| Date: | 04/30/1979 |
|---|---|
| Organization: | State Ethics Commission |
A former state employee may contract with a federal agency when the state is not a party to the contract and has no "direct and substantial interest" in the subject matter of the proposed contract.
You are a former employee of a state agency (the agency). You and three other former employees of that agency plan to establish a consulting firm designed to advise governmental agencies and private organizations on matters concerning the application of various laws and policies enforced by that agency. You ask what restrictions the state conflict of interest law, General Laws Chapter 268A, places on your firm generally and specifically whether you may enter into a contract with an agency of the federal government (USA) to study compliance by organizations in Massachusetts with a federal law.
As a preliminary matter, under § 3(g) of Chapter 268B, the Commission will render advisory opinions only upon the written request of a person who is or may be subject to the provisions of Chapter 268A or 268B. Therefore, we can respond to your question only as it relates specifically to you. Attorney General Conflict Opinion No.670. In rendering this opinion, the Commission has been guided by, and will continue to follow for the near future, the interpretations of the Attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction over Chapter 268A matters.
As a former state employee, § 5 applies to you. § 5(a) would prohibit you from forever acting as agent or attorney for or 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 you participated. In general, § 5(a) would prohibit you from contracting with the agency you worked for or any other state agency if you had directly and substantially
participated in the decision to issue or award that contract, Attorney General Conflict Opinion Nos. 809 and 846.
In addition, any proceeding, controversy, decision, determination or finding pertaining to any organization or persons regulated by your former agency would also be a "particular matter". You state that, to the best of your knowledge there is no enforcement proceeding or investigation currently pending or likely in the future arising from any regulatory activities of the agency during your tenure and that you will exclude from your consulting activities any organization which was involved in a substantive examination during your tenure. Therefore, since the state will not be a party to the USA contract nor does your former agency have a direct and substantial interest in the study itself (even though it may have a general interest in the results of the proposed study by virtue of its enforcement powers), § 5(a) does not prohibit you from entering into the USA contract and does not prohibit you from providing consulting services or conducting studies concerning the activities of regulated businesses occurring after your departure from state service. Attorney General Conflict Opinion No.846.
Section 5(b) prohibits you from appearing for one year before any court or agency as agent or attorney for anyone other than the Commonwealth or a state agency in connection with particular matter in which the state or a state agency is a party or has a direct and substantial interest and which was under our official responsibility at any time within two years prior to the termination of your employment. "Official responsibility" is defined in § 1(i) as the direct administrative or operating authority to approve, disapprove or otherwise direct agency action irrespective of whether the authority is actually exercised. This section would prohibit you, until 1980, from acting as the agent for your firm in contract negotiations with a state agency if matters pertaining to the issuance of that contract has been within your official responsibility as a state employee in the two years prior to your departure even though you had not participated in those matters. See Attorney General Conflict Opinion No.716. This section would not prohibit your proposed contract with the USA unless that contract requires you to appear before a court or state agency on matters which had been within your official responsibility as a state employee.
Section 5(c) prohibits a partner of a former state employee from engaging for one year following the termination of the latter's employment in any activity which the employee would be prohibited from engaging in under § 5(a).
Therefore, your partners would be prohibited until 1980, from acting as agent or receiving compensation in connection with a contract or a proceeding that you had participated in as a state employee. Should they subsequently obtain such a contract, you could not share as a partner in the proceeds of that contract. Attorney General Opinion Nos.819, 846.
Finally, although the Commission has declined to advise you on the application of Chapter 268A to your proposed partners, you should be aware that § 5(c) may also limit your activities as a result of your partner's participation in particular matters during their tenure as state employee.
End Of Decision
