Opinion

Opinion EC-COI-85-37

Date: 05/14/1985
Organization: State Ethics Commission

A full-time social worker for the Department of Social Services (DSS) may become a part-time DSS employee and also work for a private counseling agency, subject to certain limitations. In particular, she may not receive compensation from the private agency in relation to the referral or treatment of clients from DSS.

Table of Contents

Facts

You are presently employed by state agency ABC as a consultant in connection with a project. In your position, you serve as liaison between the public and various state agencies involved in the project. You state that your hours in this position are flexible and that you are permitted to engage in outside activities during normal working hours. Your appointing official has classified you as a special state employee pursuant to G.L. c. 268A, § 1(o).

State agency DEF has issued a request for proposals for a study in connection with a new project. A private firm that wants to submit a proposal to DEF would like to have you assist them in the preparation of that proposal. Should the firm be awarded the project, it might offer you a contract to provide the community liaison component of the work.

You also state that you are a member of the school committee in a town.

Questions

  1. Would G.L. c. 268A permit you, as a special state employee, to assist a private firm in connection with its submission of a proposal to the DEF?
  1. Would G.L. c. 268A permit you, as a special state employee, to enter into an arrangement with a private firm to provide services on the DEF contract if it is awarded to the firm?
  1. Does G.L. c. 268B place any limitations on you as a school committee member in connection with your state employment?

 

Answers

  1. Yes.
  2. Yes.
  3. You are subject to the following limitations

Discussion

The provisions of G.L. c. 268A that are applicable to your situation are §§ 4, 7 and 23. Section 4 provides in relevant part that a state employee may not receive compensation from or act as agent or attorney for anyone other than the commonwealth or a state agency in relation to a particular matter[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest. A special state employee is subject to these prohibitions only in relation to a particular matter in which she has at any time participated as a state employee, or which is or within one year has been a subject of her official responsibility, or which is pending in the state agency in which she is serving.[2] Submissions made by private firms to state agencies in response to requests for proposals are particular matters. DEF, which is a state agency, obviously has a direct and substantial interest in that submission.

You have not, however, as an ABC employee, participated in or had official responsibility for the submission. Nor is the matter pending in the agency for which you are working. Although there undoubtedly is considerable coordination and cooperation between ABC and DEF, they are independent entities, so that a matter which is pending in one would ordinarily not be deemed to be pending in the other. Thus, you will not be prohibited from acting as the firm's agent or from being compensated by it in connection with the development of its submission to DEF.

The same analysis would apply to you should the firm be awarded the DEF contract and then retain you to provide services under the contract. Since you would neither have participated in the contract nor have had official responsibility for it as a DEF employee, and since it would not be pending in ABC, you would not be prohibited from working on it by § 4.

Although it is unclear from your letter whether any compensation you might receive from the firm would originate from monies in which the state has an interest, e.g., state funds, or federal funds administered by a state agency, we have focused on the application of § 4 to your situation.

Section 7, however, would be applicable if the money you were paid by the firm were money it received from DEF under the contract. Section 7 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. There is an exemption to this broad prohibition for special state employees who do not participate in or have official responsibility for any of the activities of the contracting agency.[3] Thus as long as you do not, as an ABC employee, participate in or have official responsibility for any of the activities of DEF, the contracting agency, you may be compensated by the firm for your services out of contract monies.

Section 23, in relevant part, prohibits a state employee from using or attempting to use her official position to secure unwarranted privileges or exemptions for herself or others. Because you might, in your ABC job, have contact with DEF officials, you should be careful not to seek any special favors for the firm in connection with its submission, such as an extension or an expedited review.

Finally, you have asked whether G.L. c. 268A limits your activities as a school committee member in the town.

In general, G.L. c. 268A, § 4 will not pose any limitations on your activities on behalf of the school committee, because those activities would not be in relation to matters which are pending in the ABC. However, you should be aware that your membership on the school committee will limit your activities as an ABC consultant. Specifically, § 6 prohibits your official participation[4] as an ABC employee in any particular matter in which the town has a financial interest. Should such a matter come before you, you must refrain from participation and notify your appointing official and the Commission of the nature and circumstances of the particular matter and make full disclosure of the financial interest. You may participate if your appointing official submits a written determination with the Commission that the financial interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth expects from you.

 

End of Decision

[1] Particular matter is defined as "any judicial or other-proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property."

[2] This provision applies to you because you serve for more than sixty days in any one-year period.

[3] This exemption also requires the special state employee to file with the State Ethics Commission a statement making full disclosure of her interest in the contract.

[4] G.L. c. 268A, §1(j) defines "participate" as "participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.

Help Us Improve Mass.gov with your feedback

Feedback