Advisory  State Ethics Commission Advisory 15-1: Avoiding Conflicts of Interest While Seeking a New Job and After Leaving Public Employment

Date:	09/16/2015
Organization:	State Ethics Commission
Referenced Sources:	2015 Ethics Commission Rulings

On September 16, 2015, the State Ethics Commission approved Advisory 15-1: Avoiding Conflicts of Interest while Seeking a New Job and After Leaving Public Employment. Advisory 15-1 explains how the conflict of interest law, G.L. c. 268A, applies to public employees when they are seeking a new job, if their public duties affect or involve a potential employer. When a public employee is responsible for matters involving a potential employer, or has dealings in his public position with a potential employer, the conflict of interest law will impose restrictions and disclosure requirements to prevent the public employee from using his position to improve his employment prospects or to favor, or even appear to favor, the potential employer’s interest over the public interest.

Advisory 15-1 provides guidance for public employees during each step of a job search, including:

• Beginning the job search and gathering general information;
• Initiating contact concerning possible job openings;
• Applying for publicly advertised jobs;
• Talking with potential employers; and
• Accepting, not getting, or declining a job offer.

The advisory also explains how the conflict of interest law applies to former public employees even after they leave their public positions.

Introduction

This Advisory^[1] explains how the conflict of interest law, G.L. c. 268A, applies to public employees when they seek new jobs, and after they leave their public jobs. 

A public employee seeking a new job has conflict of interest restrictions on his job search only if his responsibilities in his public position affect or involve the potential employer. A job-seeking public employee who has no responsibility for anything related to the potential employer has no issues under the conflict of interest law in connection with his job search. However, if the public employee is responsible for matters involving the potential employer, or has dealings in his public position with the potential employer, the conflict of interest law will impose restrictions to prevent the public employee from using his position to improve his employment prospects, and also to prevent the public employee from favoring the potential employer’s interest over the public interest, or from even appearing to do so.

Part I of this Advisory explains how the conflict of interest law applies to public employees as they seek new jobs. It begins with a short description of the applicable sections of the law, and then explains how the law applies to the various stages of a job search. Part I is arranged chronologically to address the following topics as they may arise during a job search:

• Beginning a job search and gathering general information (Subpart A)
• Initiating contact with people concerning possible openings (Subpart B)
• Applying for publicly advertised jobs (Subpart C)
• Talking with a potential employer about working for that employer (Subpart D)
• Getting and accepting a job offer (Subpart E)
• Not getting, or declining, a job offer (Subpart F)

Part II of this Advisory explains how the conflict of interest law applies to former public employees after they leave public employment.

I. Seeking New Employment

The conflict of interest law does not prohibit public employees from seeking new jobs in areas in which they gained experience while in their public jobs, or from getting new jobs with persons and entities with whom they had contact in their public jobs. A public employee seeking new employment with persons or entities who have no connection with his official responsibilities is not prohibited by the conflict of interest law from seeking such employment. The law only imposes restrictions on public employees seeking new employment when there is, in fact, the potential for conflicts of interest, because the public employee has official responsibility for matters involving the potential employer, or has official dealings with the potential employer.

First, G.L. c. 268A, § 23(b)(2) prohibits public employees from asking for or accepting anything worth $50 or more, which is given to them because of their official positions, and from using or attempting to use their official positions to secure unwarranted privileges worth $50 or more for themselves or others.^[2] This section of the law prohibits public employees from initiating discussions about future employment, other than general information gathering as described in Subpart A below, with those currently under their official authority, or with whom they have official dealings, because initiating such discussions is a use of one’s position that is inherently coercive. Public employees who wish to initiate discussions about a specific unadvertised job opportunity with such persons or entities should first seek to have their duties involving those persons or entities reassigned, as further discussed below in Subpart B.

Second, G.L. c. 268A, § 23(b)(3) provides that a public employee may not act in a manner which would cause a reasonable person to conclude that any person can improperly enjoy the employee’s favor in the performance of his or her official duties, or that the employee is likely to act or fail to act as a result of anyone’s undue influence. When a public employee has official dealings with a potential employer, the public employee’s impartiality may reasonably be questioned, as it may appear that the public employee would put the potential employer’s interests ahead of the public interest. Such an appearance of a conflict may arise at various points during and after a job search, and may be eliminated by making a written disclosure of the facts, as explained further below in Subpart B. This type of disclosure is often required at the very early stages of a public employee’s job search. It may also be required after employment discussions have terminated if the public employee is going to take official actions regarding the potential employer, as explained below in Subpart F. 

Third, there is a strict rule that prohibits public employees from participating in matters in which a potential future employer has a financial interest. Specifically, public employees may not “participate” in any “particular matter” if “any person or organization” with whom they are “negotiating” or have “any arrangement concerning prospective employment” has a financial interest in the matter. If a state or county employee’s duties would otherwise require him to participate in any such particular matter, he must make a written disclosure, which is a public record, and must be filed with his appointing authority and with the State Ethics Commission (“Commission”). An employee who has made such a disclosure must abstain from participating in the matter unless and until his appointing authority gives him written permission to participate. Disclosures filed with the Commission are listed on the Commission’s website. A municipal employee in that situation can either abstain from participating or file a disclosure and obtain his appointing authority’s written approval if he seeks to participate, because the statutory language applicable to municipal employees is different from that applicable to state and county employees. G.L. c. 268A, §§ 6, 13, and 19. These requirements are explained further below in Subpart D.

While the Commission is sensitive to the potential difficulties public employees may experience in making the required disclosures to their appointing officials regarding their efforts to obtain new employment, these requirements are intended to protect the public interest from being compromised by actual or apparent conflicts of interest between one’s public duties and one’s private efforts to obtain new employment.

