Opinion  EC-COI-84-17

Date:	02/21/1984
Organization:	State Ethics Commission

A Department of Mental Health psychiatrist on leave of absence to work for a non-profit organization under a DMH contract does not violate § 7 of the conflict of interest law because he is not considered a state employee while on leave of absence.

 

 

Facts

Until December 1, 1983, you were employed as a psychiatrist by the Department of Mental Health (DMH). On December 2, 1983, you took an unpaid leave of absence from your DMH position to serve as the acting director at a private Foundation (Foundation) and have continued in that status through the month of February,1984. While on leave of absence, you have received no compensation, fringe benefits or retirement credit attributable to your DMH psychiatrist position. Your current compensation from the Foundation is derived from a vendor contract with DMH.

Question

Does your acceptance of the DMH-derived funds from the Foundation place you in violation of G. L. c. 268A during your leave of absence from DMH?

Answer

No.

Discussion

During the period prior to and including December 1,1983 in which you were employed as a psychiatrist with DMH, you were a state employee for the purpose of G.L. c. 268A.^[1] Similarly, when you return to that position following the completion of your acting duties with the Foundation, you will be a state employee for the purposes of G.L. c. 268A.

However, the Commission concludes that your status as a state employee does not continue during the period in which you are on unpaid leave of absence. During the period of your leave of absence, you do not, strictly speaking, hold employment with DMH and have suspended your right to receive benefits attributable to that position. Although the Commission has not previously addressed this issue,^[2] the Attorney General ruled in 1966 that a state employee on leave of absence could be appointed to a position with another state agency. 1966 Op. Atty. Gen. No. 56, (August 9,1966). The Opinion, which was not limited to the effect of G.L. c. 268A, broadly stated that no law could remotely be said to bar the proposed contract. The conclusion that state employees may work for another state agency while on leave of absence is also consistent with other Massachusetts statutes which protect the status of state employees on leave of absence to elected state positions, see G.L. c. 30, § 9F; c. 30, § 46; c. 31, §37.

Inasmuch as you are not currently a state employee during your leave of absence, your financial interest in the Foundation's vendor contract with DMH is not subject to the prohibitions of G.L. c. 268A, § 7.^[3] This conclusion will apply as long as you are on a bona fide unpaid leave of absence from your DMH position. A period of absence from your position due to vacations, holidays, personal time or illness, for example, would not insulate you from state employee status during that period because you would be receiving commonwealth benefits attributable to the leave period.

 

End Of Decision

^[1] G.L. c. 268A, § 1(q) defines "state employee" as a person performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council.

^[2] In EC-COI-83-164, the Commission discussed the limitations which G.L. c. 268A, § 19 would place on a teacher who takes a leave of absence to serve as mayor in the same community. The opinion did not reach the issue of whether the individual retained his employee status as a teacher while on leave of absence. However, if the leave of absence were from an elected office, as opposed to an appointed position, employee status would continue for the purposes of G.L. c. 268A. EC-COI-83-84.

^[3] Section 7, in general, prohibits state employees from having a financial interest in second contracts made by state agencies.