Opinion  EC-COI-84-42

Date:	03/27/1984
Organization:	State Ethics Commission

A part-time employee of the department of corrections may consult a non-profit corporation because the consultation would be neither in relation to a particular matter of direct and substantial interest to the state nor paid out of department of corrections funds.

Facts

You are employed on a part-time basis as a consultant to the Department of Corrections (DOC). You also consult to ABC, a non-profit corporation which provides support services to adults who are being deinstitutionalized from Department of Mental Health (DMH) facilities. Your compensation is derived from Medicaid funds, which will be replaced by federal funds within the next month.

Question

Does G. L. c. 268A permit you to consult to ABC while you remain a consultant to DOC?

Answer

Yes.

Discussion

       As a DOC consultant, you are a state employee for the purposes of G. L. c. 268A, §1(q). In view of your part-time status, you are eligible for classification as a special state employee under G. L. c. 268A, §1 (o).^1/ As a special state employee, you are subject to certain provisions of G. L. c. 268A in a less restrictive way.

1. Section 7

   As a special state employee for DOC, you may have a financial interest in a second contract made by a state agency provided that the agency is not one in whose activities you participate or have official responsibility because your consultant position involves your receipt of compensation for more than eight hundred hours during the preceding one-year period, you are not automatically a special state employee. Rather, your appointing official must file a statement with the Commission pursuant to Section 1 (o) (2) (a) confirming that your part-time employment arrangement permits personal or private employment during normal work hours. and you file a statement with the Commission disclosing your financial interest in the contract. See, G. L. c. 268A, §7(d). Inasmuch as the Medicaid compensation which you receive from ABC is not attributable to DOC or any agency in whose activities you participate or have official responsibility, you will be in compliance with §7 following the filing of your disclosure statement with the Commission.

2. Section 4 

   Once your ABC funding is provided by the federal government, §4 will be relevant to your situation. This section prohibits you from receiving compensation from or acting as agent or attorney for ABC in relation to any "particular matter"^2/ in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you have either participated^3/ as a DOC employee, had official responsibility^4/ for within the prior year, or which is pending within DOC. Based upon the information which you have provided, your proposed activities for ABC would not violate this section. Specifically, the matters for which you will be paid by ABC are matters in which you have neither participated nor have had official responsibility for as a DOC consultant, nor are pending in DOC.

End of Decision 

DATE AUTHORIZED:                           March 27, 1984

^1/ Section 1(o) defines special state employee, in relevant part, as a state employee 

       (2) Who is not an elected official and (a) Occupies a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, provided that disclosure of such classification or permission is filed in writing with the state ethics commission prior to the commencement of any personal or private employment, or (b) In fact does not earn compensation as a state employee for an aggregate of more than eight hundred hours during the proceeding three hundred and sixty-five days. For this purposes compensation by the day shall be considered as equivalent to compensation for seven hours per day. A special state employee shall be in such a status on days for which he is not compensated as well as on days on which he earns compensation. 

^2/ 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) .

^3/ For the purposes of G. L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G. L. c. 268A, §1(j).

^4/ For the purpose of G. L. c. 268A, "official responsibility," is the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action.