The remainder of Part I of this Advisory explains how these principles apply during the various stages of a job search.

A. Beginning A Job Search and Gathering General Information 

Job seekers, including public employees, often begin a job search by gathering information. As part of that process, they may seek to speak with persons with general information about possible opportunities in a particular field, as a preliminary to identifying specific available positions. Job seekers may seek to have such conversations with professional and social acquaintances, and also with persons whom they have never met, or whom they know only through social media. Public employees are not prohibited from contacting persons under their official authority, or with whom they are having official dealings, for the purpose of gathering general information about possible opportunities either in a particular field, or within a particular company. Asking for information about general opportunities from those under one’s official authority or with whom one has official dealings is not prohibited by § 23(b)(2), because such a request is not inherently coercive and does not give the public employee an unwarranted privilege of substantial value.

While a public employee may ask a person under his official authority, or with whom he is having official dealings, for general information about possible opportunities within that person’s company, the public employee may not go further and ask that person to give him a job, or create a job for him. The next section of this Advisory explains how a public employee who wishes to approach a person or entity under his official authority, or with whom he is having official dealings, to discuss a specific unadvertised employment opportunity should proceed.

Example: Permissible requests for general information about possible opportunities at a particular company: “What opportunities are out there in my field?” “How can I go about finding jobs in my field?” “Do you know whether other companies in your field are hiring?”)

Example: Inquiries about specific employment opportunities that cannot be addressed to someone under a public employee’s official authority, or with whom he is having official dealings: “Do you have a job for me?” “Could your company create a position for me?” “Do you have a management job for me?” “Do you have a Vice President of Marketing job for me?” 

A public employee’s request for general information about possible opportunities made to someone under his official authority or with whom he is having official dealings may result in the public employee learning that a specific job which has not been publicly advertised is available with the person he has contacted, or that person’s employer. If the public employee decides to pursue that opportunity, he will need to make a written disclosure pursuant to § 23(b)(3) prior to taking any action in his official capacity that would involve or affect the prospective employer, to dispel the appearance of a conflict of interest. The disclosure should include specific facts as to how the general discussion turned into a discussion of a specific opportunity. In addition, § 23(b)(2) requires that the public employee act objectively and without bias in the matter involving or affecting the prospective employer. Once the prospective employer shows any interest in hiring the public employee, such as by scheduling an interview with the public employee or otherwise expressing interest in discussing his qualifications, a state or county employee will have to abstain from participating in his public capacity in any matter in which his duties would otherwise require him to participate and in which the company has a financial interest, and will have to make a further disclosure of any such matter. Municipal employees may either abstain or file a disclosure and obtain the approval of their appointing authorities, if they seek to participate in the matter. These disclosure and abstention requirements, which are pursuant to G.L. c. 268A, §§ 6, 13, and 19, are triggered when the prospective employer has a matter pending before the public employee, and are explained in more detail below in Subpart D.

A public employee’s request for general information about possible opportunities made to someone under his official authority or with whom he is having official dealings may also result in offers of specific assistance from the  person under his official authority or with whom he is having official dealings, beyond simply discussing general information with the public employee. For example, the person contacted by the public employee may offer to recommend the public employee for a particular position with a different employer or may offer to introduce the public employee to others who may be hiring or who may have information about other job opportunities. If the person whom the public employee called voluntarily offers unprompted assistance, and if the public employee accepts that offer, he should make a written disclosure of those circumstances pursuant to § 23(b)(3) before acting officially in any matter involving that person. This disclosure is needed to eliminate any appearance that his official action might be influenced by that assistance. The public employee, however, may not ask the person under his official authority or with whom he is having official dealings to do anything to assist him in pursuing employment opportunities, because such a request would be inherently coercive, and, therefore, would amount to a prohibited use of one’s official position.

B. Initiating Contact with People Concerning Possible Openings

The conflict of interest law does not generally prohibit public employees from contacting potential employers as part of a job search, but it does restrict public employees from initiating discussions about future employment with persons and entities who are either under their official authority, or with whom they have official dealings. Specifically, § 23(b)(2) of the conflict of interest law, which prohibits the use of one’s official position to ask for or accept anything of substantial value, prohibits public employees from initiating such discussions, because doing so is a use of position that is inherently coercive, and therefore violates § 23(b)(2).

A public employee who wishes to approach a person or entity under his official authority, or with whom he is having official dealings, to discuss a specific unadvertised employment opportunity, should first seek to have his duties involving those persons or entities reassigned, as discussed below. A public employee who wishes to respond to a public advertisement of a job by a person or entity under his authority, or with whom he is having official dealings, may do so, but will need to make a disclosure, as discussed below in subpart C.

A public employee has official authority over: his subordinates and their subordinates^[3]; vendors and consultants to his agency whose contracts he manages, or whose contracts are supervised by his subordinates^[4]; and persons and businesses whose permits or licenses he participates in issuing^[5] or who are subject to his inspection power.^[6] Such a public employee should not initiate discussions about a specific future job with, or submit an unsolicited resume or employment application to, anyone in these categories. He also should not initiate such discussions with, or submit an unsolicited resume or employment application to, anyone with whom he is having official dealings, if that person or entity may be directly and significantly affected by the public employee’s actions in a pending or anticipated matter.^[7] These restrictions apply to a public employee who is having official dealings with employees of another public agency. These restrictions also apply to the use of social media to initiate discussions about a future job: public employees should not send messages regarding prospective employment directly via social media to persons and entities under their official authority or with whom they are having official dealings, nor should they upload unsolicited resumes or applications to social media accounts of such persons or entities, or otherwise target them through social media communications.

