| Date: | 05/28/1985 |
|---|---|
| Organization: | State Ethics Commission |
A private consultant who has been asked to serve with other private citizens on an advisory board to a special legislative committee is not a state employee for Chapter 268A purposes because the advisory board is not a state agency. His services for the legislative committee are intended to provide private sector input rather than to play a role normally expected of government employees.
You are a member of an advisory board to a special legislative committee (Committee). The Committee was established to investigate the management of an entity managed by state agency ABC. Although the Committee has no authority to direct or interfere with that agency's management, ABC has assigned a person to act as a liaison with the Committee.
The advisory board is made up of private citizens with expertise in the subject of the entity. They were asked to serve in order to provide the Committee with their expert input regarding management and operation. The members are neither compensated nor reimbursed for their expenses. You have attended four or five meetings of the advisory board since becoming a member.
ABC has decided to transfer management of the entity to private organizations and will soon release a request for proposals (RFP) in connection with that plan. Although the advisory board has addressed the topic of proper management, it has not participated in the drafting of the RFP, nor has it reviewed its contents.
You anticipate that because of your expertise, organizations interested in responding to the RFP may wish to hire you as a consultant in connection with their response.
1. Are you a state employee as a member of the advisory board to the Committee?
2. May you accept employment as a consultant in connection with responses to the ABC's RFP?
1. No.
2. Yes.
The conflict of interest law defines a state employee as a person performing services for or holding a 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. G.L. c. 268A, § 1(q). Prior opinions issued by the Commission have identified several criteria to determine what constitutes performing services for a state agency.[1] Among those criteria are:
Applying the criteria above to the facts as you have stated them, the Commission concludes that the advisory board does not have the status of a body created by law, rule or regulation. From the information you have provided concerning its composition, the advisory board is apparently an ad hoc body formed to obtain and utilize in an organized way private professional viewpoints and expertise not normally available to public officials. The advisory board has no binding authority over any state agency or employees, and its members are not reimbursed for their expenses.
In addition, even if the advisory board members could be considered to be performing services for the Committee, which is a state agency, these services are intended to reflect a private sector viewpoint and not "the tasks and functions that might ordinarily be expected of government employees" because of the board's informal structure and advisory nature. EC-COI-82-54. Therefore, those services do not make the members of the advisory board state employees for the purposes of G.L. c. 268A.
In view of these factors, the Commission concludes that the members of the advisory board are not state employees for purposes of the conflict of interest law. Therefore, that law will not prohibit you from accepting employment as a consultant in connection with the RFP of ABC while you remain an advisory board member.
End Of Decision
