Related to:
Opinion

Opinion EC-COI-89-18

Date: 06/19/1989
Organization: State Ethics Commission

An employee of a private construction firm will not be considered a state or public employee if he performs advisory services for a private, non-profit corporation that was established to provide advice to the Boston business community regarding the Third Harbor Tunnel and Central Artery construction projects. If his construction company is hired to do planning and/or re-construction work on the project, the employee should contact the Commission for further advice.

Facts

You are employed by the Perini Corporation (Perini), a company which provides construction services. Perini intends to bid at some future date on the planning and reconstruction work on the Central Artery the Third Harbor Tunnel or adjacent access roads. You have recently been invited to provide services on a voluntary basis for the Artery Business Committee (ABC), a private non-profit corporation established and funded by major Boston businesses to provide advice and information to the Boston business community in connection with the Third Harbor Tunnel and Central Artery construction projects. You expect to engage in meetings with state, municipal and federal agencies in connection with these projects on behalf of the ABC.

Question

1. By performing advisory services to the ABC, will you be considered a state employee for the purposes of G.L. c. 268A?

2. By performing advisory services to the ABC, will you be considered a public employee for the purposes of G.L. c. 268B?

3. What limitations on your ABC activities will arise under G.L. c. 268A if Perini is hired to perform planning and/or reconstruction work?

 

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Answer

1. No.

2. No.

3. You will be subject to certain limitations described below.

Discussion

1. Jurisdiction under G.L. c. 268A

In order to be considered a state employee for G.L. c. 268A purposes, you must either hold a position in or provide services for a "state agency."[1] Based on the information we have received, we conclude that the ABC is not a state agency for the purposes of G.L. c. 268A. The ABC has been privately established and funded, and represents the interests of its corporate membership, rather than any state agency. In summary, your loyalty in performing your services on behalf of the ABC will be to the ABC, and not to any particular government agency. Accordingly, you will not be considered a state employee through your performance of voluntary services on behalf of the ABC. See, EC-COI-84-65; 83-3; 83-21. We note that the definition of "state employee" in s.1(q) does contain restrictions on subsequent construction work for individuals who have performed engineering or environmental analysis for major construction projects either as a state consultant or as part of the consultant group for the state. Because the services which you provide for the ABC do not appear to be as state consultants or as part of a state consultant group, the restrictions of s.1(q) will not place limitations on your construction work based on your services for the ABC. See, EC-COI- 83-165.

2. Jurisdiction under G.L. c. 268B

The mandatory financial disclosure requirements of G.L. c. 268B apply to any individual who holds a major policy-making position in a governmental body. G.L. c. 268B, s.1(h) defines a "governmental body" as "any state or county agency, authority, board, bureau, commission, council, department, division or other entity." Based on the information we have received, the ABC does not appear to qualify as a governmental body under G.L. c. 268B. In particular, the membership, control, objectives and responsibilities of the ABC are consistent with organizations which the Commission has previously found to be excluded from the definition of governmental body. See, EC-COI-FD-87-1; 86-1; 79-3. Accordingly, the ABC is not a governmental body for G.L. c. 268B purposes. Moreover, even if the ABC were treated as a governmental body, the fact that you perform the services for the ABC on an uncompensated basis would exempt you from G.L. c. 268B. See, G.L. c. 268B, s.1(o) (uncompensated individuals are not considered public employees for the purposes of G.L. c. 268B).

3. Application of G.L. c. 268A Following Hiring of Perini

Should Perini be a successful bidder on the prospective planning and reconstruction work for the Third Harbor Tunnel and Central Artery, the provisions of G.L. c. 268A could potentially apply to you or to certain other Perini employees. While the Commission cannot render advice concerning hypothetical situations, you should be aware that the Commission has previously addressed the application of G.L. c. 268A to employees of corporations which contract with public agencies. See, EC-COI-87-8; 86-22; 86-21; 83- 129. As applied to Perini, these opinions hold that, while Perini would not be considered a "state employee" through its contracts with state agencies, key Perini employees who are either specifically named in the state contracts or whose specialized services the state is expecting to be performed under the contract will be considered state employees for G.L. c. 268A purposes. At this time, it would be premature to speculate on the effect, if any, which any such "state employee" status would have on those individuals who are performing advisory services for the ABC. While G.L. c. 268A, s.4(c) does prohibit a state employee from representing non-state parties in connection with matters of direct and substantial interest to a state agency, s.4(c) might not restrict activities on behalf of the ABC while holding state employee status, depending on whether the employee is a "special state employee" under G.L. c. 268A, s.1(o) and the extent of the employee's activities on behalf of the ABC. We therefore suggest that you renew your opinion request with us when and if Perini enters into a contract status in connection with these state projects.[2]

 

* Pursuant to G.L. c. 268B, s.3(g), the requesting person has consented to the publication of this opinion with identifying information.

[1] "State agency," any department of a state government including the executive, legislative or Page 255 judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such departments and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town.

[2] We would also note that, under G.L. c. 268A, s.23(b)(3), should you be considered a state employee in the planning or construction process, you should disclose to your state appointing official the fact that you have previously provided services for the ABC in connection with these construction projects. By such disclosure, you will dispel any appearance of improper influence in the performance of your duties under the state contract.

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