| Date: | 10/13/1988 |
|---|---|
| Organization: | State Ethics Commission |
A full-time state court employee is prohibited under section 4(a) from accepting part-time employment with a private alcohol education program because the referrals of clients to the program would come from the state courts. Section 4(a) prohibits the employee's receipt of compensation in connection with matters in which the state has a direct and substantial interest.
You are a full-time employee of the District Court Department. You have recently been offered a part-time position as an instructor with a driver alcohol education program at a private facility in the Commonwealth. The position would require instruction of two classes, one evening per week. This facility is one of several private agencies which contracts with the Commonwealth to service first offender "operating under" clients referred by the Court, pursuant to G.L. c. 90, s.24(d). You would be paid with private funds and not from funds generated by the state contract. Your class would be comprised of clients referred from the District Court Department, but not from the specific court where you are employed. Your work as a program instructor at the facility would include teaching the course, recording the attendance information
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that yields the pass or fail grade for the course, and forwarding to the facility's director any information on the facility's clients that should be forwarded to the District Court Department.
Does G.L. c. 268A permit you to accept this offer of part-time employment as an instructor in a driver alcohol education program where the class membership would be composed of clients referred by state courts excluding the division of the District Court Department where you are employed?
No, as the instruction would inevitably involve participation in matters of direct and substantial interest to the state.
In your capacity as a full-time employee of one division of the District Court Department, you are a state employee for the purposes of the conflict of interest law. See, G.L. c. 268A, s.1(q); EC-COI-87-41. Section 4 of the conflict of interest law is applicable to your situation.
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[1] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. Long-standing Commission precedent indicates that referrals from a state agency like the state court system are particular matters in which the Commonwealth has a direct and substantial interest. See, EC-COI-85-28; 83-101, 81-105.
The District Court Department is a state agency. EC-COI-84-127. The division of the District Court Department that employs you is part of that agency. See, EC-COI-84-53. Accordingly, your s.4(a) problem is not cured by the elimination of referral clients from the district court that employs you from the classes you propose to teach at this private education program.
The state has a direct and substantial interest in referrals from all the divisions of the District Court Department. See, EC- COI-82-42. This is because the agency made the referrals, the agency will be supervising the referrals and the agency will be evaluating the outcome of the referrals. Your role as instructor would require your assistance in the attendance and cooperation tracking of individual state court referred clients. The state has a direct and substantial interest in the information you would forward, through the facility's program director, to the District Court Department's probation officers on the compliance or noncompliance of various individuals with the program. In short, your compensation from the education program would be in connection with the referral. Compare, EC-COI-82-176 (indicating that a state RMV inspector could be a classroom instructor for a driving school because his compensation was only in connection with his teaching and not with the state exam, the particular matter at issue). Your s.4(a) problem is also not cured by the fact that the education program facility proposes to compensate you out of private funds and not out of funds received from the Commonwealth.[2] Section 4(a)'s restrictions specifically target private compensation in relation to particular matters like these in which the state has a direct and substantial interest.