Example: A Fire Chief with authority to inspect and approve smoke detector systems before certificates of occupancy can be issued for newly-constructed houses may not seek private work with a contractor engaged in constructing new homes that will be subject to the inspection requirement, because the contractor is under the Fire Chief’s official authority.

Example: A City Councilor may not approach a permit applicant to seek employment while the permit application is pending before the City Council, because he is having official dealings with the permit applicant. Once the permit application is no longer pending and the City Council will not take any action concerning that application, the City Councilor may approach the former applicant to seek employment.

Example: A budget analyst at the state Executive Office for Administration and Finance who is analyzing a state agency’s budget request may not approach the state agency about seeking employment. Once the analyst no longer has anything related to the agency’s budget pending before him, he may approach the agency to seek employment. Even though both of the agencies in this example are state agencies, the budget analyst may not initiate discussions about a specific future job with another state agency while he is having official dealings with that state agency and that agency may be directly and significantly affected by his actions.

Example: An Assistant Attorney General litigating a case for the Commonwealth may not approach a law firm which represents another party in that case to seek employment, because she is having official dealings with that law firm.

Given these restrictions, a public employee who wishes to approach a person or entity under his official authority, or with whom he is having official dealings, about employment with that person or entity, should first ask his public agency whether it is possible to reassign his duties regarding that person or entity. If those duties are reassigned, the public employee may then approach that person or entity to discuss future employment. The reassignment of such duties should be documented in writing. The public employee should inform the prospective employer that his responsibilities have been reassigned when approaching that person or entity to eliminate any inherent pressure that such a contact might otherwise create.

Example: A state employee who is the contract manager for a contract between his agency and a consulting company may not approach any employee or official of the consulting company about possible employment with that company. The state employee may ask his public agency to reassign his public duties regarding the company. If those duties are reassigned, he then may approach the company to discuss private employment, after informing the company that he no longer has official authority over that company.

If it is not possible for a public employee to have her duties related to a potential employer reassigned, then the public employee may not approach that potential employer to seek employment, unless the potential employer has publicly advertised a position, as discussed in the next section. 

C. Applying for Publicly Advertised Jobs

If an employer has advertised or posted a potential employment opportunity or has inquired whether a public employee has an interest in working for the employer, the conflict of interest law will not bar the public employee from pursuing that opportunity.

If the public employee has official authority over the potential employer, or may have official dealings with the potential employer, the public employee may still respond to the employer’s advertisement, posting, inquiry, or social media recruitment effort. In this situation, the employer, not the public employee, has initiated the contact, so the public employee is not using his official position to create the employment opportunity. Responding to an employer’s advertisement, posting or inquiry is not inherently coercive. Prior to taking any official action as a public employee that would involve or affect the prospective employer, however, the public employee will need to make a written disclosure of the circumstances, and then must act fairly and objectively.

A public employee who has sent a resume to a potential employer in response to the employer’s job posting or inquiry and is waiting to see if the employer is interested in meeting or talking with him about that posting or inquiry will need to file a disclosure pursuant to § 23(b)(3) prior to acting officially in a matter involving that potential employer, to dispel any appearance that he will tend to favor the potential employer in his official dealings with that employer.^[8] Such a disclosure does not require any action on the part of the employee’s appointing authority, but an appointing authority who receives such a disclosure may choose to reassign the public employee’s duties involving the potential employer to another employee.

Example: A public employee’s job involves inspecting certain types of businesses. She may not approach employees of those businesses to discuss a specific job opening with those businesses. However, if one of those businesses advertises a job opening, the public employee may respond to that advertisement. She must file a § 23(b)(3) disclosure before taking any official action involving or affecting that business (and may need to take further steps if the potential employer agrees to talk to her, as discussed below in Subpart D).

Example: A public employee who supervises a vendor’s contract is asked by her counterpart at the vendor whether she is interested in talking about possible employment with the vendor. No specific position is discussed. The public employee may email her resume to her counterpart, but must file a § 23(b)(3) disclosure before taking any official action concerning the vendor or the contract (and may need to take further steps if the potential employer agrees to talk to her, as discussed below in Subpart D). If the public employee does nothing in response to the inquiry from the vendor’s employee, no disclosure is required.

Example: A state employee advises the head of her agency on policy decisions. She submits her resume to an advocacy group that has taken a position on a policy matter that will come before her agency. Because it could appear that she will be biased in favor of the advocacy group’s position, an appearance of a conflict of interest will arise when she makes a recommendation about that policy matter. Before making such a recommendation, which she should do only if she is able to be objective about the matter, she should make a § 23(b)(3) disclosure to the agency head to eliminate that appearance of a conflict. The agency head may take no action, or may ask a different employee to make a recommendation concerning the policy matter. (The public employee may need to take further steps if the potential employer agrees to talk to her, as discussed below in Subpart D.)

A public employee who has official responsibility over, or official dealings with, a potential employer, and who has applied for an advertised position with that potential employer and has disclosed the relevant facts as just described, must then take care to act objectively and without bias in all matters involving or affecting the prospective employer, as required by § 23(b)(2). If the company responds to the public employee’s application and schedules an interview with the public employee, or otherwise expresses interest in discussing his qualifications, a state or county employee must abstain from participating in his public capacity in any matter in which the company has a financial interest, and the state or county employee must file a written disclosure with his appointing authority and with the State Ethics Commission if he would ordinarily be required to participate in the matter. Municipal employees may either abstain or make a disclosure if they seek to participate in the matter. The requirements that apply when a potential employer has a financial interest in a matter before a public employee, which are imposed by G.L. c. 268A, §§ 6, 13, and 19, are discussed in more detail below in Subpart D.

