State Employees, G.L. c. 268A, § 4 Legal Opinions

Formal Legal Opinions addressing G.L. c. 268A, § 4
  • EC-COI-82-153

    May a consultant/attorney who works part-time for a House Committee also represent a private organization which is interested in establishing off-track betting facilities in the Commonwealth?

  • EC-COI-82-176

    May a state employee perform classroom instruction for a driver education course while simultaneously employed by the RMV?

  • EC-COI-83-137

    The conflict of interest law does not permit legal counsel for a legislative committee to act as attorney for plaintiffs in a lawsuit filed on behalf of residents of the Commonwealth where the Commonwealth is a party and has a direct and substantial interest in the lawsuit.

  • EC-COI-86-3

    A state employee at the Secretary of State's office is considering a real estate venture that may seek limited partners which is overseen by the Secretary of State's office. Permissible but restrictions apply under sections 4, 5(d), 6 and 23.

  • EC-COI-87-3

    Two members of the board of directors of the Community Economic Development Assistance Corporation are special state employees and may continue their outside activities, subject to certain conditions.

  • EC-COI-87-4

    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.

  • EC-COI-87-5

    A state employee may serve as a paid member of the board of directors of a bank.

  • EC-COI-87-6

    The chief executive officer of a company which has performed services for the campaign committee of the head of a state agency may accept employment with that agency.

  • EC-COI-87-13

    A chairman of a state agency may serve on the board of directors of a bank mutual fund, subject to provisions.

  • EC-COI-87-17

    Members of the DEQE Water Resources Management Advisory Committee are state employees.

  • EC-COI-87-23

    Section 3 prohibits a state agency head from receiving for himself a gift of substantial value relating to duties which the official has performed. By establishing a charitable trust which will receive and expend such gifts, the official will not have received for himself a gift in violation of section 3. He must observe the safeguards of section 23, however, in his official dealings with the donor.

  • EC-COI-87-26

    A former state employee who has recently become a special assistant attorney general may privately represent a client in the appeal of an adverse ruling by a state agency which will be represented by another bureau in the attorney general's office. Under section 23, the special attorney general is prohibited from disclosing confidential information obtained on the job and from using his official position to benefit his private client.

  • EC-COI-87-29

    A newly-hired state employee may receive deferred compensation from his former law firm for services performed prior to becoming a state employee, but must abstain from participating as a state employee in all matters affecting the financial interest of the firm's partners while he remains a partner in the firm's investment fund. His receipt from the firm of free tax preparation services for the current year would not violate section 23 because the firm makes the same service available to all former employees similarly situated.

  • EC-COI-88-15

    A state employee who is also a partner and part owner of a private development company is subject to the following provisions: (1) Under section 4 the employee cannot act as an agent for or receive compensation from the company in relation to any applications for funds from state programs; (2) an exemption under section 7(b) must be filed with the Ethics Commission if the company wishes to apply for funding under state programs; and (3) under section 23(b)(3) the employee must not be unduly influenced by his private business in his official actions.

  • EC-COI-88-17

    A full-time state employee may become an unpaid board of trustees member for an organization for the homeless subject to certain restrictions. Section 4(c) would prohibit the employee from acting as an agent or representative for the organization before state agencies on matters in which the state has a direct and substantial interest. This section would not prohibit the employee from participating in internal board of director discussions including matters in which the state has an interest. An exemption from section 4(c) would not be available since the employee's official duties do not specifically authorize membership on the Board o f trustees. If the state employee's duties require her to participate in a matter which would financially affect the Board, she must comply with a section 6 exemption to avoid a violation of that section.

  • EC-COI-89-5

    The chairman of the board of regents of higher education may also serve as "of counsel" to a law firm which represents clients in matters within the official responsibility of the board of regents, subject to certain conditions. He must abstain from participating as chairman in any matter in which his firm represents a client, and must arrange to have the firm segregate from his compensation any fees connected with representation in board-related matters. Because his of counsel relationship does not have the attributes of a partnership, the firm's partners may represent private clients in matters within the official responsibility of the board.

  • EC-COI-89-12

    A member of the judiciary may accept membership on the board of advisors to a hospital, subject to certain limitations. He must avoid appearing on behalf of the hospital before any state agencies and must dispel any appearance of undue favoritism as a judge towards the hospital.

  • EC-COI-89-15

    An unpaid member of a state authority is a special state employee. He may retain his membership on the board of overseers of an institution that falls under the jurisdiction of his state authority because, in this case, the overseers do not have management authority over the institution, but instead have advisory authority. Therefore, the employee's status as a board member does not require his abstention under section 6, although proper disclosures under section 23 could be necessary in certain instances. As a special state employee, he must avoid acting as agent or attorney for the institution in connection with anything under his official responsibility at the authority.

