Opinion  EC-COI-85-57

Date:	07/16/1985
Organization:	State Ethics Commission

A full-time employee of a state educational institution may consult to a firm to perform private consulting work for private colleges and out-of-state universities. He is also prohibited from participating as a state employee with respect to any contracts the educational institution has with the firm.

Facts

You are the full-time comptroller for a state educational institution (ABC). You are also employed as a consultant by DEF. DEF has developed a product which is used widely by private colleges and universities in other parts of the country. ABC implemented the system in 1983, and six months after, you began your consulting relationship with DEF. ABC continues to have service maintenance contracts with DEF and may in the future purchase new systems from them. The service contracts are maintained by DEF personnel. If new systems are purchased, ABC will have outside consultants train its personnel on the use of those systems. As a consultant, you provide DEF with advice regarding the use and development of DEF's financial software System. You also assist OFF client colleges and universities during the various phases of implementation of the system. You state that your consulting activities involve private colleges and public universities outside of Massachusetts, In the future, DEF may want you to consult with public universities in Massachusetts.

Question

Does G.L. c. 268A permit you to work for DEF while you remain a state employee?

Answer

Yes, subject to the limitations set forth below.

Discussion

As Comptroller of ABC, you are a state employee and therefore are subject to the provisions of the conflict of interest law, G.L. c. 268A. The sections of that law relevant to the issue you have raised are §§ 4, 6, and 23.

1. Section 4

Section 4 provides in relevant part that no state employee may accept compensation from or act as agent or attorney for anyone other than the commonwealth or a state agency in connection with a particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. Any contract that DEF has with public universities in Massachusetts would be considered a particular matter in which the commonwealth or a state agency would have a direct and substantial interest. See, G.L. c. 15A, § 1 et seq. At the present time, because the work you perform is with private colleges and out-of-state universities, § 4 does not prohibit you from providing consulting services to DEF clients. On the other hand, you would be prohibited by § 4 from receiving compensation on any DEF contracts with public universities in the state because a state agency would be a party to such contract.

2. Section 6

Section 6 provides that no state employee shall participate as such an employee in any particular matter in which he or a business organization in which he is serving as an employee has a financial interest. If the state employee's duties would otherwise require him to participate in such a particular matter, he must advise his appointing official and the Commission of the nature and circumstances of the particular matter and of his financial interest in it, the appointing official shall then either:

1. assign the particular matter to another employee; or
2. assume responsibility' for the particular matter; or
3. make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the commonwealth may expect from the employee in which case it shall not be a violation for the employee to participate in the particular matter. Copies of such written determination shall be forwarded to the employee and filed with the Commission by the person who made the determination.

DEF is a business organization with which you have an employment arrangement. A contract between ABC and DEF would constitute a particular matter in which DEF has a financial interest. Section 6 therefore prohibits you from participating^[1] as ABC comptroller in any decision, determination or recommendation relating to any contracts DEF has with ABC. This provision applies to the renewal of ABC's contracts with DEF as well as new contracts. You must abstain from participation unless your appointing official makes a written determination that your interest in DEF contracts is not so substantial as to be deemed likely to affect the integrity of your services to the commonwealth. Copies of that determination must be forwarded to the Commission.

3. Section 23^[2]

You should also be aware that § 23(¶ 3)(1) prohibits you from accepting employment in any business in which will require you to disclose confidential information which you have gained by reason of your position at ABC. You should keep this provision in mind whenever discussing ABC matters with DEF.

 

End Of Decision

^[1] G.L. 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."

^[2] On July 9, 1985, the Supreme Judicial Court ruled that the commission does not possess the jurisdiction to enforce G.L. c. 268A. § 23. The discussion contained above is based on prior Commission rulings and is intended to provide guidance to you and your appointing official.