| Date: | 04/12/1979 |
|---|---|
| Organization: | State Ethics Commission |
A state employee whose duties would normally have required him to "participate" in a determination regarding a grant to another state agency with whom he was negotiating for future employment should have filed disclosure statements under §6. He may, however, continue to work for the other state agency since he did not actually participate in the determination to fund the program in which he now works.
You are now employed by a state agency (ABC) and you are responsible for Programs A and B. Until recently, you were employed in another state agency (XYZ). You ask whether your acceptance of the position at the ABC entails any conflict of interest under Massachusetts General Laws chapter 268A.
In rendering this opinion, the Commission has been guided by, and will continue to follow for the near future, the interpretations and opinions of the Attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction over chapter 268A matters.
Section 6(a) provides that no state employee shall participate in a particular matter in which to his knowledge any organization with whom he is negotiating or has any arrangement concerning prospective employment has a financial interest. That section further provides that "any state employee whose duties would otherwise require him to participate in such a particular matter shall advise the official responsible for appointment to his position and the State Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest. . ." The appointing official may then assign the matter to another employee, assume responsibility for the matter, or make a written determination that the interest is not so substantial as to be likely to affect the integrity of the employee's services, in which case the employee may participate in the matter.
We understand that XYZ was engaged in a determination regarding renewal of a Program B grant while you were still an employee in the XYZ but had begun negotiating with both Programs A & B for employment. Indeed, the position for which you were being considered was to be funded in part by way of that renewed contract. A contract is a "particular matter" as defined in § 1(k) and state agencies are "organizations" within the meaning of § 6(a). Cf. Attorney General Conflict Opinion No.761. Therefore, you were required to recuse yourself from that XYZ determination. We shall accept your letter to the Commission dated February 23, 1979, as your disclosure to us of the nature and circumstances surrounding the Program B grant determination and of Program B's financial interest and your relation to it. Section 6(a) mandates such disclosure since your responsibilities at XYZ would normally have required your participation in the grant determination. You must take these same disclosures to the official who has the authority to appoint persons to the position which you held.
You have advised us that you did not participate, and deliberately avoided doing so, in any way in the XYZ determination regarding the Program B contracts. Therefore, even though you failed to make the requisite disclosures in a timely manner, your actual employment by the ABC with responsibility for these programs is not in violation of chapter 268A. We can state no opinion with respect to any other Massachusetts statute.
End Of Decision
