| Date: | 04/17/1984 |
|---|---|
| Organization: | State Ethics Commission |
An employee of a non-profit corporation which has a contract with the Department of Mental Health is not a state employee under 268A, where the contract between the Department and his employer does not specifically contemplate using his services.
You are an employee of ABC, a private non-profit corporation located in the state. One of your duties involves directing a psychiatric group home in the state. The group home is under a contract with the Department of Mental Health (DMH) to provide services to emotionally disturbed teenagers. The building in which the home is located is no longer being properly maintained by the landlord, and it is no longer feasible for the program to be housed there. You wish to purchase a building in which the program can be housed. You would then lease the property to ABC.
Would G. L. c. 268A prohibit you from leasing your building to ABC?
No, because you are not subject to that law.
The conflict of interest law defines "state employee,” in relevant part, 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." G. L. c. 268A, §1(q). The definition has not been extended to an employee of a corporation or vendor which contracts with the state unless the Commonwealth intends to contract for the services of a specific individual. For example, in EC-COI-83-129 the Commission concluded that a project leader in a software business with a contract with the state was a "state employee" because the contracting state agency specifically contemplated that he would be the project leader for the contract. See also EC-COI-83-165; EC-COI-83-94; EC-COI-81-120.
You are a salaried employee of ABC. Even though some portion of your salary may come from state-originated or state-handled funds, any services you perform are for ABC and not for any state agency. An examination of the contract between DMH and ABC makes it clear that DMH did not contemplate using your services specifically. Your name does not appear in the contract. Furthermore, the contract language dealing with staffing patterns is very general, referring to social workers, clinical psychologists and aides, without designating specific individuals. Therefore, you are not a "state employee" as defined in G. L. c. 268A, §1(q). Because you are not a state employee, you are not bound by the prohibitions of §7 which prevent state employees from having a financial interest in contracts made by state agencies. You should, however, be aware that there may be regulations or guidelines promulgated by DMH which address the arrangement you are proposing. Since the Commission’s authority does not extend beyond G. L. c. 268A and G. L. c. 268B, you should seek guidance from DMH.
End of Decision
DATE AUTHORIZED: April 17, 1984