  • EC-COI-89-29

    A special state employee who is also a private attorney may participate as a state employee in the re-sale of property previously purchased by his state agency from a former legal client of the special state employee. The employee must abstain from participating in particular matters that affect his own financial interests or those of his immediate family, partners, or associates, and must

  • EC-COI-89-31

    A member of the General Court who is also an attorney would be subject to section 4 if he were to become "of counsel" to a large law firm which either currently or potentially represents clients before state agencies. Unless the Legislator is deemed to have "partner" status at the private law firm, the section 4 restrictions will not apply to other attorneys in the law firm.

  • EC-COI-90-4

    Section 4 of G.L. c. 268A permits housing court specialists to perform code inspection work for a housing authority.

  • EC-COI-90-12

    A private attorney who volunteers to serve as a mediator for the state Department of Environmental Protection pursuant to a Department Environmental Protection/Boston Bar Association program will be considered a special state employee under G.L.c. 268A. The restrictions which G.L. c. 268A, section 4 places on the attorney's private law practice will be limited as long as the attorney does not serve as a mediator for DEP for more than 60 days in any 365-day period.

  • EC-COI-90-13

    A state employee may work after hours for a municipal waste treatment plant as long as he does not act or vote in his municipal capacity on any matter within the purview of his state agency. The employee's work for a private company, however, may not relate to any matter in which DEP or any state agency has a direct and substantial interest.

  • EC-COI-91-4

    A state employee who serves as a member of the boards of directors for two private corporations may accept compensation and otherwise act in such positions because the companies' activities do not relate to any contract or other particular matter in which the Commonwealth or an agency thereof is a party of has a direct and substantial interest. Similarly, a state employee may provide consulting services to a quasi-public agency of another state where none of the agency's activities relate to a contract or other particular matter in which the Commonwealth is a party or has a direct and substantial interest.

  • EC-COI-91-5

    Section 4 of G.L. c. 268A, would prohibit outside counsel for a state agency board from representing a municipality in litigation against the state agency because, although a special state employee, he served as outside counsel to the state agency board for more than 60-days during a floating 365 day period applicable to special state employees.

  • EC-COI-91-11

    A state employee who chose to take required "furlough" time (under St. 1990, c. 6, section 90) as unpaid leave continued to be a state employee under G.L. c.268A, in view of the employee's receiving continued health insurance and other benefits and having a reasonable expectation of returning to work. However, the employee was a "special state employee" for the purpose of analysis under Sections 4 and 7.

  • EC-COI-92-4

    A volunteer state employee may continue to receive compensation from his private employer, from whom he has obtained a leave of absence, provided that a specifically tailored state regulation authorizes the arrangement, notwithstanding the restrictions of G.L. c. 268A, section 4. The regulation would make the arrangement "as provided by law for the proper discharge of official duties" within the meaning of section 4. The state employee will, however, be subject to other guidelines under c. 268A.

  • EC-COI-92-8

    A member of the General Court may hold, and receive compensation for, an elective or appointive municipal office without the necessity of complying with the "purview" restrictions applicable to other state employees (found in G.L. c. 268A, section 4). Members of the General Court are exempt from the restrictions of section 4, except under limited circumstances.

  • EC-COI-92-16

    Under some circumstances, a former state employee who later contracts with a different state agency is covered by the restrictions of both section 4 and section 5.

  • EC-COI-92-20

    The superintendent of a public school system who serve on a computer company's users' advisory committee could not accept from the company payment of her travel, hotel and meal costs to attend at an advisory committee meeting. The superintendent had previously entered into contracts with the computer company on behalf of the school system. Section 3 would not prohibit receipt of travel and associated costs if the municipality had a by-law or charter provision regulating vendor paid travel.

  • EC-COI-92-22

    Section 4 permits an employee of the state Department of Environmental Protection (the Department) also to serve as a member of a local Board of Selectmen. He must, however, as a Selectman, abstain on certain matters which fall within the purview of the Department.

  • EC-COI-92-25

    A state environmental police officer may also be appointed to an unpaid municipal conservation commission, but he may not act as that commission's agent in relation to any particular matter within his state agency's purview. In effect, he may also not perform his state environmental police duties within that town.

  • EC-COI-93-5

    An agent of the Division of Registration assigned to the Pharmacy Board of Registration may be employed as a registered pharmacist outside of his normal state working hours provided that he does not serve as the principal pharmacist for the pharmacy and will therefore not have dealings with any agency of the Commonwealth. Under section 6, as an agent for the Division, he may not participate in inspections or investigations of the pharmacy by which he is privately employed or of any of the geographic competitors of that pharmacy.

  • EC-COI-93-9

    A former state employee cannot receive private compensation in connection with particular matters in which he participated as a state employee. Where a company provides services that the former state employee is prohibited from providing himself, mere investment income is not "compensation," unless the individual is active in the business. Such "compensation" (i.e. the proceeds from the prohibited sources) must be segregated from any pool of money which is used to pay the individual his salary or to determine his share of profits. Finally, fellow officers and shareholders of a corporation are not "partners" of the former state employee for purposes of section 5(c), unless there is reason to disregard the corporate entity.

