| Date: | 07/17/1984 |
|---|---|
| Organization: | State Ethics Commission |
An attorney and psychiatrist may performing consulting services for multiple state agencies (Department of Mental Health, Mass. Rehabilitation Commission, Brockton District Court, and the Boston Juvenile Court) subject to the restrictions contained in § 7 of the conflict of interest law.
You are an attorney and a psychiatrist. You have been approached by several state agencies to enter into part-time consulting arrangements with them in your areas of expertise. The arrangements include the following: (1) working fifteen hours a week for the Department of Mental Health (DMH) doing forensic evaluations; (2) working three hours a week for DMH doing psychiatric evaluations of sexually dangerous patients; (3) working two hours a week for the Massachusetts Rehabilitation Commission doing psychiatric disability determinations; (4) working approximately ten hours a week for the Brockton District Court doing legal representation at civil commitment hearings; (5) working four hours a week for the Boston Juvenile Court doing forensic evaluations. You have received an exemption pursuant to G.L. c. 268A, § 7(e) which permits you to perform both consultant contracts with the Department of Mental Health.
Does G.L. c, 268A permit you to enter into all of the arrangements described above?
Yes, providing you file a disclosure with the Commission pursuant to § 7(d).
Your various arrangements with the agencies you have listed make you a state employee as that term is defined in the conflict of interest law, G.L. c. 268A.[1] You therefore are subject to the provisions of that law. However, because your services under any of the contracts would be performed on a part-time basis, and because you would be permitted by the terms of your contracts to engage in other employment during normal working hours, you would be considered a special state employee. G.L. c. 268A, § 1(o).
The section of G.L. c. 268A which is relevant to your inquiry is § 7 which prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency in which the commonwealth or a state agency is an interested party. Ordinarily your activities would be prohibited by § 7, but because you are a special state employee, two exemptions are potentially available to you. You have already availed yourself of the § 7(e) exemption in connection with your two contracts with the Department of Mental Health. Section 7(e) provides that the contract prohibition wiIl not apply to a special state employee who files with the Commission a statement making full disclosure of his interest and the interests of his immediate family in the contract if the governor, with the advice and consent of the executive council, exempts him. The second potential exemption is found at § 7(d). It exempts from the prohibition a special state-employee who does not participate in or have official responsibility for any of the activities of the contracting agency and who files with the Commission a statement making full disclosure of his/her interest in the contract. Examining your situation in light of this provision, the only question is whether you may provide services simultaneously to the Brockton District Court and the Boston Juvenile Court.[2] Thus the focus of this discussion is whether by performing the services called for in one of these two contracts you would be participating in the activities of the agency which is a party to the second contract. To phrase it another way, the issue is whether the Brockton District Court and Boston Juvenile Court are considered to be the same state agency for purposes of G.L. c. 268A. The Commission concludes they are not.
In 1978 the general court passed legislation called the Court Reorganization act which effected an administrative consolidation of all the courts in the commonwealth with trial jurisdiction. The intent of the general court was to promote the orderly and effective administration of the judicial system of the commonwealth by encouraging "a broader availability of personnel and other resources for the hearing of all causes on an equitable basis by the several justices of the trial court . . . without in any way derogating from the rights of parties to all proceedings and without in any way impairing the validity of all judgments and orders of duly appointed justices in the commonwealth." c. 478 of the Acts of 1978. The resulting structure is the trial court, under the supervision of the Supreme Judicial Court, which consists of seven departments: the superior court department, the housing court department, the land court department, the probate and family court department, the Boston municipal court department, the juvenile court department, and the district court department. G.L. c. 211B, § 1. Within each department are different divisions, e.g. the Brockton District Court is a division by the district court department and the Boston Juvenile Court is a division of the juvenile court department. The trial court has a chief administrative justice (CAJ), and each of the departments has an administrative justice. The CAJ is responsible for the overall administration of the trial court, and the departmental administrative justice is administrative head of his/her department, subject to the superintendence power of the CAJ. In spite of this scheme of administrative centralization, the Commission concludes that each department retains sufficient substantive autonomy to warrant finding that it is a separate agency.
First, each department has the authority to make its own personnel appointments, the only requirement being that they conform with the standards established by the CAJ. Although the CAJ has the power to reject any appointments he can only exercise that power for non-compliance with the standards for appointment. Additionally, although the trial court is financed by a single budget allocation of the legislature, its budget request is based on the estimates of the individual courts. They, in turn, cannot make expenditures for goods or services unless they have sufficient money in their own budget to do so. Assuming that a court does have sufficient money to contract for goods or services, it can decide who it wishes to contract with, and the court itself is designated in the document as the contracting party. Review of the contract at the CAJ level is limited to the review of the contract as to form.
Although with the present court structure the CAJ has superintendence power over the administration of each individual court, that power is limited to court administration and does not intrude on the substantive work of each court. The legislature does not appear to have intended the restructuring to interfere in any way with the judicial function as is evidenced by the legislature's statement of purpose set out earlier. In some ways the office of the CAJ is analogous to the Executive Office of Administration and Finance (A&F) within the executive branch. Although it has responsibility for the overall administration of all departments, divisions, boards, commissions, offices and other agencies of the executive branch, the various sub-branches of the executive branch are not considered to be within A&F even though it has that superintendence power over their administration. See G.L. c. 7, § 3. The Commission has faced similar issues in slightly different contexts in previous opinions. For example, in determining whether a matter is "pending in a state agency" for purposes of G.L. c. 268A, § 4, the Commission has examined the amount of control one agency has over the other and whether one agency is within the department or secretariat of the other to determine if there is "operational independence" between the agencies. See e.g., EC-COI-84-30; 83-103; 82-164; 82-50.[3] The court system is unique in that, unlike divisions and departments within the various secretariats, there is substantive operational independence among the individual courts. The CAJ has no authority to intervene in the judicial process of each court. If any entity does have that authority it would be the appellate courts, and even their intervention is limited. Thus, although there is administrative centralization within the trial court system, each department maintains sufficient autonomy to warrant funding that it is a separate agency. You therefore may contract simultaneously with the Boston Juvenile Court and the Brockton District Court, following your filing of a § 7(d) disclosure statement with the Commission.
End Of Decision
