Opinion  EC-COI-84-46

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

An educational collaborate may employ during its summer special education program institutional school teachers employed by the state Department of Education Bureau of Institutional Schools without violating § 7 of the conflict of interest law because the BIS institutional school teachers will be providing services to recipients of public assistance, thereby qualify under a § 7 exemption. 

Facts

You are the director of programs for ABC Collaborative (ABC), an educational collaborative established pursuant to G.L. c. 40, § 4E by representatives of member public school systems. ABC provides special educational services which cannot be efficiently provided by individual cities or towns. During the summer, ABC offers special education services to handicapped students in state institutions. This program is funded and administered by the Bureau of Institutional Schools (BIS) of the Department of Education (DOE). You state that virtually all of the institutional students who participate in the summer program are recipients of supplemental security income (SSI), a federal financial assistance program for aged, blind, and disabled persons. Assignment to the summer program is made pursuant to an educational plan which must be approved by the student's parent or guardian, who may withdraw consent for the assignment at any time. The rates for the services provided by ABC under the contract with DOE are determined and approved by the rate setting commission. 

You have customarily hired, for the summer program, BlS employees who are classified as "institutional school teachers." Institutional school teachers perform services during the traditional ten month school year and are, in effect, on vacation during the two summer months. Institutional school teachers receive the full retirement, insurance, collective bargaining and sick leave benefits which are available to state employees who are employed on a twelve-month basis, and they are not eligible for unemployment compensation during the summer.

Question

1. Are BIS institutional school teachers state employees under G.L. c. 268A during the two-month summer period?

2. Does G.L. c. 268A permit BIS institutional school teachers to be paid for summer employment with ABC under a contract with DOE?

Answer

 1. Yes.

 2. Yes, as long as the exemption standards described below continue to be satisfied.

Discussion

1. Jurisdiction Under G.L. c. 268A

At the outset, BIS institutional school teachers are clearly state employees under G.L. c. 268A during the ten-month period in which they provide services for DOE, a state agency. See, G.L. c. 268A, § 1(q). Further, based upon the range of benefits which continue to apply to BIS institutional school teachers during the two summer months, the Commission concludes that status as state employees under G.L. c. 268A likewise continues to apply during the two summer months. In a recent advisory opinion, EC-COI-84-17, the Commission advised a state employee that his state employee status would not continue during a period of unpaid leave of absence in which the employee received no compensation, fringe benefits or retirement credit attributable to his state position. However, the Commission cautioned the employee that "[t]his 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." EC-COI-84-17 p. 2. It follows, then, from this opinion that the continuation of commonwealth benefits during the summer to BIS institutional school teachers results in a continuation of state employee status.^[1]

2. Financial Interest in a DOE Summer Contract

Section 7 of G.L. c. 268A prohibits a state employee from having a financial interest, directly or indirectly, in a second contract made by a state agency. The summer contract between ABC and DOE is a contract made by a state agency within the meaning of § 7, and state employees who work in the ABC summer program and who are paid through this contract would have a financial interest in the contract. Although, the exemptions to § 7 provide some latitude where a state employee wishes to contract with a different state agency, see, G.L. c. 268A, § 7 paragraph (b), (d), neither § 7 paragraph (b) and (d) would be available to the BIS institutional school teachers at  issue because their summer contract is made by DOE, the same agency which employs them during the school year. There is, however, one exemption to § 7 for which BIS institutional school teachers at issue would currently qualify. Paragraph 4 of § 7 provides as follows:       

     This section shall not apply to a state employee who provides services or furnishes
     supplies, goods and materials to a recipient of public assistance, provided that such 
     services or such supplies, goods and materials are provided in accordance with the
     schedule of charges promulgated by the department of public welfare or the rate setting
     commission and provided, further, that such recipient has the right under law to choose
     and in fact does choose the person or firm that will provide such services or furnish such
     supplies, goods and materials.

Because virtually all of the institutional students who receive services under the ABC summer program are recipients of public assistance, the services are provided in accordance with a schedule established by the rate setting commission, and the recipients, through their parents or guardians, select the ABC program as part of the students' educational plan, the Commission concludes that the conditions for the exemption are satisfied. However, should a smaller proportion of clients on public assistance participate in the ABC summer program, then the application of their exemptions to § 7 would have to be re-examined in light of these new facts. EC-COI-83-98.^[2]

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End Of Decision 

^[1] lnasmuch as BIS institutional school teachers do not receive compensation during the summer and therefore hold a position for which no compensation is provided, they would qualify as "special state employees" under G.L. c. 268A, § 1(o) during the summer. As special state employees, they would continue to be subject to G.L. c. 268A, albeit in a less restrictive way. However, in view of the Commission's conclusion under G.L. c. 268A, § 7, status as a special state employee is not a relevant consideration in this case. The Commission's conclusion regarding special state employee status is limited to the facts of this case and, in any event should not be construed as authority for such status during a period shorter than two months. For example, a state employee would not be a special state employee during the weekends between his or her normal workweek.

^[2] BIS institutional school teachers should also be aware that their conduct is subject to G.L. c. 268A, § 23 which, in relevant part, prohibits the use of their official state positions to secure an unwarranted privilege or exemption for themselves. Considerations under § 23 would arise, for example, if they misused their insider status to gain an unwarranted advantage in the selection process. These concerns would be minimized by ABC's use of public advertising for positions in the summer program. Cf. G.L. c. 268A, § 7 ¶ (b).