You are a private economic consultant. Between 1975 and 1977, you performed work related to a type of cost inflation projections. You understand that certain forecasts and the methodology you developed were subsequently used by a state agency (ABC) in connection with the establishment of type A rates and regulations.
You ask whether you may be an expert witness for, and consultant to, a private plaintiff in a court case challenging the Type A payment methods and standards utilized by ABC and another state agency without violating General Laws Chapter 268A.
The commission advises you that, in rendering this opinion, it has relied solely on the facts as you have stated them and has not conducted its own independent investigation of those facts. You state that you were engaged by a private corporation during 1976 to forecast inflation rates for specified types of cost categories for Fiscal Year 1977. You understood that these forecasts were developed for a private company to use in its budgetary process, but you have learned that the ABC may also have used these forecasts in calculating the Fiscal Year 1977 type A rates. You advise us that you, and to the best of your knowledge the corporation, had not been engaged by any state agency to calculate inflation for any type A rate setting or other purpose. Therefore, you were not a "state employee" as defined in § 1(q) during that period because you were not "performing services for...a state agency..." The fact that your work product may have been provided subsequently to a state agency and used without your knowledge does not by itself make you a state employee for purposes of the conflict of interest law. You also state that you contracted with the consulting firm of XYZ, Inc., in 1977 to develop inflation projection formulas required by them to fulfill a contract which they had already made with ABC. You state that your submission was made directly to the firm and that the firm controlled how your work would be incorporated into their final submission to ABC. For the same reasons discussed above, you were not a "state employee" for purposes of Chapter 268A while working in this project, even though your work product may have been subsequently provided to and used by the ABC. Finally, you state that in 1977 you prepared two sets of "estimates" of projected inflation for specified types of cost categories. These estimates were prepared for and at the request of an ABC staff member. Therefore, you were a "special state employee" as defined in § 1(o) even though you were not compensated for your services and spent no more than eight hours on this project. Cf. Ethics Commission Conflict Opinion EC-COI-79-12.
Your status as a state employee terminated when you submitted the estimates to ABC. As a former state employee, you are prohibited by § 5(a) from acting as the agent for, or receiving compensation from, anyone other than the Commonwealth in relation to a particular matter of direct and substantial interest to the state which you had participated in as a state employee. You state that it appears that the ABC incorporated your projections into their 1978 type A rate regulation. This regulation is a "particular matter" as defined in § 1(k). The submission of your projections is also a "particular matter" but it is integrally related to the regulation as a whole. You advise us, however, that you were not advised of the intended use and purpose of your projections and merely transmitted them to the staff member. You also state that you did not participate in ABC's review and adoption of that regulation. Therefore, you did not "participate" personally and substantially in the regulatory process and, as a result, you are not prohibited from performing your proposed activities as a consultant and expert witness as long as you do not attack the projections that you submitted to the ABC.
End Of Decision
