July 6, 1988

 

FACTS:

You formerly served as manager a state agency ABC. In that capacity, you were involved in an application by DEF for a grant. Specifically, you contacted DEF officials to encourage their application for a grant. Following the receipt of the DEF application, you spent several weeks on this project researching information relating to the grant. You coordinated an independent review committee evaluation of the application; the committee's recommendations were generally favorable. Prior to your departure from ABC, you recommended that ABC grant the DEF an award under the program. ABC subsequently approved the grant.

You now wish to work for a consulting firm in connection with the grant awarded by ABC to DEF. As we understand it, if the firm is selected as consultant to write the construction bid specifications, and to make the project bidder recommendations for DEF, you would be interested in working for the firm to write the speciflcalions.
 


QUESTION:

Does G.L. c. 268A permit you to work for the firm in connection with the grant?
 


ANSWER:

No.

 

DISCUSSION:

Upon your departure from ABC, you became a former state employee for the purposes of G.L. c. 268A. Under G.L. c. 268A, s.5(a), a former state employee is prohibited from receiving compensation from a non-state party in connection with any contract, decision or other particular matter[1] in which he

Page 204

previously participated[2] as a state employee and in which the state is a party or has a direct and substantial interest.

The ABC grant award to DEF is a particular matter under G.L. c. 268A, s.1(k), and if the firm is selected as consultant, your work for the firm would provide you compensation in connection with that grant award. Specifically, you would be preparing specifications for a construction bid to DEF in the implementation of the same grant award in which you were previously involved at ABC and would be performing services which were contemplated in the award. See, EC-COI-87-31. These design phase requirements were envisioned in ABC's drafting of the grant proposal, and ABC officials will be reviewing the implementation of the grant by DEF, including the firm's performance in carrying out the design phase work. The critical question for G.L. c. 268A, s.5 purposes is whether your previous involvement in the grant award prior to your departure constituted "personal and substantial participation" in the grant award. We conclude that it did.

In prior rulings, the Ethics Commission has distinguished conduct which is ministerial, pro-forma or preliminary from conduct which is deemed substantial. See, In the Matter of James Geary, 1987 Ethics Commission; In the Matter of John Hickey, 1983 Ethics Commission 158. What is clear from the Commission's rulings is that an employee need not have given final approval to a grant in order to have participated in the grant.
It is also well-settled that a state employee who has recommended awarding a grant may not be paid in relation to the same grant. EC-COI-79-18; 79-34; 79-69; 81-172. On the other hand, if an employee had no involvement in the development of grant specifications or in the planning and preparation, or if the preparation work was insignificant or too preliminary. the employee will not be regarded as having participated. See, EC- COI-79-4; 79-85; 81-159.
Upon reviewing these principles and applying them to your facts, we conclude that you participated as an ABC employee in the grant award to DEF. This conclusion is based on the substantive role which you played in initiating the DEF proposal, in personally reviewing the DEF application and independent review committee process, and in recommending that ABC grant an award to DEF.
While it is true that you did not make the final decision, your recommendation, together with your prior activities. in connection with the process, lead us to conclude that your previous participation was personal and substantial in the grant award. Consequently, you may not consult for the firm in connection with the same grant award. This does not mean that the firm cannot apply for the contract, but rather that you may not work for the firm under the DEF grant award.[3]

---------------

[1] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, contraversy, 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).

[2] "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. 268, s.1(j).

[3] The Commission has recognized that "Section 5 is grounded on several policy considerations. The undivided loylty due from a state employee while serving is deemed to continue with respect to some matters after he leaves state service, Moreover, s.5 precludes a state employee from making official judgments with an eye, wittingly or unwittingly, consciously or subconsciously, toward his personal future interest. Finally, the law ensures that former employees do not use their past friendships and associations within government or use confidential information obtained while serving the government to derive unfair advantage for themselves or others," In the Matter of Thomas Wharton, 1984 Ethics Commission, 182, 185.
 

End Of Decision