Opinion  EC-COI-81-172

Date:	12/08/1981
Organization:	State Ethics Commission

If a present Department of Public Safety employee were to leave DPS and join an association, G. L. c. 268A, § 5(a) would prohibit the former DPS employee from being paid by the association to administer a State grant in which the DPS employee participated.

Facts

You are employed by the Commonwealth Department of Public Safety (DPS) and have been assigned since (date) to provide administrative assistance on a project for a regional association in the field of public safety (Assoc.). Assoc. is an association comprised of six representatives from state police agencies within (region). During the past year, Assoc. received federal grants totalling approximately $300,000 and made these funds available to police departments for investigative purposes. In June, 1981, representatives of the federal government informed Assoc. that supplemental grant funds would be available. You, thereafter, spent a major portion of your time preparing and revising Assoc.'s grant application and, together with other individuals, worked on the development of the budget for the application. Additionally, you proposed the staffing patterns which would be necessary if the supplemental grant were approved. The Department of Justice has recently chosen Assoc. as the recipient of a grant for approximately $300,000. Under this grant, Assoc. will hire its own employees to develop a centralized regional information sharing system.

Question

You wish to know whether the conflict of interest law permits you to leave your DPS position to accept one of the newly-created positions under the supplemental Assoc. grant.

Answer

The Commission advises you that it does not.

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. If you were to leave your position with DPS and accept employment with Assoc., you would become a former state employee within the meaning of G.L. c. 268A, s.5.[1] As a former state employee, you are prohibited from receiving compensation from anyone other than the commonwealth or a state agency in connection with any particular matter[2] in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated[3] while a employed as state employee. G.L. c. 268A, s.5(a). The supplemental grant application which Assoc. submitted to the federal government during the summer of 1981 would be a particular matter under G.L. c. 268A, s.1(k). G.L. c. 268A, s.5(a), therefore, prohibits you from accepting private compensation in connection with any Assoc. grant application in which you substantially participated. The Commission finds that your participation in the Assoc. supplemental grant application was personal and substantial in view of the major portion of your time which you spent in preparing and revising the application, preparing the budget, and proposing staffing patterns. See, EC-COI-81-58; 79-74. Compare, EC-COI-81-113 where the Commission concluded that limited advice rendered at a preliminary stage did not constitute "substantial participation in an agency's decision." Therefore, inasmuch as you have previously participated in the Assoc. grant. application, you may not accept employment from Assoc. under the grant.

STATE ETHICS COMMISSION

By: /s/ Robert V. Greco
General Counsel


 End Of Decision  

[1] The Commission concludes that Assoc. is not a state agency within the meaning of G.L. c. 268A, s.1(p). It is clear from a review of the legislative adoption of (statute) that Assoc. was conceived as a regional entity covering (region) rather than as an instrumentality of the Commonwealth of Massachusetts. While it is true that the goals of DPS and Assoc. are similar, Assoc. is not subject to the functional and financial controls of any one state. See, (Statutory citation)

[2] "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).

[3] "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.