| Date: | 05/29/1985 |
|---|---|
| Organization: | State Ethics Commission |
A partner in a firm who is named in a contract with a state agency to evaluate an alcohol education program administered and coordinated out of the public schools is a special state employee for conflict of interest law purposes.
You are one of two principals in the firm of (ABC). You have been under contract with the Bureau, a state agency, to evaluate an alcohol education program since 1979. You indicate that you are specifically named in each contract and the contracts are renewed annually. The program is prevention oriented and is administered and coordinated out of the public schools.
In 1983, you also received a research grant from the USA, a federal agency, to develop and test an alcohol education program. The grant is administered through Harvard Medical School. Your project involves surveys and interviews with students at a high school and the evaluation of any new prevention program developed from your research. The state has no involvement in this program.
1. Assuming the Bureau renews ABC's contract for evaluation of the program, would you be considered a state employee for the purposes of the conflict of interest law, G.L.268A?
2. If so, would you violate G.L. c. 268A by continuing to work on the research grant?
1. Yes.
2. No.
The conflict of interest law defines "state employee," 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, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis." G.L. c. 268A, § 1(q).
This definition has not generally been construed to include an employee of a corporation or vendor which contracts with the state. See, e.g., EC-COI-83-94.[2] However, both the Commission and the Attorney General have held that such an employee is covered by the definition if the terms of the contract indicate that a specific individual's services are being contracted for. In Attorney General Conflict Opinion No. 854, a fifty percent stockholder in a corporation was specifically named in a contract between that corporation and a state agency which could cancel the contract if the stockholder failed to perform the duties designate& The Attorney General
concluded that under these circumstances the individual was a state employee for the purposes of G.L. c. 268A. In Commission advisory opinion EC-COI-80-84, the Commission concluded that the partners in a law firm were "state employees" because the contracting state agency specifically contemplated that each of the firm's partners would work on the project for the state.
In your case, you are one of two principals in ABC. Because the ABC contract with the Bureau specifically contemplates your services and your name appears in the contract, you would be considered a "state employee" for purposes of the conflict law. In view of the part-time nature of your contract, you would be eligible for special state employee status within the meaning of G.L. c. 268A, § 1(o)(2)(a).[3] In this regard, some provisions of the conflict of interest law will apply less restrictively to you. The applicable provisions to your situation are §§ 4 and 6.
Under § 4, as a "special state employee" you will be prohibited from receiving compensation from or acting as agent for anyone other than the state in relation to any particular matter[4] in which the state is a party or has a direct and substantial interest if the matter is one in which you have either participated or have had official responsibility for as a special state employee. If you serve more than sixty days in any three hundred sixty-five day period, the prohibition will apply to any matter pending in the Bureau. This provision would apply to you only if the state were either a party to or had a direct and substantial interest in your research contract. While your research contract may ultimately benefit the public, it is not a matter in which the commonwealth or a state agency is a party or has a direct and substantial interest, Therefore, on the basis of the facts as you have presented them, you will not be prohibited by § 4 from working on the USA contract.
Section 6 provides in pertinent part that no state employee may participate as such an employee in any particular matter in which he or... a business organization in which he is serving as officer, director, trustee, partner or employee has a financial interest. The Commission has previously ruled that the financial interest must be direct and immediate or at least reasonably foreseeable. See EC-COI-84-98. In terms of the practical application to your situation, it is not foreseeable that the consequence of any evaluation you perform for the Bureau would affect either your or ABC's financial interest as it relates to the USA research.
The project is an established specialized prevention program administered by the public schools. Your work on the USA consists of basic research for the development of a new prevention program There is no indication that your yearly evaluation of the program would affect your financial interest in a grant that you were awarded in 1983 to perform research for USA. Therefore, your evaluation of the program while performing USA research does not constitute a financial interest under § 6.
End Of Decision
