Opinion  EC-COI-86-1

Date:	02/04/1986
Organization:	State Ethics Commission

Section 7 would allow a part-time Department of Social Services employee to hold a 2nd part-time position with DSS under the public assistance exemption.

Facts

You are currently employed part-time by the Department of Social Services (DSS).  You would like to enter into a part-time 03 contract with DSS as a homeless specialist.  While your 03 contract would be with DSS, the funding for the position would originate in the Department of Public Welfare (DPW), via an inter-agency agreement between DSS and DPW to increase the number of DSS staff out in the field.  You state that the homeless specialist position involves working almost exclusively with homeless families on public assistance, either DPW emergency funds or Aid for Families with Dependent Children.

Referrals are made to the DSS homeless program in three ways.  First, when homeless individuals or families apply to DPW for emergency assistance (including placement in local hotels/motels or shelters by DPW), they are advised by welfare workers that the DSS homeless program is available to help them find permanent housing.  A client's acceptance of the referral is entirely voluntary; the client's receipt of DPW emergency assistance is not in any way contingent upon their agreement to seek services under the DSS program.  The remaining two methods are self-referrals into the DSS program: (1) individuals walking into DSS offices seeking assistance in locating housing, or (2) individuals who originally refused the DPW referral into the DSS program approaching the DSS homeless specialist on their own at the hotel or shelter after seeing positive results experienced by neighbors in the program.

Question

Does G.L. c. 268A, the state's conflict of interest law, permit you to hold both part-time positions with DSS?

Answer

Yes, provided that the exemption standards described below continue to be satisfied.

Discussion

As a DSS employee, you are subject to the provisions of the conflict law.  Because of your part-time status, you are considered a special state employee, which means that the conflict law will apply less restrictively to you under certain circumstances.

Section 7 of Chapter 268A prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency.  This section is intended to prevent state employees from using their positions to obtain contractual benefits from the state and to avoid any public perception that state employees have an ''inside track" on such opportunities.  See Buss: The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. L. Rev. 299 (1965).  The term "contract'' in section 7 refers to any type of agreement or arrangement between two or more parties under which each undertakes certain obligations in consideration of the promises made by the other(s), and thus includes employment arrangements.  As a DSS employee, you would be a state employee with a financial interest in a state 03 contract and therefore fall within the §7 prohibition.

Due to the breadth of the section 7 prohibition, a number of exemptions have been included in this section.  The public assistance exemption provides that the section 7 prohibition shall not apply . . . to a state employee who provides services or furnishes supplies, goods and materials to a recipient of public assistance, provided that such services or such supplies, goods and materials are provided in accordance with a schedule of charges promulgated by the department of public welfare or the rate setting commission and provided, further, that such recipient has the right under law to choose and in fact does choose the person or firm that will provide such services or furnish such supplies, goods and materials.

You appear to currently qualify for this exemption.  Because virtually all of the individuals and families you work with as a homeless specialist are recipients of public assistance, the Commission concludes that you meet the first criterion of this exemption.  EC-COI-84-46.¹  However, should a smaller proportion of clients on public assistance participate in the homeless program, then your compliance with this criterion would have to be reexamined in light of these new facts.  Id., EC-COI-83-98. It also appears that the services are provided to clients in accordance with a schedule established by DPW, which satisfies the second criterion.  Because the clients avail themselves of the services you provide voluntarily, you likewise meet the final criterion of the public assistance exemption. EC-COI-84-46; 83-98.  If receipt of your services was a condition of a client's continued receipt of DPW emergency assistance, then this clause would not be satisfied.  There is no such connection in the facts you present.  As long as the clients are free to accept or reject the housing services offered under the DSS homeless program, the final criterion is satisfied.  

The three requirements of the public assistance exemption serve a dual purpose. First, the exemption seeks to ease the strict application of §7 when dealing with recipients of public assistance who might otherwise be precluded from receiving certain services.  You have indicated that DSS has a shortage of qualified staff to perform services as homeless specialists on a part-time basis.  The exemption requirements also establish safeguards to insure that state employees will not misuse their insider status to take advantage of a vulnerable constituency.   In view of  the  institutional  DSS safeguards which you have described, there does not appear to be any such potential for misuse of your position.   Based on the above, the Commission concludes that both policy considerations are  met in your case.

It does not appear that you qualify under any of the remaining exemptions.^2/   Two of the exemptions,  specifically §7(b) and §7(d), require that you not be employed by the contracting agency. Inasmuch as DSS is the contracting agency for the homeless specialist position,  and you are employed by DSS in your initial state  position, you are ineligible for these exemptions. Likewise, the final two exemptions listed in section 7 contain criteria which are not met by the facts of your situation.

¹ This citation refers to a previous Commission conflict of interest opinion including the year it was issued and its identifying number.  Copies of this and all other advisory opinions are available for public inspection at the  Commission’s office.

² You do qualify for a §7(e) exemption as a special state employee. provided that you file with the State Ethics Commission a statement making full disclosure of your financial interest in the two positions and the governor with the advice and consent of the executive council exempts you.  We note, however, that the gubernatorial exemption has rarely been granted.