May 10, 1989

FACTS:


You are an administrative employee for state agency ABC. In
your current capacity, you are responsible for the administration
of certain claims, including the determination of acceptance or
rejection of claims, payment of claims, monitoring of claims and

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representing ABC in state administrative hearings on contested
claims.

With respect to recent claims, ABC has contracted, pursuant to
a competitive bid process, with an outside law firm to administer
these claims. The firm's current two-year contract will expire in
1989. You are interested in resigning and in entering into a
contract with ABC to perform claim administration services for ABC
under a successor contract to take effect later this year.


QUESTION:


Does G.L. c. 268A permit you to apply for and perform services
for ABC under a claims administration services contract?


ANSWER:


Yes, subject to certain conditions described below.


DISCUSSION:



As an ABC employee, you are considered a state employee for the
purposes of G.L. c. 268A. Were you to resign and accept employment
with ABC handling claims, you would retain your status as a state
employee. See, G.L.c 268A, s.1(q). While nothing in G.L. c. 268A
outright prohibits your changing your status with a state agency
from full-time employee to consultant, the law places certain
restrictions on your official activities.


1. Section 6


This section prohibits you from participating[1] as an ABC
employee in any particular matter[2] in which you have a
foreseeable financial interest. Your application to ABC to perform
services for ABC would be a particular matter in which you have a
financial interest. Following your submission of such an
application, you may not participate as an ABC employee in any
discussions or decisions relating to your application. For
example, since you would customarily be part of a chain-of-command
in the ABC interview and selection process, you must file a written
disclosure of your interest to both your ABC appointing official
and the Commission, and you must abstain from any participation in
the selection process unless otherwise directed by your appointing
authority.[3]

The prohibition of s.6 applies to all matters in which you have
a financial interest. Currently, you participate as an ABC
employee in claims matters which are handled by an outside law firm
pursuant to an existing contract. To the extent that the firm's
performance under the contract will presumably be an important
consideration in the ABC's decision as to whether to renew the
firm's contract, your status as a likely competitor gives you a
financial interest in determinations with respect to the firm's
current contract. We therefore advise you to notify promptly your
appointing official of your intentions and seek a determination
under G.L. c. 268A s.6. Your appointing official has a number of
options, including granting you written permission to continue
participating in determinations relating to the firm's current
contract. Absent receipt of such written permission, your
continued participation in matters relating to the firm's current
contract will place you in violation of s.6.


2. Section 4(c)


Under this section, a state employee may not act as the agent
or attorney for any non-state party in connection with any
particular matter in which the Commonwealth or a state agency is
a party or has a direct and substantial interest. Your application
to the ABC for the claims contract is a particular matter in which
a state agency is a party. As long as you are filing and pursuing
the application on your own behalf as a solo practioner, you will
not be regarded as the agent or attorney of a non-state party for
the purposes of s.4. See, {Commission Advisory No. 13}, Agency.
On the other hand, s.4 would prohibit your representing a law
partnership, or other association comprised of you and other
attorneys in connection with the application.[4]


3. Section 23


This section applies to both you and ABC officials. Under
s.23(b)(2), a state employee may not use or attempt to use his
official position to secure for himself or others unwarranted
privileges of substantial value and which are not properly
available similarly situated individuals. Where the ABC has
previously awarded the workers compensation contract based on a
competitive bid process, it might very well be an unwarranted
privilege for you if the ABC were to disregard that process for
your benefit. Similarly, your seeking such an exemption might also
place you in violation of s.23(b)(2). By retaining the competitive
process, the ABC will also avoid creating the appearance of undue
favoritism towards you. See, G.L. c. 268A, s.23(b)(3).



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[1] "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).

[2] "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).

[3] Your s.6 disclosure has been received and is a public document.
G.L. c. 268A, s.24.

[4] It is unclear whether, following your resignation, you will
have partners in your law practice. If so, your partners will be
subject to certain restrictions in their private practice. See,
G.L. c. 268A, s.5(c), (d); we are available to render further
advice construing these paragraphs if either you or your partners
wish.

End Of Decision