| Date: | 05/08/1984 |
|---|---|
| Organization: | State Ethics Commission |
A state employee who designs devices for use by the state may design other devices for commercial marketing on his own time and not using public resources, subject to the restrictions in §§ 7 and 23(b)(2). He may not privately market devices developed while performing his state duties and may not market any privately developed devices to state agencies.
You are employed by a state agency (ABC). In that position, you design customized devices. Your compensation is the only remuneration you receive in connection with devices developed in your state position. You have also, during your non-working hours and at your own expense, developed certain other devices for which you perceived a general need. You would like to pursue commercial marketing of the devices you have developed.
May you commercially market, for your own benefit, devices which you designed and developed:
1. in the course of your ABC employment; and/or
2. in your non-working hours, at your own expense and upon your recognition or perception of a need for the devices.
1. No.
2. Yes, provided you comply with certain conditions.
As an ABC employee, you are a state employee as defined in the state conflict of interest law, G.L. c. 268A, § 1 et seq., and, as a result, are subject to the provisions of that law.
Section 23 of the conflict law prohibits a state employee from using his official position to secure or attempt to secure unwarranted privileges or exemptions for himself or others. You are compensated by the state for your work designing and developing those devices during your state employ. You utilize state supplies and facilities in so doing. If you were to market these devices commercially for private gain, you would be using your position at ABC to secure an unwarranted privilege, in violation of § 23. See EC-COI-82-17; 83-154. As a result, you may not market devices developed in the course of your ABC employment for private gain.
Section 23 does not prohibit you from marketing those devices which you design and develop on your own time and at your own expense. However, it does prohibit you from using any state facilities or supplies for that purpose. And, you may not exploit the fact that you are employed by the state as a designer of such products to further your private efforts, nor may you attempt to market these devices to or at any ABC facility.
Section 7 of the conflict law prohibits a state employee from having a financial interest in contracts made by state agencies. If you attempt to market your devices to state agencies, or to individuals or entities which would use funds derived from state contracts to purchase those devices, this section could apply unless you qualify for one of the exemptions contained in it.
The prohibitions in § 7 do not apply:
to a state employee other than a member of the general court who is not 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 . . .
Sales to state agencies other than ABC, or to individuals or entities using state funds from contracts from agencies other than ABC would appear to qualify for this exemption, provided the public notice and disclosure requirements are complied with.
End Of Decision