D. Talking With a Potential Employer About Working for That Employer

A public employee’s job search often will proceed to the point where the public employee is interested in a potential employer, and the potential employer is also interested in the public employee. If the public employee’s position does not give her any authority over the potential employer, and the public employee never has dealings with the potential employer in the public employee’s official role, then the public employee is not barred from pursuing that employment opportunity, and is not required to file any disclosures. However, if the public employee may be called on to handle matters involving that potential employer in his or her current public position, then the public employee should read this section of this Advisory, which explains how the conflict of interest law applies at this stage of a job search.

A public employee may not participate in his official capacity in any “particular matter” in which “any person or organization” with whom he is “negotiating” or has “any arrangement concerning prospective employment” has a financial interest. G.L. c. 268A, §§ 6, 13, and 19. These terms are explained below. A public employee may also be required to disclose the matter in writing. State and county employees whose duties would otherwise require them to participate in such a matter must abstain from participation, and must also notify in writing both the Commission and their appointing official (if they have one) of the nature and circumstances of the particular matter, and make full disclosure of the financial interest affected.^[9] Legislators, board members, and others whose duties generally do not require them to participate in, or delegate the duty to participate in, a particular matter, may simply abstain. Municipal employees must abstain from participating in the matter or must make a written disclosure to their appointing official and obtain permission in writing to participate before doing so.^[10] For purposes of making these disclosures, the appointing official is the official (or board or other group of officials) with the authority to appoint the employee, and is not necessarily the employee’s immediate supervisor. In many public agencies, the appointing official to whom such disclosures should be made will be the head of the agency, or his or her designee for such purpose, rather than the employee’s manager.

Elected public employees do not have an appointing official, and, therefore, they may not participate in particular matters affecting the financial interests of persons or organizations with which they are negotiating for prospective employment.

Once a disclosure that a public employee’s potential employer has a financial interest in a pending matter has been made to an appointing official, the responsibility shifts to that appointing official to determine how to handle the matter. If the appointing official makes a written determination that the financial interest is not so substantial as to be likely to affect the integrity of the services that the public expects from the employee, then the appointing official may give the public employee written permission to participate in the matter. State and county appointing officials must file such determinations with the Commission and give a copy to the employee; municipal appointing officials must retain such determinations. Disclosures and determinations are public records and must be maintained as such.

A public employee who receives his appointing authority’s written permission to participate in a particular matter, notwithstanding his potential employer’s financial interest in the matter, may participate in the matter, provided that he can be fair and impartial in doing so.  Section 23(b)(2) requires that public employees use objective criteria in carrying out their official duties, and ignore any considerations arising from their private relationships. EC-COI-96-1; 95-11;92-36;92-1; 86-3.

Example: A Fire Department employee with expertise in sprinkler systems has applied to work for a company that installs sprinkler systems. The company has told him that they would like to discuss his qualifications further. The Town Administrator asks the employee’s advice about what requirements to include in a Request for Proposals (RFP) to replace the Town Hall sprinkler system. It is likely that the prospective employer will respond to the RFP. The Fire Department employee may not participate in advising the Town Administrator until he has disclosed in writing his potential employer’s financial interest in the matter to the Fire Chief, his appointing official, and only if he has received written permission to participate in that matter.

What kinds of potential employers are covered by this prohibition? 

The term “person” includes individuals, corporations, societies, associations, and partnerships.^[11] The term “organization” includes corporations, business trusts, estates, partnerships, associations, two or more persons having a joint or common interest, and any other legal or commercial entity, as well as federal, state, and local governmental agencies and subdivisions.^[12] The Internal Revenue Service, the federal Environmental Protection Agency, and the U.S. Department of Justice would each be considered an organization for purposes of this prohibition.^[13] A public employee who is negotiating or has any arrangement concerning future employment with another public agency is subject to this prohibition. In short, this is a broad prohibition that covers every kind of potential employer.

When does this prohibition begin to apply? 

The prohibition does not begin to apply until the parties are “negotiating” or have “any arrangement” concerning future employment. For purposes of the conflict of interest law, these terms have a broader definition than they do in ordinary usage. Under the conflict of interest law, “negotiating” employment does not require both parties to be sitting down at a table to discuss an offer of employment, or terms and conditions of employment. Rather, for conflict of interest purposes, “negotiating” employment begins earlier, when there is mutual interest in the possibility of the public employee’s going to work for the potential employer. That is, when both sides have expressed an interest in the other, for example, by arranging for discussions or scheduling an interview (in person or otherwise), the public employee will be deemed to be “negotiating” prospective employment.^[14]  As soon as both sides have indicated to the other that they are interested in a possible employment relationship, even before a meeting takes place or a job offer is made, the public employee is “negotiating” for prospective employment for purposes of the conflict of interest law. Examples of such situations, drawn from Commission precedent, are given below. At this point, the public employee must abstain from participating in particular matters in which that potential employer has a financial interest and must file the required disclosure if the public employee’s duties would otherwise require her to participate in those matters.

A public employee is not “negotiating” prospective employment merely because the public employee has posted a resume or similar summary of professional experience to the employee’s personal social media account, or because the public employee is gathering general information about possible opportunities. Likewise, the fact that a person or organization has viewed a public employee’s resume on that employee’s social media account, or has sent an unsolicited message, including one containing a job offer, to the employee, does not mean that they are “negotiating,” because there is not yet mutual interest in the possibility of the public employee’s going to work for that person or entity. However, if the employee responds to such a message with anything other than a rejection, the employee and the person or entity will be considered to be “negotiating” employment, and the restrictions explained in this subpart will apply.

