August 19, 1982

 

FACTS:

You left a position in a state agency, ABC, in the past year, and are now a managing partner in a private consulting firm. Another state agency, DEF, is currently contemplating contracting with a corporation (Corp.) for the purchase of an item. As a state employee you were not officially responsible for DEF nor its purchases, nor did you participate in these tasks or discuss them with DEF while in your state post. Consulting services to DEF in this matter will not include appearances before the ABC nor any agencies which come under it.

 

QUESTION:

Whether you may now provide the following consulting services to DEF with regard to its purchase from Corp.:

(1) preparing a third party financing prospectus for the purchases;

(2) participating in negotiations relative to a potential
permanent sales contract between Corp. and DEF; and

(3) developing alternative sales arrangements with other suppliers on behalf of DEF.

 

ANSWER:

Yes, although you should be aware that the conflict of interest law will impose restrictions on you and your partners.

 

DISCUSSION:

G.L. c. 268A, s.5 prohibits a former state employee from receiving compensation from, acting as agent or attorney for, or appearing on behalf of, a non-state party. You are a former state employee subject to the provisions of s.5, but since the services you contemplate are to be rendered to the DEF, a state agency,[1] they are not prohibited.

However, by consulting for a state agency, you will again become a state employee.[2] You will therefore be subject to the prohibitions against receiving compensation from non-state parties in relation to matters of interest to the state (s.4), and against having financial interests, directly or indirectly, in contracts made by the commonwealth or a state agency (s.7), among other provisions. The Commission has insufficient information at this time to give more specific guidance as to how the conflict of interest law will affect your activities.

Section 5 of G.L. c. 268A imposes restrictions on the activities of partners of state employees and partners of former state employees. Specifically s.5(c) prohibits
a partner of a former state employee [from knowingly engaging], during a period of one year following the termination of the latter's employment by the commonwealth, in any activity in which the former state employee is himself prohibited from engaging in by [s.5 (a)] and s.5(d) prohibits a partner of a [current] state employee [from knowingly acting] as agent or attorney for anyone other than the commonwealth in connection with any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which the state employee participates or has participated as a state employee or which is the subject of his official responsibility...

Thus, you should note that your partners in the consulting firm are prohibited from accepting the same roles which are prohibited to you, and that if you accept DEF consulting job and thereby become a state employee, your partner will be subject to s.5(d).

Section 23(d) prohibits a state employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. It would prohibit you as a state employee from using your (former) state position to secure the consulting job with (DEF). However, since you did not discuss the prospective consulting job with DEF until after leaving state employment, s.23(d) is not invoked here.

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[1] The definition of "state agency" in G.L. c. 268A includes (definition paraphrased).

[2] G.L. c. 268A, s.1(q) defines a state employee as one "performing services for...a state agency, whether by...contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis..." The Commission does not address here the question of whether, as a consultant, you would be a "special state employee" and thus subject to more lenient treatment under the conflict of interest law; to do so, the Commission would need further information about the actual consultant arrangement.

 

End Of Decision