  • EC-COI-93-12

    The "municipal exemption" to Section 4 prohibits a paid municipal official who is also an employee in the Governor's Office from voting or acting on any matter which is within the "purview" of the Governor's office. Since the Governor's purview encompasses the entire Executive Branch, the purview limitation will restrict the municipal employee to a large degree. The municipal employee may wish to relinquish his municipal salary, as the municipal exemption restricts unpaid municipal employees only in the narrow circumstances when he acts as agent for a municipal agency or municipality. Thus, an unpaid municipal employee will be subject to the "purview" limitation only where he acts as an agent for the municipality or a municipal agency.

  • EC-COI-93-24

    268A and 268B would regulate the private law practice of a potential appointee to the State Ethics Commission. The potential appointee would be unable to take any official action on matters involving clients represented by her private law firm. Fellow members and associates of her firm (which is a Professional Corporation) are not "partners" for the purposes of section 5(d), unless there is reason to disregard the corporate entity.

  • EC-COI-94-10

    Using a five-factor jurisdictional test, a Governor's advisory commission is determined to be a public instrumentality for purposes of G.L. c. 268A. Members of the commission who are not otherwise employed by the Commonwealth will be subject to the conflict of interest law as special state employees.

  • EC-COI-95-6

    A state employee would violate c. 268A, section 4 by working for a private school administering tests for state licenses which are part of the state employee's official duties.

  • EC-COI-95-9

    A member of the General Court, privately employed as a residential loan officer, is advised that he may not accept commissions for initiating loans which involve state financial assistance programs. Also, his private work is subject to the restrictions of G.L. c. 268A, sections 4, 6 and 23.

  • EC-COI-96-1

    A Special Assistant Attorney General (SAAG) appointed by the Attorney General to represent the Energy Facilities Siting Board in an appeal of a decision before the Supreme Judicial Court can represent private clients in litigation involving the Attorney General's Office without violating G.L. c. 268A, section 4 because the SAAG serves only the Energy Facilities Siting Board and not the Attorney General's Office.

  • EC-COI-97-2

    A state official who is an attorney in private practice may represent law clients before the state Division of Industrial Accidents.

  • EC-COI-97-3

    A charter school is a public rather than private entity and a state rather than a municipal agency. A charter school trustee who serves without election or appointment cannot obtain an exemption under section 6. A charter school trustee may serve on an elected school committee subject to certain restrictions under sections 4, 6, 17, and 23.

  • EC-COI-98-1

    Fire Safety Commission and Automatic Sprinkler Appeals Board may not receive compensation from a client in connection with work that might be submitted to his board or result in an appeal.

  • EC-COI-98-6

    As used in section 4, "serves on no more than sixty days" means substantive services provided on any portion of a calendar day.

  • EC-COI-98-7

    A state employee who is a lawyer in private practice may not represent clients in connection with discrimination claims filed against their employers with the Massachusetts Commission Against Discrimination.

  • EC-COI-99-7

    The principals of a general partnership which is a member of a company that has a contract with a state agency are special state employees for conflict of interest law purposes. The partners may receive compensation from or act as agent of attorney for a private corporation with respect to a development project because they did not participate in the project as state employees; it is not the subject of their official responsibility; and they served as state employees for less than 60 days in the relevant period of 365 days.

  • EC-COI-03-1

    Pursuant to G.L. c. 268A, section 4, a probation officer may receive statutory fees (compensation) from a party other than the Commonwealth for services rendered as a constable in relation to litigation matters involving only non-state parties. A probation officer may not receive compensation as a constable for services rendered in connection with criminal proceedings or proceedings before a state court or agency where the Commonwealth or a state agency is a party or has a direct and substantial interest. (This opinion modifies EC-COI-94-4.)

  • EC-COI-10-2

    The conflict of interest law does not prohibit a DPL investigator/inspector, who is not involved in creating, evaluating, or administering examinations by the Board and has no role in the Board’s policies, approvals or audits of education programs, from, during his time off from his state position and in his private capacity, engaging in private or other non-state plumbing and gas fitting course teaching activities for private or other non-state compensation, provided that those teaching activities are limited exclusively to actual teaching of course subject matter and do not include curriculum development, student evaluation, testing, grading, attendance keeping or reporting, or any other activity relating to the process of initial or ongoing state licensing.

  • EC-COI-90-8  

    A state agency counsel is advised on the application of G.L. c. 268A, section 4 to his part-time employment as town counsel.

  • EC-COI-85-82  

    A member of the General Court is permitted under section 4 of the conflict of interest law to represent clients before the state Industrial Accident Board.


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