| Date: | 01/08/1985 |
|---|---|
| Organization: | State Ethics Commission |
A part-time consultant to the Department of Mental Health is a special state employee. Absent receipt of a gubernatorial exemption under GL. c. 268A, § 7(e), the consultant may not have a financial interest in a second contract with DMH.
Pursuant to G.L. c. 268B, § 3(g), the requesting person has consented to the publication of this opinion with identifying information.
You are an employee of a company which has entered into a contract with the Department of Mental Health (DMH). You state that approximately half of your salary is derived from the contract with DMH.
You are also a member of the Fernald Board of Trustees. Pursuant to G.L. c. 19, § 14B, the Fernald Board of Trustees is a statutorily-created corporation in and of itself for the purpose of receiving, managing and spending gifts for the benefit of the Walter E. Fernald State School. General laws c. 19, § 15 provides that "[t]he board of trustees of the Walter E. Fernald state school shall consist of six members on the part of the commonwealth, one of whom shall annually be appointed for six years by the governor, and of six members to be elected by the school, subject to the approval of the governor."
The Fernald State School was originally founded in 1848 as a private charitable corporation. When the state took over the private school and turned it into a public institution in the early twentieth century, the private Fernald corporation amended its by-laws to reflect the new arrangement set forth in G.L. c. 19, § 15 for the selection of the Fernald Board of Trustees. You state that the Fernald Corporation, consisting of approximately fifty people, still meets once a year for the principal purpose of electing six of the twelve Fernald trustees and four corporate officers.
Does G.L. c. 268A permit you to continue as a Fernald Trustee, in light of your company's contract with DMH?
No, unless you obtain a governor's exemption, as discussed below
Whether you are subject to any restrictions under G.L. c. 268A depends in the first instance upon whether you are considered a state employee. "State employee" is defined in chapter 268A as a person performing services tor 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, including members of the general court and executive council. The definition of "state agency" is any department of a state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town. G.L. c. 268A, § 1(p).
The Fernald State School is listed in G.L. c. 19, § 14A as a state facility under the control of DMH. Moreover, G.L. c. 19, §14 specifically states that the board of trustees of the Fernald State School "shall serve in the department. [of mental health]." Because you perform services for a state agency as a Fernald trustee, you are considered a state employee for chapter 268A purposes. Due to the unpaid and part-time nature of your trusteeship, however, the conflict law will apply less restrictively to you as a special state employee[1] under certain circumstances.
Section 7 of Chapter 268A 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..." This section is intended to prevent state employees from using their positions to obtain contractual benefits from the state and to avoid any public perception that state employees have an "inside track" on such opportunities. Because it is impossible to always distinguish employees who are in a position to influence the awarding of a contract from those who are not in such a position, the law treats all state employees as though they have influence. See, W.G. Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 Law R. 299, 374 (1965). Under this general ban, the portion of your salary derived from DMH's contract with the Institute gives you a prohibited § 7 financial interest in a state contract. There are, however, a number of exemptions from the § 7 prohibition. Two of these exemptions, the § 7(b) and § 7(d) exemptions, require that you not participate in or have official responsibility for any of the activities of the contracting agency. In other words, these two exemptions have the prerequisite that the contract in which you have a financial interest be made by a state agency other than your own. Because the Fernald State School is a state facility within DMH, you necessarily participate as a Fernald trustee in the activities of the contracting agency (DMH) and so are ineligible for these exemptions. Your full-time status as a company employee also disqualifies you from the social service exemption, which exempts only part-time state workers who meet certain criteria. The sole exemption available to you is § 7(e), which requires that you file a statement with the state ethics commission disclosing your interest in the DMH contract and obtain an exemption from the governor, with the advice and consent of the executive council.
End of Decision
