| Date: | 01/08/1985 |
|---|---|
| Organization: | State Ethics Commission |
A full-time state employee who leaves his state position to work for a vendor under a contract with a state agency would remain a state employee for G.L. c. 268A purposes because the contract expressly calls for the employee's services.
You were initially hired as a developmental disability program manager at a DMH State School. Your job responsibilities are to implement a program that DMH agreed to establish with the assistance of a specialized training program (STP) at an out-of-state institution.[1] The implementation agreement provides for the establishment of an off-grounds facility to employ severely retarded adults who reside at DMH. The facility is to obtain contracts for light industrial work. DMH is to provide the facility for program operation and provide it with equipment and furnishings. According to the agreement between DMH and STP, once the program is established it is to spin-off as a vendor organization. The vendor corporation, known as ABC, Inc. (ABC) will continue to receive in-kind support from DMH. DMH will also be responsible for maintaining the facility and two DMH staff people will work at the program.
As program manager you arranged for commercial space. You supervised the renovation and equipment installation necessary for electronics assembly. You incorporated the program as a non-profit corporation and recruited a volunteer board of directors made up of business people in the community. You were also responsible for preparing bids and obtaining contracts from electronic manufacturers. You acted on behalf of ABC in your state position by responding to a request for a proposal to another DMH office.
As of January 1, 1985, the agreement between DMH and STP required you to surrender your state position and take up the same duties as an employee of ABC. However, you asked for reassignment to DMH instead of assuming the general manager position for ABC because you did not think you could legally hold the position as general manager of ABC.[2]
Does G.L. c. 268A allow you to assume the position of general manager of ABC?
Yes.
As program manager for DMH, you are a state employee and are therefore subject to the provisions of the conflict of interest law, G.L. c. 268A. You have raised a legitimate question as to what your status will be when ABC spins-off from DMH. Based on the facts you have provided, the Commission concludes that you would continue to be a state employee as general manager of ABC.
A "state employee" is defined, 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.. ". G.L. c. 268A, § 1(q). You were hired by DMH with the understanding that as program manager you would remain with ABC when it became a separate corporation. As of January 1, 1985, ABC is not a part of DMH. Although its character is as a vendor agency, DMH will give ABC in-kind contributions by having two DMH staff work at ABC, and also pay for ABC's facility. ABC's funds will also come from private business contracts. If you were to assume the position of general manager of ABC you would still be considered a state employee because DMH originally contemplated when they hired you that you would remain with the corporation. An employee of a vendor agency that contracts with the state is not customarily considered a state employee. See EC-COI-84-5. However, the Commission and the Attorney General have held that an employee of a vendor corporation is covered by the definition of state employee if the terms of the contract indicate that a particular individual's services are being contracted for. In your situation, the contract between DMH and STP expressly call for your services as program manager when ABC spins-off from DMH. You will therefore remain a state employee.[3]
End Of Decision
