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Opinion

Opinion EC-COI-88-23

Date: 11/21/1988
Organization: State Ethics Commission

A full-time police officer traffic-report in a state agency whose official duties include gathering and providing commuter traffic data to the local media, including a local television station, may accept a part-time private consulting position with the television station as a traffic analyst on major construction projects in the Boston area. The private work will be done during the officer's private hours, using only private vehicles, equipment and materials and would not under section 4(a) be in connection with particular matters in which his state agency has a direct and substantial interest. The state employee would also be subject to the provisions of section 6 and cannot participate as a state employee in any matter which could affect the television station's financial interest. 

Fact

You are a full-time police officer with a state agency. For a number of years, you have held the position of traffic reporter. In this capacity, it has been your responsibility to gather traffic information and to provide commuter traffic information to the local media. Specifically, for the past year, you have been providing, consistent with the station's agreement with your state agency,, a local television station with traffic reports for their evening newscast[1] Your compensation for the position of state agency traffic officer consists solely of your pay as a state agency police officer. You work a split shift as a traffic reporter, so that you are off duty for several hours in the middle of the day. The local television station that airs your reports has now offered you a part-time job as a traffic analyst where you would use your off-duty time to gather information on and to produce reports for broadcast on matters such as major construction projects in the Boston area and the effect they would have on traffic. You propose to use your name in producing these reports as well as to use only private vehicles, materials and equipment in your private work.

Questions

Does G.L. c. 268A permit you to accept this offer of part time employment as a private individual and traffic analyst for this local television station?

Answer

Yes, subject to certain limitations set forth below.

Discussion

In your capacity as a state agency police officer, you are a state employee for the purposes of G.L. c. 268A, See, G.L. c. 268A, s.1(q); EC-COI-84-124. Three sections of G.L. c. 268A are relevant to your question.[2]

 1. Section 4

 Section 4(a) generally prohibits a state employee, otherwise than as provided by law for the proper discharge of his official duties, from directly or indirectly receiving or requesting compensation from anyone other than the Commonwealth or a state agency, in relation to any particular matter[3] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. Although the local television station is someone other than the state, the compensation which you would receive from the station would not be in relation to a particular matter in which the state has a direct and substantial interest, The compensation, rather, would be in relation to the reporting you would do on general traffic issues in the area. The Commission has held that general policy issues, EC-COI-85-16, and entire construction projects are not particular matters within the meaning of the statute. EC-COI-85-22. Indeed, although the state agency police department that employs you has a direct interest in traffic information, as a result of its traffic supervision function, we conclude that the interest of the state agency in general traffic stories is not substantial. Although the Commission has held that certain matters which the state extensively regulates or supervises are of direct and substantial interest to the Commonwealth, e.g., cable television licenses (EC-COI-79-6) and local liquor licensing (EC-COI-79-6), the production of general traffic stories is not one of these matters. In addition, Commission precedent indicates that radio broadcasts are not particular matters of direct and substantial interest to the Commonwealth merely because they are subject to state regulation. EC-COI-82-47. Therefore, s.4(a) does not apply.

 2. Section 6

 Section 6 prohibits a state employee from participating[4] as a public official in any particular matter in which he, his immediate family[5] or partner or business organization in which he is serving as officer, director, trustee, partner or employee, or any person with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest. Under this section, you would be prohibited from participating as a state agency traffic reporter in any particular matter in which the local television station had a financial interest, Were a contract, submission or other particular matter affecting the station's financial interest to come before you in your state agency position, you would have to advise your appointing official and this Commission in writing of the nature and circumstances of the particular matter and make full disclosure of the financial interest involved. You may not thereafter participate in the matter 

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unless your appointing official makes 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 you.

 3. Section 23

 Two provisions in G.L. c. 268A, s.23 are also relevant to your question. First, s.23(c) prohibits a state employee from disclosing confidential information which he has acquired in his state position or from using such information to further his personal interest. See, EC-COI-85-23. 

Section 23(b) (2) prohibits a state employee from using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions of substantial value[6] which are not properly available to similarly situated individuals. To comply with this provision, you must keep your private traffic analyst duties separate from your state agency work schedule and not use state resources to assist you in your capacity as a local television station's traffic analyst You must also avoid giving preferential treatment to the local television station vis-a-vis other television and radio stations who enter into agreements with the state agency for your services as traffic reporter. See, EC- COI-87-13. Finally, you must avoid using your status as a state agency police officer to gain access to information or to individuals which would be unavailable to you as an employee of a local television station.

[1] You also, at the direction of your agency, provide traffic reports to a local radio station under the same stage name.

[2] So long as your private employment with the local television station is not intended to compensate or reward your prior state agency traffic reporter work and is intended to compensate you for separate traffic analysis work you will do for the local television station, s.9 of G.L c. 268A is not implicated despite the fact that your private work would reflect the expertise you have acquired as a state agency traffic reporter. See, EC-COI-81-154. Your proposed salary is, as we understand it, comparable to what other similarly situated individuals earn for these services.

[3] "Particular matter," any judicial or other proceeding. application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L c. 268A, s.1(k).

[4] "Participate," 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. G.L. c. 268A, s.1(j).

[5] "Immediate family," the employee and his spouse, and their parents, children, brothers and sisters. G.L. c. 268A, s.1(e).


[6] An item of substantial value is anything valued at $50 or more. See, Commonwealth v. Famigletti, 4 Mass. App.584 (1976).

 

End Of Decision

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