Example: A public employee who applied online and interviewed for a posted position was required to abstain from participating in particular matters in which the potential employer had a financial interest, although he was not hired until three months later.^[15]

Example: A public employee who emailed his resume to a potential employer, indicating that he was “looking for a job,” and had a discussion with an employee of the potential employer about the title, work assignments, and compensation he would receive if he were hired, was required to abstain from participating in particular matters in which the potential employer had a financial interest, although he had not yet been invited for or completed an interview, and no offer had yet been made to him.^[16]

Example: A public employee who discussed the possibility of her being employed by a company and discussed the type of work she would do if hired was required to abstain from particular matters in which the company had a financial interest.^[17]

Example: A public employee who had made an oral agreement to perform work for a company was required to abstain from particular matters in which the company had a financial interest.^[18]

Example: A public employee who responded affirmatively to a potential employer’s inquiry regarding whether he might be available for a position and arranged to meet with its representatives would be required to abstain from particular matters in which the potential employer had a financial interest.^[19]

Discussing general opportunities does not trigger the prohibition, but discussing a particular opportunity with a potential employer will if there is mutual interest. Persons seeking a new job often gather information about possible opportunities by meeting with professional or social acquaintances to discuss general opportunities in a professional field, or contacting persons who may have such information via social media and other means. As explained above in Subpart A, discussions about general opportunities as part of such an information-gathering process are not prohibited. However, if, in the context of a general discussion, a potential employer inquires about a public employee’s interest in a position with that potential employer, the public employee expresses interest, and they arrange for further discussions, even if no specific position is yet under discussion, then the public employee has started negotiating for future employment with the prospective employer, and must abstain from participating in matters in which that potential employer has a financial interest. 

What are “particular matters”?

The conflict of interest law prohibits public employees from participating in “particular matters” in which a potential employer has a financial interest. “Particular matter” is a term that is broadly defined by the conflict of interest law to include judicial or other proceedings, applications, submissions, requests for rulings or other determinations, contracts, claims, controversies, charges, accusations, arrests, decisions, determinations, and findings.

However, enactment of general legislation by the General Court and home rule petitions are expressly excluded from the definition of a “particular matter.”^[20] Therefore, a public employee is not prohibited by §§ 6, 13, or 19 from participating in the enactment of general legislation, or in a home rule petition, in which a potential employer has a financial interest. Nevertheless, the public employee may have to file a disclosure pursuant to § 23(b)(3) to dispel the appearance of a conflict of interest. Enactment of general legislation or a home rule petition may include drafting or reviewing proposed legislation.

Example: A state agency employee has reviewed draft legislation to address an issue. A nonprofit group that is advocating on the same issue has posted a job opening online. If the state agency employee applies for the job and the nonprofit group invites her for an interview, the state agency employee is not prohibited from continuing to work on the draft legislation, because it is not a “particular matter.” However, she should make a written disclosure of the circumstances to her appointing authority pursuant to § 23(b)(3), as explained further above.

E. Getting and Accepting a Job Offer

When a public employee has successfully applied for and been offered a new job, has accepted the offer, and is finishing up his last few weeks in his public position, he is, at this point, considered to have an “arrangement concerning prospective employment” with the new employer. The public employee, therefore, is subject to the prohibition against participating in his official capacity in any “particular matter” in which the new employer has a financial interest. The requirements of disclosure and abstention described above in Subpart D apply to such a public employee while he remains in his public position.

F. Not Getting, or Declining, a Job Offer

Not every job search ends with an offer and acceptance of a position. A public employee may express interest in and/or apply for a new position and not be offered that position, or may receive an offer but decide not to accept it. An appearance of a conflict may arise in these circumstances if a matter involving that potential employer then comes before the public employee for official action, since, depending on the circumstances, the public employee’s impartiality may be open to question. Whether the public employee should make a disclosure in that context pursuant to § 23(b)(3) to dispel the appearance of a conflict will depend on the circumstances in which the discussions or negotiations were terminated and how long ago they occurred. If job discussions with a prospective employer terminated shortly before a public employee is assigned a matter involving the prospective employer, or the circumstances otherwise suggest that the public employee will not be able to be objective, then the public employee should disclose that fact to his appointing official. Alternatively, the public employee may simply abstain from taking any action affecting or involving the person or entity with whom discussions or negotiations have ended, thereby avoiding any appearance of a conflict. If the discussions or negotiations were removed enough in time such that no reasonable person would think that the public employee would favor (or disfavor) such person or entity for that reason, then no disclosure is required before taking any action. If a public employee does not believe he can be objective in these circumstances, then he should abstain from acting in matters involving that person or entity.

II. Restrictions After Leaving Public Employment

Public employees seeking new employment should understand that the conflict of interest law will place some restrictions on what they can do in a new job. The law does not prohibit public employees from using experience that they gained while in a public job for a new employer, or from getting new jobs working with or for persons and entities with whom they had contact in their public jobs (subject to the restrictions explained above in Part I). However, the law does restrict former public employees from working for new employers on “particular matters” that they worked on, or had responsibility for, in their public jobs.^[21] Additional restrictions apply to: the use of confidential information; partners of former public employees; lobbying by former state employees; and, for certain former public employees, working for or owning part of a gaming licensee.

“Forever ban” 

The broadest restriction on former public employees applies to particular matters in which the public employee participated personally and substantially in his public position. A public employee has a lifetime ban (the so-called “forever ban”) on being compensated by, or acting on behalf of, a new employer, in connection with any particular matter in which he participated personally and substantially in his former public job. He can never become involved in that same matter after leaving public service for anyone other than his former public employer.^[22] A public employee need not have been the ultimate decision-maker in a matter for the forever ban to apply. He will be subject to the forever ban if he participated in discussions about the decision or gave advice or made a recommendation about that decision, and he will not be able to work on that same matter for a new employer.^[23] However, participation that is merely ministerial and not part of the decision-making process, such as, for example, mailing a letter, will not be considered personal and substantial, and the forever ban will not apply.^[24]

Example: A former public employee worked on contracts for certain types of services between her public agency and various vendors. She did not seek employment with any vendor while in her public position. After she leaves her public job, the former public employee can go to work for one of those vendors, and she can work on contracts involving the same types of services that she worked on before, but she cannot work on any specific contract that she participated in as a public employee. After the term of any such contract expires, she can work on a newly procured contract between the vendor and her former agency, even if it is similar in subject matter or terms to the expired contract.

