions of § 4 reflect the principle that state employees should not assist non-state parties in their dealings with state government. Prior to 1980, § 4 was applied to prohibit state employees from outside employment with municipalities where the commonwealth had a direct and substantial interest in the matters on which the employees worked in their municipal capacity. See, EC-COI-79-123. In response, the General Court amended § 4 in 1980 to allow, in certain instances, the following municipal exemption:
This section shall not prohibit a state employee from holding an elective or appointive
office in a city, town or district, nor in any way prohibit such an employee from performing
the duties of or receiving the compensation provided for such office. No such elected
or appointed official may vote or act on any matter which is within the purview of the
agency by which he is employed or over which such employee has official responsibility.
St. 1980, c. 10.
Since the passage of the "municipal exemption," the Commission has examined whether a state employee's duties as a municipal employee come within the purview of his state agency and has prohibited proposed municipal employment on several occasions in light of the "purview" language. See, EC-COI-82-173; 82-164; 82-89; 82-39. Bearing these provisions in mind, the Commission advises you that your consultant arrangement with the Town will be subject to the following limitations.
You are prohibited by § 4 from that portion of your consultant arrangement which would involve the preparation of submissions to ABC because the Town's funding submissions to ABC would be particular matters of direct and substantial interest to ABC a state agency. You would not be eligible for the "municipal exemption" of § 4 because your state agency [the Auditor's Department] is responsible for periodically auditing ABC and the Town's funding submission would therefore be within the purview of the Auditor's authority.
Section 4 would not prohibit your rendering services for the Town in relation to the federal DEF reimbursement because currently no state agency is a party to or has a direct and substantial interest in the federal reimbursement for the project. This situation may change because the Auditor's Department has an ongoing contract with DEF to conduct audits on selected programs which involve both state and federal funds. Inasmuch as there is no current arrangement for the Auditor to review DEF funding, § 4 does not prohibit you from rendering services in relation to DEF. However, should the facts change, and the Auditor be assigned to the Town project, then your services would be prohibited by § 4 in a similar fashion to the ABC related services.
To the extent that your proposed consultant services involve purely municipal accounting and do not require the preparation of submissions to ABC or DEF your services would be permissible under § 4. Compare, EC-COI-82-33. In the event that your accounting work were to be reviewed by a state agency and therefore fall under § 4, you would be eligible for the "municipal exemption" because the scope of the Auditor's Department authority under G.L. c. 11, § 12 does not include the review of municipal account.
End Of Decision
