Opinion  EC-COI-85-7

Date:	01/31/1985
Organization:	State Ethics Commission

A full-time state employee may also serve as a member of a state board of registration, but only on an uncompensated basis. By accepting compensation, the employee would have a financial interest in a second state contract in violation of § 7. The employee does not quality for an exemption under § 7(b) because the process by which the employee was solicited and selected was based primarily on word of mouth rather than a good faith effort to notify the general public.

Facts

You currently work on a full-time basis as a consultant to state agency ABC. You are being considered for appointment by the Governor as a representative of the public on a board of registration (Board). If selected, you will receive from the Board an annual salary in addition to per diem compensation.

The Governor has not publicized the current public member vacancy in a newspaper or other periodical of general circulation. The search has been limited to a "word of mouth" request to three institutions, seeking resumes from qualified women and minorities interested in issues related to the Board's jurisdiction. Of the four or five individuals who were interviewed, you are the leading candidate.

Question

Does G.L. c. 268A permit you to serve as a Board member while also continuing your consultant work with ABC?

Answer

You may serve as a Board member, but without compensation.

Discussion

As a full-time consultant to ABC, you are a state employee for the purposes of G.L. c. 268A. In view of your full-time responsibilities, you do not qualify for "special state employee" status under § 1(o) which would make you eligible for certain exemptions not otherwise available to full-time employees.^[1]

Section 7 of G.L. c. 268A in general prohibits state employees from having a financial interest in a contract made by a state agency. Prior to 1983, for all practical purposes, full-time state employees were prohibited by § 7 from financial interests in state contracts. See, EC-COI-81-67; 81-125.^[2] Following the enactment of St. 1982, c. 612, the General Court established an exemption, s. 7(b), which allows, in a limited way, certain full-time state employees to have a financial interest in state contracts. The several statutory conditions, which were designed as safeguards against potential insider influence, include a requirement that the contract be "made after public notice or where applicable, through competitive bidding."

Based upon the information which has been provided, the Commission concludes that your receipt of salary and per diem compensation from the Board will give you a financial interest in a contract made by the Board, and that you do not qualify for the § 7(b) exemption because the process leading" up to your appointment has not been sufficiently open to satisfy the public notice requirement.

The Commission has recognized that, in the personal service contract area, the requirements of competitive bidding process may not be practical. See, EC-COI-83-35; 84-10. In such situations, the Commission looks at the solicitation and advertising process to determine whether there are sufficient vestiges of openness and whether equal access to the position has been provided to the general public. EC-COI-83-95. The Commission has been flexible in the type of advertising necessary for a § 7(b) exemption, for example, by permitting advertising in trade or professional journals designed to be circulated to all eligible appointees within the geographic area. EC-COI-83-97; 83-56. However, the Commission requires a good faith effort to notify all qualified individuals. "A process based primarily on word of mouth between a state agency and four other firms does not possess sufficient vestiges of openness to satisfy the public notice requirement," EC-COI-83-95. In view of the limited scope of the solicitation process leading up to your selection, the Commission concludes that your situation is indistinguishable from EC-COI-83-95 and therefore insufficient for "public notice" purposes.

 

End Of Decision

[1] Should your employment status change and your duties wind down such that you are permitted personal or private work during normal working hours, you would then be eligible for special state employee status. Should you become a special state employee, the Commission's opinion to you under § 7 would be different because you would qualify, following disclosure, for an exemption under § 7(d).

[2] These citations refer to prior Commission conflict of interest opinions including the year they were issued and their identifying numbers. Copies of these and all other advisory opinions are available (with identifying information deleted) for public inspection at the Commission offices.