May 9, 1990

 

FACTS:

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You recently retired from your position a Supervisor for the
Department of Education (DOE). You are now interested in consulting
to school districts and wish to know how G.L. c 268A applies to
your proposed consultation to local school systems with which you
may have had prior official dealings as DOE Supervisor.
 


QUESTION:

 

Does G.L. c. 268A permit you to consult with local school
systems?
 


ANSWER:


Yes, subject to the conditions set forth below.
 


DISCUSSION:


Following your retirement from DOE, you became a former state
employee and are subject to the restrictions contained in s.s.5 and
23(c) of G.L. c. 268A.


1. Section 5(a)


This section prohibits you from consulting to or otherwise
receiving compensation from any non-state party such as a school
system if your consultation is in connection with any agreement or
grant, or other particular matter[1] in which you previously
participated as a DOE employee. For example, if you previously
reviewed an application which, following final approval, became
effect after your retirement, you are prohibited by s.5(a) from
consulting to a school district in connection with the same grant.
EC-COI-88-14. On the other hand, s.5(a) does not prohibit your
consulting on successor applications since the Ethics Commission
regards each annual application or grant as a separate particular
matter. EC-COI-79-34. Consequently, you will need to determine
whether any grant on which are invited to consult was one in which
you previously participated as a DOE employee. In light of the one-
year duration of those grants, the s.5(a) restrictions should not
permanently limit your proposed consultations.


2. Section 5(b)


Under s.5(b), you are subject to a supplementary one-year bar
on your personally appearing before state agencies in connection
with matters in which you did not previously participate but which
were nonetheless under your "official responsibility"[2] as DOE
Supervisor. For example, if a city had filed an application for
FY1991 while you were that city's Supervisor, you would be subject
to a one-year bar on your appearing before a state agency in
connection with that FY1991 grant, even if you had not participated
in the application process prior to your retirement.


3. Section 23(c)


This section, which is largely self-explanatory prohibits a
state employee from disclosing or otherwise misusing any
confidential information which he acquired as a state employee. As
applied to you, you must refrain from disclosing to your school
district clients any confidential information which you acquired
at DOE, such as internal DOE standards for evaluating school system
compliance with grants.
 

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[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination,

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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.

[2] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action.

 

End Of Decision