Opinion  EC-COI-87-4

Date:	11/21/1987
Organization:	State Ethics Commission

A member of the General Court may continue employment as a consultant to a company as long as his compensation is not derived from any contracts between the company and the state, and he refrains from appearing before state agencies in connection with state contracts or other particular matters.

Facts

You are a member of the General Court. Prior to your election, you were employed by a private company (Company). The Company is funded by public and private sector grants, and approximately one-half of the Company's budget is derived from a contract with state agency ABC.

You have notified the Company's board of directors that you will be unable to continue serving as a full-time employee and the Company is in the process of selecting your successor. The Company has requested you to continue with the Company on a short-term consultant basis until your successor is able to assume full responsibilities. You estimate this period to be two or three months. Your Company compensation during this period will not be attributable to any contract between the Company and an agency of the commonwealth. Your compensation will be derived entirely from a Company grant received from private entities.

Question

Does G.L. c. 268A permit you to continue working for the Company on a short-term basis while you also serve as a member of the General Court?

Answer

Yes, subject to certain limitations described below.

Discussion

As a member of the General Court, you are a "state employee" for the purposes of G.L. c. 268A. You are therefore subject to certain limitations in both your Company and legislative activities.

I. Limitations on your Company Activities

Based on your description of the Company, we conclude that G.L.c. 268A does not place any inherent prohibitions on your short-term employment with the Company. While G.L. c. 268A, s.7 would restrict your employment if you had a financial interest in a Company contract made with a state agency, your proposed employment will not violate s.7 because your compensation would be derived entirely from non- state sources.[1]

Aside from regulating the source of your Company compensation, G.L. c. 268A places limitations on your Company activities which involve the state. Specifically, G.L. c. 268A, s.4 prohibits you from certain paid, personal appearances on behalf of the Company before any state agency. The two state agencies whose dealings with the Company are most likely to raise issues for you under the conflict of interest law are ABC and the General Court. With respect to ABC, s.4 prohibits you from meeting with ABC officials, either to persuade them to continue the ABC contract with the Company or to resolve problems which have arisen in the Company's implementation of the contract.[2]

With respect to the Company's dealings with the General Court, we understand that you will not be expected to serve as the Company's legislative agent, and that the Company's legislative dealings, if any, will be handled by another individual. Should your Company duties change and require your dealing with the General Court, we will need to examine whether your paid Company responsibilities are "inherently incompatible with the responsibilities of [your] public office." G.L. c. 268A, s.23(b)(1).

2. Limitations of your Legislative Activities

During the period of your continued employment with the Company, you will be subject to G.L. c. 268A, s.6. Under this section, you must abstain from participation as a legislator in any decision, or determination, including the enactment of special legislation,[3] in which the Company has a financial interest. This section should not pose problems for you because most legislative matters in which the Company has an interest neither affect the Company's financial interest nor are

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related to the enactment of special legislation. You will be required to abstain, however, from legislative deliberations over the line item in the EOEA budget which authorizes the appropriation for the Company's contract. This requirement will not apply once your employment with the Company has ended.

Nothing in G.L. c. 268A s.6 prohibits your legislative advocacy for general policy priorities which are shared by the Company. For example. if you were to serve as a member of a special legislative commission or standing legislative committee which addressed international-trade issues, your activities would not violate s.6 unless you were considering a particular decision, determination, contract or special legislation in which the Company had a financial interest.

You should be aware that G.L. c. 268A, s.23(b)(2) prohibits the use of your official legislative position to secure unwarranted privileges or exemptions of substantial value for the Company. Those privileges or exemptions which you provide for the Company must be available to other organizations as well. EC-COI-81-88.
 

[1] Given the short-term nature of your Company employment, you cannot be said to have an indirect financial interest in the Company's contact with ABC. Specifically, the viability of your short-term contract will not be affected by the existence of an ABC contract. Should your Company employment become long-term, then we would need to examine whether you have an indirect financial interest in the ABC contract even though you will not be receiving funding directly from that contract,

[2] Although s.4 contains certain exemptions for Legislators where the matter before the state agency is ministerial or involves a quasi-judicial proceeding, none of these exemptions applies to the activities discussed above.

[3] The enactment of general legislation, on the other hand, is exempt from the definition of "particular matter" and the abstention requirements of s.6.