| Date: | 03/22/1983 |
|---|---|
| Organization: | State Ethics Commission |
A state employee is advised that he can take on a part-time position with another state agency provided that he qualifies under the § 7(b) exemption in the conflict of interest law.
- This page, EC-COI-83-35, is offered by
- State Ethics Commission
Opinion
Opinion EC-COI-83-35
Table of Contents
Facts
You are a full-time employee in state agency ABC (ABC). You have the opportunity to work two evenings per week as a part-time employee for state agency DEF (DEF) after March 29, 1983.
Question
May you accept the part-time position with the DEF while employed full-time by the ABC?
Answer
Yes, provided your hiring and employment are in compliance with G.L. c. 268A, § 7(b) as amended by St. 1982, c. 612.
Discussion
As a full-time employee of ABC, you are a "state employee" as defined in the conflict of interest law and, as a result, are subject to the provisions of that law. See G.L. c. 268A, § 1 et seq. Section 7 of the conflict law prohibits a state employee from knowingly having a financial interest in a contract made by any state agency. Your employment arrangement with the DEF would constitute a contract for § 7 purposes and your compensation for services would be a financial interest in it.
Chapter 612 of the Acts of 1982 amended various provisions of the conflict of interest law. Among those amendments was a change in the criteria set out in G.L. c. 268A, § 7(b) which, if satisfied, exempts the otherwise proscribed financial interest from the § 7 prohibition. This amendment goes into effect on March 29,1983 and, therefore, your question must be examined in light of this change.
As amended, the prohibition in § 7 does not apply
to a state employee other than a member of the general court who is not employed by the
contracting agency or an agency that regulate the activities of the contracting agency and
who does not participate in or have official responsibility for any of the activities of the
contracting agency, if the contract is made after public notice or where applicable, through
competitive bidding, and if the state employee files with the state ethics commission a
statement making full disclosure of his interest and the interests of his immediate family in
the contract, and if in the case of a contract for personal services (1) the services will be
provided outside the normal working hours of the state employee, (2) the services are not
required as part of the state employee's regular duties, the employee is compensated for
not more than five hundred hours during a calendar year, and (3) the head of the
contracting agency makes and files with the state ethics commission a written certification
that no employee of that agency is available to perform those services as a part of their
regular duties.
As you can see, various conditions must be satisfied before this exemption applies to any contract, with certain additional criteria applicable when, as in your case, the contract is for personal services.
As an ABC employee, you are not employed by the contracting agency DEF nor by an agency which regulates the activities of the DEF and you do not participate in or have official responsibility for any of the activities of the DEF. The exemption also requires you to file a statement with the Ethics Commission making full disclosure of your interest in this contract. The services you will provide for the DEF will be outside your normal working hours, and you state that they are not required as part of your regular duties at the ABC. You further state that you will not be compensated pursuant to this contract for more than 500 hours during any calendar year. Finally, the head of the DEF must file with the Ethics Commission a certification that no employee of that agency is available to perform the duties for which you would be hired as a part of their regular duties, and the contract must be awarded after "public notice."
The term "public notice" is not defined in the conflict of interest law. As the agency authorized to enforce that law, the Ethics Commission possesses the authority to interpret it as well. Grocery Manufacturers of America, Inc. v. Department of Public Health, 379 Mass. 70,75 (1979). Any such interpretation of "public notice" must take into account the pairing of the term in the statute with "competitive bidding"[1] and the stated purpose of the drafter that "the general public [have] equal access to the contract through notice."[2] Generally, § 7 is designed to eliminate the public impression that state employees have an "inside track" to procure state jobs and contracts. Where applicable, the mechanics of the competitive bidding process are sufficient to meet that goal. Such competition is not appropriate in many personal service employment arrangements. Therefore, a process other than competitive bidding, but addressing the concerns satisfied by that mechanism, must be adopted. Where a state agency seeks to hire an individual for an agency position, the "public notice" requirement is satisfied by the agency advertising that availability of the position at least two weeks prior to filling the position in one newspaper of general circulation in the area serviced by the contracting agency.
This procedure is similar to notice requirements set out in other state statutes,[3] and meets the goal of facilitating public access to state contracts which the "public notice" concept was intended to achieve.
End Of Decision