April 13, 1988

 

FACTS:

You served as a member and employee of a Board of Registration (Board) which regulates certain companies. The Board is generally responsible for, among other things, licensing companies and investigating complaints against them.

While you were associated with the Board, you owned and operated several of these companies. You now wish to hold an interest in a general partnership (Partnership) which will operate a company regulated by the Board. You want to sell the assets of one of your other companies (Company X) to the Partnership. The Partnership will apply to the Board for approval of a change in ownership of Company X. The Board may conduct a hearing to determine the merits of the Partnership's application. If the application is approved, the licenses held by Company X will be relinquished to the Board which would then issue new licenses to the Partnership.
 


QUESTION:

Does the state conflict of interest law, G.L. c. 268A, s.5 prohibit you or your partners from representing the Partnership on its application with the Board?

 

ANSWER:

No.

 

DISCUSSION:

While you were a Board member and employee, you were considered a state employee within the meaning of the conflict of interest law. G.L. c. 268A, s.1(q. Because you resigned your state position, you are now considered a former state employee and are subject to the provisions of G.L. c. 268A, s.5.
The conflict law prohibits you from acting as the agent for, or receiving compensation from a private entity in connection with a particular matter[1] in which the state is a party or has a direct and substantial interest if you participated[2] in the matter while employed by the state. G.L. c. 268A, s.5(a).[3] Therefore, you may not represent the Partnership on a matter which is of direct and substantial interest to the state (such as an application with the Board for a license) if you participated in this matter while you were employed by the state. Participation requires personal and substantial action on your part. Compare, EC-COI-81-113 (where action taken did not constitute "participation" under the conflict law because it was at a preliminary stage and was limited in scope); In the Matter of John R. Hickey, 1983 SEC 158 (where a ministerial act is not considered personal and substantial participation).
The Partnership's application to the Board is a particular matter. See, G.L. c. 268A, s.1(k); EC-COI-84-31 (a determination of need application filed by a hospital with the Department of Public Health is a particular matter). Because this application has never been previously filed (the Partnership did not even exist during your tenure with the Board), this is not particular matter in which you participated while a state employee. See, EC-COI-84- 14 (where a new property assessment is a different particular matter from a prior assessment). Therefore, we conclude that you may be compensated by or represent the Partnership in connection with its application before the Board.[4]
In light of the fact that there are no restrictions in G.L. c. 268A, s.5(a) which will prohibit you from representing the Partnership, there are similarly no restrictions on your partners. See, G.L. c. 268A, s.5(c).[5]


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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, 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] "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.

[3] G.L. c. 268A s.5(a) states that a former state employee who knowingly acts as agent or attorney for, or receives compensation direclly or indirectly from anyone other than the commonwealth or a state agency, 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 he participated as a state employee while so employed...shall be punished by a fine of not more than three thousand dollars or by impnisonment for not more than two years, or both.

[4] Section 5(b) prohibits a former state employee from personally appearing before any agency of the Commonwealth within one year after leaving state service if (1) the appearance is in connection with any particular matter in which the state or a state agency is a party or has direct and substantial and (2) that matter was under the official responsibility of the employee within two years prior to the termination of such state employment. A personal appearance may include telephone calls and "written communications as well as physically appearing. EC-COI-87-27.

Page 195

A matter wou]d have been under your official responsibility" if you had 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. G.L. c. 288A, s.1(i). These principles should be considered if you intend to communicate with your former board. For purposes of the Partnership's application, however, these restrictions are not relevant because the application was not a matter under your official responsibility while you were employed by the state.

[5] Section 23(b) (2) restricts former state employees from improperly disclosing confidential material gained in their state jobs or using such information to further their personal interests. You should conform your conduct to these principles. In addition, although in this case the conflict law does not restrict your appearance before your former agency, your former colleagues are prohibited from using their positions to obtain an unwarrented privilege for you or the Partnership. G.L. c. 268A, s.23(b) (2).
 

End Of Decision