| Date: | 01/30/1979 |
|---|---|
| Organization: | State Ethics Commission |
A former state employee may contract to draft regulations implementing a specific law despite his previous duty to review such regulations, since he receives compensation directly from the Commonwealth [§5(a)] and did not procure this contract while serving as a state employee [§6]
You have requested our opinion as to whether any conflict of interest exists in your employment as a consultant by one state agency (Agency A). Formerly, you served as general counsel to another state agency (Agency B) and you now seek to contract with Agency A in your capacity as a sole legal practitioner. For the reasons outlined below, we conclude that on the limited facts you have described, the provisions of G.L. c. 268A would not proscribe your work on the contract.
You have provided the following facts. As general counsel to Agency B during 1977, you were a state employee as that term is defined in G.L. c. 268A, § 1(q). One of your duties was to review regulations pursuant to a particular statute.
As a private practitioner your proposed contract with Agency A will require you to draft new regulations implementing that law, and your specific question is whether you may in fact enter into and perform such a contract.
Two sections of the conflict statute must be considered, G.L. c. 268A, § 4 and 5. We will discuss § 5 first. That section prohibits a "former state employee" such as yourself from acting as agent or attorney for, or receiving compensation from, anyone other than the Commonwealth or a state agency in connection with "particular matters" on which he worked as a state employee, see § 5(a); and restricts the former employee's appearances before state courts and agencies on behalf of anyone other than the Commonwealth in relation to matters which were under his official responsibility when he was a state employee, see § 5(b).
Neither § 5(a) nor § 5(b) applies in your situation since both subsections solely concern individuals receiving compensation from, or acting on behalf of, "anyone other than the Commonwealth. By contracting directly with Agency A you are, in effect, receiving compensation directly from the Commonwealth. Compare Conf. Op. Atty. Gen. No. 851.[1]
We now turn to G.L. c. 268A, § 4, which would apply if you contract with Agency A since by entering into the proposed contract you would become a "special state employee" for purposes of the conflict statute. See G.L. c. 268A, § 1(o) (2)(a). Section 4 of c. 268A imposes certain restrictions on the activities which a person classified as a special state employee may perform in his private capacity on behalf of parties other than the Commonwealth or a state agency. See § 4(a) and (c); id., €6. However, you have not furnished us with any information about the nature of our current legal practice or related activities, and therefore we cannot advise you on the specific application of G.L. c. 268A, § 4, to your situation. If a particular factual circumstance arises which raises a question under the conflict statute, you may of course seek another opinion from us.
End Of Decision
