Opinion  EC-COI-81-159

Date:	11/24/1981
Organization:	State Ethics Commission

A former state employee may work for a private firm on a state contract to complete design plans, because the employee did not participate in creating those plans and did not participate in creating a state contract to complete those plans while in state service. G.L. c. 268A, § 5 does not prohibit the former state employee from receiving compensation in connection with the contract to complete design plans because the employee did not participate personally and substantially in the preparation, evaluation, or award of the contract to complete the design plans. However, the former employee remains prohibited from working on other matters in which the employee previously participated as a state employee.

Facts

You served as the Acting Director of a Division (Div. A) state agency (ABC) until 1980. Your jurisdiction included the operation of a certain facility (Facility). On or about 1975, a fire at the Facility created the need for a new electrical and mechanical design. During the following years, the ABC Construction Division completed most, but not all, of the electrical and mechanical design planning for the Facility. As the Director of Div. A , you were aware of the progress of the Construction Division's plans, but had no control over the Construction Division and played no role in their preparation, aside from offering initial suggestions over the operational needs of Div. A. At the time you left your position to assume employment with a private firm (DEF), the plans remained incomplete. The ABC now wishes to hire a consulting firm to complete the plans and has advertised for qualified applicants. DEF has submitted the necessary papers and has included your name as someone competent to work on the project.

Question

You wish to know whether the conflict of interest law, G.L. c. 268A, permits you to work for DEF to complete the design planning for the Facility.

Answer

The Commission advises you that it does.

Discussion

In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. Upon your departure from the ABC in 1980, you became a former state employee within the meaning of G.L. c. 268A, s.5 (see, EC-COI-80-23), and are, therefore, subject to the restrictions contained therein. G.L. C. 268A, s.5(a) prohibits you from receiving compensation or acting as the agent for DEF in connection with any particular matter^[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated^[2] while serving as a state employee. The contract between DEF and the ABC would be a particular matter to which a state agency is clearly a party. However, the Commission advises you that you would not violate s.5(a) by receiving compensation in connection with this contract since you did not participate, as a state employee, in the preparation, evaluation, or awarding of the contract to DEF. Compare, EC-COI-81-114; 81-113. The initial suggestions which you made to the Construction Division regarding Div. A's operational needs were not related to the ultimate decision to contract out the planning work nor do your activities in that regard rise to the level of personal and substantial participation in the contracting process. Further, you did not, as a state employee, make recommendations which created the need for contract since that decision was made by the ABC well after you left the ABC. See, EC-COI-81-58. You should be aware, however, that the prohibitions of s.5(a) will continue to limit your activities with respect to other particular matters such as decision, determinations and rulings which you made while serving in Div. A^[3].

End Of Decision

[1] "Particular matter", any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding but excluding enactment of general legislation by the general court. G.L. c. 268A, s.1(k).

[2] "Participate", participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[3] The restrictions of G.L. c. 268A, s.5(b) related to appearances on matters which came under your official responsibility at the ABC are no longer applicable to you since more than one year has elapsed since your departure from the ABC.