Example: A former public employee who made recommendations about regulations or bylaws to her public agency is prohibited from working for a private organization to challenge the validity of those regulations or bylaws.

A former municipal or county employee who goes back to work for the same city or county will not be subject to the “forever ban,” because she will not be working on matters she worked on earlier for someone other than her former public employer, which is what the “forever ban” prohibits. The same principle permits a former state employee to go on working on a state project that he worked on in an earlier state job for a different state agency. However, a former public employee may not continue to work on a project that he worked on for one level of government when he takes a new job with a different level of government (such as a former municipal employee who wants to work on the same project that he worked on for the city in his new state job), because, in that situation, the employee is not continuing to work for his same former public employer.

Example: A public employee retires. His former public employer (the state, the county, or the municipality, depending on whether he was a state, county, or municipal employee) wants to contract with him to work as a consultant to finish work on several matters. (If the contract is not with him but with his new employer, he should be named as a “key employee” under the contract to avoid conflict of interest issues.) This is not prohibited by the conflict of interest law, because he is continuing to work for his former public employer, and, thus, there is no conflict of interest. The forever ban prohibits working for someone other than the former public employer on matters in which the public employee participated.

Example: The head of operations for a school department works on a project to build a new high school. Subsequently, he retires from the school department, and is elected to the School Committee. He is not prohibited from working on the same project as a member of the School Committee, because he is continuing to work for the same former public employer (the municipality).

“One-year cooling off period”  

A public employee may have official responsibility over particular matters in which she does not participate. A manager has official responsibility over all the particular matters worked on by her subordinates. A public employee who abstains from participating in a matter, or delegates it to someone else, or simply does not get around to working on it, still has official responsibility for that matter.^[25] A former public employee who had official responsibility over a particular matter during the two years before she left public service may not communicate in person or in any other way with her former public employer about that matter on behalf of someone else for one year after her departure from public service.^[26] This restriction is referred to as the “one-year cooling off period.” The one-year restriction applies to communications by a former public employee with her former public employer -- that is, the entire state, county, or municipal government, not just the particular agency in which she served -- on behalf of a new employer (or anyone else) about matters over which the employee had official responsibility during the two years prior to leaving her public job.

The one-year cooling off period means that, for one year after he leaves his state position, a former state employee cannot talk to, meet with, or otherwise communicate on behalf of someone else with, any state employees about any particular matters that were under his responsibility at his former state job during the two years before he left. The same restriction applies to former county employees with respect to communications with employees of the formerly employing county, and former municipal employees with respect to communications with employees of the formerly employing city or town. The broader a former public employee’s official responsibility was in his prior job, the more matters will be subject to the one-year cooling off period.^[27]

During the one-year cooling off period, a former public employee is not prohibited from engaging in discussions with his new colleagues about matters over which he had official responsibility in his public position, as long as he does not disclose any confidential information in doing so, and is also not prohibited from receiving compensation from a new employer to work on such matters, so long as he does not communicate, in person or in writing, with any agency of the state (if he worked for a state agency), the county (if he worked for a county), or the city or town (if he worked for a municipality). The former public employee remains subject to the “forever ban” discussed above for matters in which he participated personally and substantially.

Example: The former chief of staff in a municipal office was responsible for personnel and procurement matters and, in addition, other matters assigned to him by the head of the agency. After he leaves his position, he may not communicate on behalf of a new employer, or anyone else, with the city or any city employee about any matters for which he had official responsibility or which were assigned to him during his last two years in his position, for one year.

Example: A former state employee worked for an agency that awards grants to nonprofit corporations and other entities and was in charge of the division that made decisions about grant applications. In that role, he had official responsibility for all grant decisions, though he did not participate in all of them. The former state employee now wishes to work as a consultant to nonprofit corporations, including those that applied for grants from his former agency. He cannot contact his former agency, or any other state office or employee, on behalf of any nonprofits concerning any grant awarded by his former agency during the last two years that he worked there, for one year after his departure. However, as to new grant applications announced by the agency after his departure, which were never under his official responsibility, he can contact the agency on behalf of a nonprofit, even if a year has not yet elapsed since his departure.

Confidential information

Former public employees may not accept employment or engage in professional activity that will require them to disclose confidential information that they learned in their public jobs. They are also prohibited from improperly disclosing or using such non-public information.^[28]  Information is confidential if it is unavailable to the general public, and would not be produced by the public agency in response to a public records request.^[29]

Examples of information that former public employees have been required to maintain as confidential after leaving a public position include internal agency evaluation standards,^[30] information regarding a public employer’s bargaining strategy in collective bargaining negotiations,^[31] information gained as legal counsel to a public agency,^[32] and data developed during a public board’s executive sessions.^[33]

A former public employee who neither participated in nor had official responsibility for a particular matter may still be prohibited from doing work on that matter for a new employer if the work would require him to disclose confidential information that he gained in his prior position. For example, an attorney who learned of his public client’s litigation strategy might be unable to represent a private client in a new matter, if the private representation would require him to disclose his knowledge of the public agency’s litigation strategy.^[34]

