Opinion  EC-COI-81-101

Date:	07/07/1981
Organization:	State Ethics Commission

A former state agency chair may be paid by the Commonwealth to serve as a hearing officer in an ongoing adjudicatory proceeding in which he participated while in state service, because G.L. c. 268A, § 5 prohibits compensation only from private parties in such matters. Upon serving as a consultant, the former official becomes a “special state employee” and must comply with the conflict of interest law restrictions that apply to current state employees.

Facts

Dear 

You served as Chairman of state agency ABC until (date omitted). During your tenure as Chairman you sat as the hearing officer in an adjudicatory proceeding before the Board. The matter remains pending before the Board and has been continued for further hearings during the summer of 1981. The Board has requested you to serve on a consultant basis as the hearing officer in this matter. You wish to know whether G.L. c. 268A permits you to accept compensation for your services as a hearing officer. The Commission concludes that it does.

In rendering this opinion, the Commission has relied upon the facts as you have presented them and has not made any independent investigation of those facts.

Discussion

Following your departure from ABC in (date omitted), you became a former state employee within the meaning of G.L. c. 268A, § 5. As a former state employee, you are prohibited from receiving compensation from parties other than the commonwealth in connection with particular matters in which the commonwealth or a state agency is a Party or has a direct and substantial interest and in which you participated while employed as a state employee. G.L. c. 268A, § 5(a). Inasmuch as you will be providing services for and receiving compensation from the commonwealth, rather than a private party, the restrictions of § 5(a) will not apply to you in connection with the adjudicatory proceedings for which you will serve as hearing officer. However, the prohibitions of § 5(a) will continue to restrict your receipt of compensation from private parties in connection with other particular matters in which you participated during your Board tenure.

As a former state employee you are also subject to the provisions of § 5(b) which prohibit you, for a one-year period after your termination of services as a state employee, from personally appearing before your former agency on behalf of any party other than the commonwealth in connection with matters which came under your official responsibility as a state employee during the previous two years. However, the provisions of § 5(b) will similarly not apply to you in connection with the adjudicatory proceedings for which you will serve as hearing officer since your appearance will be on behalf of the commonwealth. The restrictions of § 5(b), however, will continue to apply to you with respect to other particular matters which came under your official responsibility during the two-year period prior to your departure from ABC in (date omitted)

The provisions of G.L. c. 268A, § 8A^[1] do not restrict your receipt of compensation for services rendered as a hearing officer to your former agency. While s.8A would have prohibited you from such eligibility for a thirty-day period following the termination of your tenure on ABC the thirty-day waiting period has already expired.

You should be aware, however, that, upon your assumption of status as a consultant to ABC you will become a state employee within the meaning of G.L. c. 268A, § 1(q),^[2] albeit as a special state employee^[3] inasmuch as you will be permitted to engage in private employment during normal working hours. Compare, EC-COI-81-94; EC-COI-81-64. Although you have not specifically requested guidance over limitations which G.L. c. 268A will impose on your private activities outside of your consultant functions for ABC , you should generally be aware that you may neither receive compensation from or represent private, parties in connection with other proceedings before ABC (§ 4)^[4] nor participate as an ABC consultant in any particular matter in which you or your immediate family have a financial interest (§ 6), nor possess a financial interest in any other contract in which ABC is a party (§ 7). You are free to submit to the Commission a request for a further advisory opinion if you seek guidance related to specific facts related to these limitations.

End Of Decision

 ^[1] G.L. c. 268A, § 8A provides as follows:  No member of a state commission or board shall be eligible for appointment or election by members of such commission or board to any office or position under the supervision of such commission or board. No former member of such commission or board shall be so eligible until the expiration of thirty days from the termination of his service as member of such commission or board.

^[2] G.L. c. 268A, § 1(q) defines "state employee" in relevant part as follows: "a person performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract or hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including membership of the general court and executive council.

^[3] G.L. c. 268A, § 1(o) defines a "special state employee" in relevant part as a state employee" (a) who is not an elected official and (b) occupies a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, or (c) in fact does not earn compensation as a state employee for an aggregate of more than eight hundred hours during the preceding three hundred and sixty-five days."

^[4] The application of § 4 to your situation may depend upon the number of days per calendar year in which you will provide consultant services to ABC. See, in particular, §§ 4, ¶ 6 which establishes an exemption for special state employees who work no more than sixty days and who comply with other requirements.