Opinion  EC-COI-79-4

Date:	01/10/1979
Organization:	State Ethics Commission

Where a former state employee did not "participate" in any way in developing the specifications of a contract with a private company, or in the decision to award that contract, there is no violation of §5(a) if the individual now accepts employment with said company.

Facts

You are an employee of a state agency. 

Question

You have requested an opinion whether your proposed employment by a company (company) having a contract with the Department of Public Welfare would violate the Commonwealth's conflict of interest statute, G.L. c. 268A.

Answer

On the facts you have presented, we conclude that no conflict under the statute would arise out of your acceptance of the position.

Discussion

       Until 1977 you were employed by the Department of Public Welfare (Department). Since that time you have been on the staff a separate state agency. As an employee of the Department of Public Welfare, you worked on policy development, resolution of billing issues and the location of unpaid claims, and served as the Department's advisor with respect to various provider groups.  During the time of your employment, your prospective employer (the company) had a contract with the Department. The nature of your position and of the contract meant that you had frequent working contract with the company's representatives while employed by the Department. You are now interested in working for the company which is about to enter into a new contract with the Department to perform work which is currently performed by the Department. Your proposed position in the company would require you to work directly on the implementation of the contract. The one section of G.L. c. 268A which is relevant is § 5(a).^[2] That section prohibits a former state employee^[3] from receiving compensation 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. There is no question that the contract between the company and the department is a "particular matter"^[4]in which the Commonwealth is both a party and has a direct and substantial interest. There is also no question that in your proposed position with the company you would be receiving compensation in connection with that contract, since you would be involved in resolving specific types of problems arising under the contract. The sole issue, then, is whether the particular matter of the contract is one in which you participated as a state employee while employed at the Department of Public Welfare.^[5] "Participate" is defined by G.L. c. 268A, § 2(j), as "to participate in agency action or in a particular matter personally and substantially as a state employee through approval or disapproval of decision, recommendation, the rendering of advice, investigation or otherwise." You have specifically stated that during the time you worked as an employee of the Department, you did not participate in any way in developing any of the specifications of the contract or in the decision to award the contract to the company.

Decision

       We therefore conclude that there would be no violation of G.L. c. 268A in your accepting the described employment with the company.^[6]

^[2]In certain situations individuals associated with a private corporation who perform services to implement contracts between the corporation and a state agency have themselves been deemed "special state employees." See Conf. Op. Atty. Gen. Nos. 852, 851. The information you have provided, however, does not indicate that you are specifically named in the company that you should be classified as a special state employee while performing services for the company that contract. Thus the sections of G.L. c.268A applicable to special state employees do not apply to you. In addition, there is no indication that the company has offered you a position because of actions you took or refrained from taking on its behalf while you have been employed by the Commonwealth. See G.L. c. 268A, § 2, 3.

^[3] Once you leave your state employment you would be deemed a "former state employee".

^[4] The conflict law's definition of "particular matter", set forth in G.L. c. 268A § 1(k), expressly includes contracts.

^[5] We focus on your former position with the Department of Public Welfare since it is clear that the work you have performed as an employee of the other state agency is wholly unrelated to the contract.