Opinion  EC-COI-84-23

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

A full time investigator for a state regulatory agency may provide cleaning, maintenance and security services after hours to the general public provided that: 1) he does not represent the cleaning/security business in obtaining state contracts; 2) he refrains from investigatory complaints involving businesses that hired him to do cleaning or security or involving competitors of businesses that hired him; 3) he complies with the conditions of §7 for obtaining contracts with the state; and 4) he does not use his state position to solicit customers for his outside business.

Facts

You currently serve as a full-time investigator for a state agency (ABC). You are interested in engaging in outside employment under which you would provide cleaning, maintenance and security services under periodic contracts with the general public.

Question

Does G. L. c. 268A permit you to engage in your proposed employment while you maintain your position with the ABC?

Answer

Yes, subject to the limitations discussed below.

Discussion

As an ABC investigator, you are a state employee for the purposes of G. L. c. 268A. As a state employee there are four sections of G. L. c. 268A which are relevant to your situation.

1. Section 4

   This section prohibits you from receiving compensation from or acting as the agent of your business in relation to any particular matter^1/ in which the commonwealth or a state agency is a party or has a direct and substantial interest. This provision would come into play if your business were attempting to obtain cleaning, maintenance or security contracts with state agencies. Inasmuch as these contracts would be particular matters in which a state agency was a party, §4 would specifically prohibit you from representing the business in its attempts to secure state contracts.

2. Section 6

   Section 6 prohibits you from participating^2/ as an ABC investigator in any particular matter in which, in relevant part, either you or a business organization with which you have an employment relationship has a financial interest. Should such a matter come before you, you must disclose the nature of the matter and the financial interest in it to the Ethics Commission and your appointing official. That official must then either 1) assign the matter to another employee; 2) assume responsibility for the particular matter; or 3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect from you. Your disqualification from participation would come into play if you were called upon to investigate a complaint filed against a company which hired you to perform cleaning services on a periodic contractual basis. Section 6 would also apply to your investigation of complaints against companies which are geographically competitive with a company which employs you. You should therefore carefully monitor your ABC complaint assignments and comply with the §6 disqualification requirements whenever assigned a complaint which would affect the financial interests of any company which employs you.

3. Section 7

   This section generally prohibits you from having a financial interest in a second contract made by a state agency, subject to certain exemptions. Specifically, you would be permitted to be paid for your cleaning, maintenance and security services out of state contract funds provided that you comply with the exemption under §7 (b).^3/

4. Section 23

   As a state employee, you are subject to the standards of conduct contained in §23, and in particular, the provision that state employees may not use their official position to secure unwarranted privileges or exemptions for themselves or others. In engaging in your cleaning business activities, you should be mindful of this restriction. For example, you may not solicit potential customers while performing your ABC responsibilities, nor use state time, supplies or personnel to further your private business activities.

End of Decision

DATE AUTHORIZED:                        February 21, 1984

^1/ For the purposes of G. L. c. 268A, "particular matter, is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court. . ." G. L. c. 268A, §1(k).

^2/ For the purposes of G. L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally or substantially as a state, county or municipal employee through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G. L. c. 268A, §1(j).

^3/ The prohibition of §7 does not apply:

(b) to a state employee other than a member of the general court who is to employed by the contracting agency or an agency which regulates 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.