Opinion  EC-COI-81-160

Date:	12/01/1981
Organization:	State Ethics Commission

A former state employee may accept compensation from a private contractor, provided the compensation is not related to particular matters in which the employee previously participated. G.L. c. 268A, § 5 prohibits the former employee from receiving compensation in connection with archaeological surveys the employee reviewed or recommended while employed by the state agency. However, the former employee may perform and be privately compensated for new surveys that were not previously reviewed or acted upon during the former employee’s time with the state agency.

Facts

You were employed by a state agency (ABC) as an archaeologist until 1981. In that capacity, you reviewed archaeological surveys conducted by consultants to ABC. These surveys are required by the ABC and Massachusetts Historical Commission (MHC) as a precondition to certain construction. Following your review of the sufficiency of the surveys, you recommended appropriate action to the ABC which, in turn, referred the surveys to the MHC which made the final decision granting or denying construction permits within the designated survey areas. Among the consulting organizations whose archaeological surveys you reviewed was a private organization (DEF). The DEF will complete a one-year contract with the ABC in December, 1981. You state that while employed at the ABC, you played no role in the preparation, negotiation or decision to award the contract to DEF.

Question

You would like to work for DEF in connection with new construction area surveys which have not previously been reviewed by the ABC.

Answer

The Commission advises you that the conflict of interest law, G.L. c. 268A, permits you to receive compensation from the DEF for these services, subject to the conditions set forth below.

Discussion

Upon your departure from the ABC in July, 1981, you became a former state employee within the meaning of G.L. 268A, s.5 and are, therefore, subject to the restrictions contained therein. G.L. c. 268A, s.5(a) prohibits you from receiving compensation from or acting as the agent for the 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 construction permit decisions of the MHC and ABC would be particular matters to which the commonwealth or a state agency would clearly be a party. Therefore, you could not receive compensation from DEF in connection with archaeological surveys which you previously reviewed and recommended while employed by the ABC. However, you would be permitted by s.5(a) to receive compensation from DEF to perform new surveys which you neither reviewed nor recommended during your prior ABC employment since you would not have previously participated in these surveys while serving as a state employee.^[3] See, EC-COI-81-111; 81-91.

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] In view of your statement that you exercised no supervisory responsibilities at the ABC, the provisions of s.5(b) which would limit, in certain situations, your appearances before state agencies and are not applicable to you.