Partners of former public employees

A former public employee’s partners have a one-year restriction on doing anything that the former public employee cannot do pursuant to the “forever ban.” This means that the partners of a former public employee may not, for one year after the public employee’s departure from her public position, work for anyone other than the former public employer (that is, the state, the county, or the municipality that employed the former public employee) on any particular matter in which the former public employee participated personally and substantially in her former public job.^[35]

The restrictions on partners of former public employees apply to members of formal partnership agreements, and also to individuals who enter into common business ventures, even if they have not entered into a formal partnership agreement. The restrictions on partners also apply to individuals who create a public appearance of a partnership, for example by linking their names on a letterhead, business cards, and business listings. The substance of the relationship is what counts, not the term that the parties use to describe their relationship.^[36]

The restrictions that the conflict of interest law imposes on partners of former public employees do not apply to members of professional corporations.^[37] Attorneys who are “of counsel” at law firms are not considered to be partners of other members of the firm.^[38] For that reason, an attorney employed by a public agency who wishes to change jobs and work for a law firm organized as a partnership and that has a law practice involving public agencies may wish to consider becoming “of counsel” to the firm for his first year, rather than partner, so that the firm’s partners are not subject to the partner restrictions under the conflict of interest law.

Lobbying restrictions on former state employees

Former state employees are prohibited from lobbying their former offices for one year after departing from state service on behalf of anyone other than the state.^[40] A former state employee’s former office is: the agency he worked for; any other governmental body within that agency; and the employees of that agency or those agencies.^[39][41]

Example: A former state legislator or legislative employee may not lobby the General Court of the Commonwealth of Massachusetts (both branches) and its members and employees for one year after leaving state service on behalf of anyone other than the state.

Example: A former Governor or employee of the Governor's office may not lobby the Governor's office and its employees and the Governor for one year after leaving state service on behalf of anyone other than the state, but is not restricted from lobbying other Executive Offices or agencies.

Example: A former employee of an Executive Office may not lobby the Executive Office by which he was employed, all divisions and departments of that Executive Office, all state agencies within that Executive Office, and the employees of that office and those divisions, departments, and agencies on behalf of anyone other than the state for one year after leaving state service, but is not restricted from lobbying the Governor, the Governor's office, other Executive Offices or their agencies.

Example: A former employee of a state agency may not lobby that state agency, any governmental bodies located organizationally within that agency, and the employees of that agency on behalf of anyone other than the state for one year after leaving state service, but is not restricted from lobbying the Governor or the Governor's office, other state agencies within the same Executive Office as the former employing agency, or other executive branch agencies.

Example: A former employee of an independent state authority that is placed within an executive office, but not subject to supervision or control by that executive office, may not lobby the independent state agency for one year after leaving state service on behalf of anyone other than the state, but is not restricted from lobbying the executive office.

Prohibited lobbying of an executive branch agency includes compensated acts involving communications to promote, oppose or influence an agency decision about legislation, standards, rates, rules, and regulations, and policy and procurement decisions.^[42] Prohibited lobbying of the Legislature includes acts to promote, oppose or influence legislation.^[43] Both types of prohibited lobbying also include acts to influence municipal decisions, when those acts are intended to carry out a common purpose with executive lobbying at the state level, i.e., when the local lobbying is coordinated with the executive lobbying at the state level. 

Example: A former employee of an Executive Office leaves and joins a company that provides services. For one year after his departure from state service, he may not contact his former office seeking to market his firm’s services, because that would be an attempt to influence a procurement decision by his former office, and is prohibited executive lobbying.

Example: A former state legislator leaves his position and joins a nonprofit corporation with an interest in certain types of legislation. The former legislator cannot lobby his former colleagues in either chamber, or any employee of either for one year after his departure from state service.

Participation in enactment or implementation of gaming legislation. 

Former state, county and municipal employees who participated in the enactment or implementation of general legislation on expanded gaming, Chapter 194 of the Acts of 2011 and G.L. c. 23K, cannot become officers or employees of, or acquire a financial interest in, an applicant for a gaming license, for one year after leaving public employment. They also cannot acquire a gaming license for one year after leaving public employment. Former employees of the Massachusetts Gaming Commission are also subject to additional restrictions. G.L. c. 23K, § 3(q) and (r). 

Example: A former legislative aide who worked on the legislation to expand gaming in the Commonwealth cannot work for a casino for one year after leaving his state position.

Example: A municipal Planning Board member who voted on whether to approve a site plan for a proposed casino cannot work for a casino for one year after leaving the Planning Board.

Disclaimer

This Advisory is intended to summarize the State Ethics Commission’s advice concerning compliance with the conflict of interest law and is informational in nature. It is not a substitute for advice specific to a particular situation, nor does it mention every aspect of the law that may apply in a particular situation. Public employees can obtain free, confidential advice about the conflict of interest law from the Commission’s Legal Division by submitting an online request on our website, by calling the Commission at [phone] and asking to speak to the Attorney of the Day, or by submitting a written request for advice to the Commission at One Ashburton Place, Room 619, Boston, MA 02108, Attn: Legal Division.

Approved September 16, 2015

[1] This Advisory updates and replaces Advisory 90-01, Negotiating for Prospective Employment.

[2] G.L. c. 268A, §§ 23(b)(2)(i) and (ii); 930 CMR 5.05.

[3] EC-COI-95-9, 92-7, 84-61; In Re Piatelli, 2010 SEC 2296, 2301-2; In Re Wormser, 2010 SEC 2304, 2309-2311; In Re Foresteire, 2009 SEC 2220; In Re Galewski, 2007 SEC 2101; In Re Corson, 1998 SEC 912, 913; In Re Garvey, 1990 SEC 478; In Re Lannon, 1984 SEC 208.

