| Date: | 09/11/1985 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
A former state employee is advised that he will become a state employee in connection with contracts his firm may be awarded by two state agencies, and that he will need to comply §§ 6 and 7 of the conflict of interest law if he were to work on general legislation under one contract and special legislation under the other.
You are a former employee of state agency ABC and currently serve as an officer of a Firm. Your current responsibilities include servicing public sector clients. You are not a partner in the Firm and have no ownership interest in the Firm.
The Firm has several potential opportunities to provide contractual services to commonwealth agencies and authorities; you anticipate that these opportunities will involve your specialized services. The first is a contract with state agency ABC to work on general legislation. ABC would expressly seek your services in research, drafting, financial preparation and in negotiating with the General Court.
The second is a contract with state agency DEF to lobby the General Court for passage of special legislation. Additionally, the Firm may perform services for other state agencies.
1. Does G.L. c. 268A permit you to work under the Firm contract with ABC in relation to the general legislation?
2. Assuming that the general legislation becomes law, would G.L. c. 268A permit you or the Firm to respond to a request for services from an entity created by the proposed legislation?
3. Does G.L c. 268A permit you, as a Firm representative, to lobby the General Court on behalf of SCBA in view of the Firm's relationship with DEF?
4. Does G.L. c. 268A permit you to serve as a member of a Firm team which responds to requests for underwriting or financial advisory services from state agencies?
1. Yes.
2. Yes.
3. No, unless you receive an exemption from your appointing official pursuant to G.L. c. 268A, § 6.
4. Yes, as long as ABC is not a party to the service contracts with the Firm.
1. Initially. you will be treated as a "state employee"[1] for G.L. c. 268A purposes during the period in which you perform work for ABC in relation to the general legislation. The definition of state employee has been applied by both the Commission and Attorney General to cover employees of corporations which contract with the state if the terms of the contract contemplate a specific individual's services. For example, in Commission advisory opinion EC-COI-80-84, the Commission concluded that the partners in a law firm were "state employees" because the contracting state agency specifically contemplated that each of the firm's partners would work on the project for the state. More recently, in EC-COI-83-129, the Commission reached this same conclusion with respect to an individual whose services were specifically contemplated, reviewed and approved by the state. See, also EC-COI-83-165; Attorney General Conflict Opinion No. 854.
Based upon the information you have provided, the Commission similarly concludes that your specialized research, drafting, financial preparation and negotiation services have been sought out by ABC, and that you would therefore be a state employee for the purposes of G.L. c. 268A. In view of the part-time nature of your consultant arrangement for ABC, you would also be a special state employee within the meaning of G.L. c. 268A, § 1(o). As a special state employee, you are subject to fewer restrictions under certain sections of G.L. c. 268A.
Nothing in G.L. c. 268A inherently prohibits you from serving as a consultant to ABC after having previously worked for ABC as a deputy secretary. In effect, you are continuing your status as a state employee for G.L. c. 268A purposes by changing from a full-time to a consultant relationship with ABC. See, EC-COI-83-41. However, as will be seen in the latter part of this opinion, your status as a special state employee will be relevant to your proposed under-writing or financial advisory services for state authorities.
The fact that you are employed by the Firm will not disqualify you from working for ABC in connection with the general legislation. Under G.L. c. 268A, § 6, a state employee may not participate[2] in any particular matter[3] in which a business organization for which she serves as an employee has a financial interest. The Firm is a business organization which may have a financial interest in the enactment of the general legislation because it may respond to increased underwriting and advisory services which would become available should the legislation become law. However, even assuming the Firm has a foreseeable financial interest in the legislation, that interest is not in relation to a "particular matter." The definition of particular matter excludes the enactment of general legislation, and the legislation is general as opposed to special, in nature.
In light of the generality and permanence of the scope and purposes of the acts provisions, the legislation is general and its enactment would not constitute a particular matter. See, Sands, 2 Sutherland Statutory Construction (40.01 et seq. (4th ed., 1973); EC-COI-82-169.
2. Assuming that the general legislation becomes law, nothing in G.L. c. 268A prohibits you from subsequently working for a newly created agency pursuant to a Firm request for underwriting or financial advisory services. As drafted in the legislation, the agency would be a state agency for the purposes of G.L. c. 268A, id., § 4; § 5(k), and you would become a state employee by providing your specialized services to the agency; you would again continue your status as special state employee under G.L. c. 268A, § 1(o).
3. If, through the Firm, you were hired by DEF to perform its lobbying activities in connection with the special legislation, you would be a state employee for G.L. c. 268A purposes. Two potential problems under G.L. c. 268A are raised by your proposed lobbying activities. The first, under G.L. c. 268A, § 7, can be relative easily addressed by your filing a financial disclosure statement pursuant to § 7(d). As a special state employee for DEF, you may have a financial interest in another contract made by a state agency (such as ABC) if you do not participate in or have official responsibility for the activities of the contracting agency. In view of the relative independence of ABC and DEF, you would qualify for an exemption to § 7 by filing the disclosure statement.
A more difficult problem is raised under G.L. c. 268A, § 6. As a state employee, you may not participate in the enactment of special legislation or any other particular matter in which the firm has a financial interest. In view of the Firm's current role with DEF's, the Firm would have a foreseeable financial interest in the enactment of the special legislation. In contrast to the general legislation, this legislation is special legislation and a particular matter within the meaning of 1(k). You should be aware, however, that § 6 contains an exemption which would permit you to participate notwithstanding the Firm 's financial interest.[4] Absent compliance with these exemption requirements by both you and the head of DEF, you must continue refrain from participating in the legislation.
4. As a special state employee, you may have a financial interest in contracts made by state agencies in whose activities you neither participate nor have official responsibility for as a special state employee. See, G.L. c. 268A, § 7(d). In your ABC consultant capacity, you may therefore contract with state agencies which are independent of your work with ABC, provided that you file an appropriate financial disclosure with the Commission. Based upon the information which you have provided, it would appear that you could have a concurrent financial interest in service contracts made by state agencies since you do not participate in or have official responsibility for the activities of those authorities in your lobbying work. This result would apply as long as the scope of your services for ABC remains subject to the limitations you have described. Should your responsibilities change, then the Commission would review the propriety of your financial interests in light of those changes.