[4] EC-COI-95-9, 92-7, 90-9, 82-124; In Re Rowan, 2010 SEC 2293; In Re Keverian, 1990 SEC 460, 462; In Re White, 1982 SEC 80 (involved predecessor sections to § 23(b)(2) and 23(b)(3)).

[5] In Re Hamilton, 2006 SEC 2043; In Re Parisella, 1995 SEC 745; In Re Zeppieri, 1990 SEC 448.

[6] In Re Singleton, 1990 SEC 476, 477; In Re Bagni, 1981 SEC 30 (predecessor sections to §§ 23(b)(2) and 23(b)(3)).

[7] EC-COI-12-1, 93-23, 84-61; In Re Tocco, 2011 SEC 2377; In Re Bretschneider, 2007 SEC 2082; In Re Travis, 2001 SEC 1014; In Re Corson, 1998 SEC 912; In Re Trodella, 1990 SEC 472; In Re Antonelli, 1982 SEC 101, 110; In Re Craven, 1980 SEC 17, aff’d 390 Mass. 191, 202 (1983).

[8] Appointed public employees file such disclosures with their appointing officials; members of the General Court file such disclosures with the House or Senate clerk or the Commission; elected state or county employees file them with the Commission; elected municipal employees file them with the municipal clerk; elected regional school committee members file them with the clerk or secretary of the committee.

[9] G.L. c. 268A, §§ 6, 13.

[10] G.L. c. 268A, § 19.

[11] G.L. c. 4, § 7.

[12] EC-COI-92-3.

[13] Each separate federal agency is considered a separate organization for purposes of this prohibition. EC-COI-92-3.

[14] In Re Poley, 2013 SEC 2462; In Re Esposito, 1991 SEC 529, 530.

[15] In Re Dickinson, 2013 SEC 2489.

[16] In Re Poley, 2013 SEC 2462.

[17] In Re Esposito, 1991 SEC 529, 530.

[18] In Re Hatch, 1986 SEC 260.

[19] EC-COI-82-8.

[20] G.L. c. 268A, § 1(k).

[21] “Particular matter,” as explained earlier, includes judicial or other proceedings, applications, submissions, requests for rulings or other determinations, contracts, claims, controversies, charges, accusations, arrests, decisions, determinations, and findings, but not general legislation or home rule petitions.  G.L. c. 268A, § 1(k).

[22] G.L. c. 268A, §§ 5(a), 12(a), and 18(a) provide that former state, county, and municipal employees, respectively, may not act as agents or attorneys for, or directly or indirectly receive compensation from, anyone other than their former public employer, in connection with any particular matter in which they participated as public employees, and which is of concern to their former public employer. For former state employees, this applies to particular matters in which the Commonwealth or any state agency is a party or has a direct and substantial interest; for former county employees, this applies to particular matters in which the county or any county agency is a party or has a direct and substantial interest; for former municipal employees, this applies to particular matters in which the city or town is a party or has a direct and substantial interest.

[23] G.L. c. 268A, § 1(j), “participate” means to participate “personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.”

[24] EC-COI-89-7.

[25] Official responsibility is defined by the statute as “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. 268A, § 1(i). Official responsibility exists where there is authority to act, whether or not it is exercised. EC-COI-99-2, 92-36. Authority to act may be determined from areas assigned by statute, regulation, job description, or delegation of authority, EC-COI-99-7, 99-6, including assignment by one’s superior, EC-COI-88-11.

[26] Specifically, former state employees may not, for one year, appear personally before any state agency as an agent, or attorney, for anyone other than the state, in connection with any particular matter in which the Commonwealth, or any state agency, is a party, or has a direct and substantial interest, and which was under the former state employee’s official responsibility within two years prior to his departure from state service. G.L. c. 268A, § 5(b). The same restrictions apply respectively to county and municipal employees with respect to appearances before county or municipal agencies, in particular matters in which the county, or the city or town, is a party, or has a direct and substantial interest, G.L. c. 268A, §§ 12(b) and 18(b).

[27] EC-COI-90-11.

[28] G.L. c. 268A, § 23(c) provides that current and former employees may not accept employment or engage in any business or professional activity which will require them to disclose confidential information gained by reason of their official position or authority. It further provides that former public employees may not improperly disclose materials or data required to be kept confidential by the Public Records law and acquired in the course of official duties, nor may they use such information to further their personal interests.

[29] EC-COI-97-1, 92-18, 91-14, 89-7.

[30] EC-COI-90-06.

[31] EC-COI-92-21, 87-21.

[32] EC-COI-91-1, 87-26.

[33] EC-COI-92-40.

[34] EC-COI-90-11.

[35] Specifically, G.L. c. 268A, §§ 5(c), 12(c), and 18(c) provide that partners of former state, county, and municipal employees respectively may not knowingly engage, during a period of one year following the termination of the former employee’s public employment, in any activity which the former employee himself is prohibited from engaging in by §§ 5(a), 12(a), and 18(a).

[36] EC-COI-84-78.

[37] EC-COI-93-24.

[38] EC-COI-89-31, 89-7, 84-78.

[39] The Secretary of the Commonwealth is responsible for the general regulation of lobbying and the requirements applicable to executive and legislative agents.

[40] Former state employees or elected officials, including former members of the General Court, may not act as legislative or executive agent, as defined by G.L. c. 3, § 39, for anyone other than the Commonwealth or a state agency, before the governmental body with which they were associated, within one year after leaving their former positions. The statute uses the terms “act as legislative or executive agent” rather than the term “lobbying.”

[41] 930 CMR 7.00.

[42] G.L. c. 3, § 39, definitions of “executive agent” and “executive lobbying.”

[43] G.L. c. 3, § 39, definitions of “legislative agent” and “legislative lobbying.”