From (dates omitted) you held the position of (position omitted) in the state agency ABC in this position you negotiated and concluded several contracts, coterminous with the state's fiscal year, with the DEF institution, which arranged for the placement of certain individuals and employees to DEF. You are now working with ABC as an (title omitted) and considering the purchase of DEF. You ask whether this venture would be a violation of the conflict of interest law, General Laws Chapter 268A. The Commission concludes that it would not, subject to the limitations discussed below.
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.
In your present position as (title omitted) you are not involved in any matters concerning DEF. You state that your work is restricted to management consulting and policy research. You indicate that you intend to resign from your present position with ABC if you purchase DEF. Therefore, you will be a former state employee and the provisions of Section 5 will apply to you. Section 5 (a) prohibits you from acting as the agent or attorney for, or receiving compensation from, anyone other than the Commonwealth or a state agency in relation to a "particular matter"[1] in which the Commonwealth or a state agency is a party or has, direct and substantial interest and in which you "participated"[2] as a state employee. Since you participated in the negotiation of several contracts, which are particular matters as defined in section 1(k), you would be forever barred from acting as the agent or attorney for, or receiving compensation from DEF in connection with these contracts. However, since the contracts were awarded on an annual basis, none of the contracts in which you participated are still in effect and, therefore, Section 5(a) would not apply. See, EC-COI-81-50. The prohibitions of Section 5(a) will continue to apply, however, to your activities relating to other particular matters in which you participated while employed at ABC.
Further, Section 5(b) prohibits you for one year from appearing personally before any state court or state agency in connection with any particular matter as described above, which was under your "official responsibility"[3] at any time during the two years prior to the termination of your state employment. Accordingly, for one year following your date of resignation, you would be prohibited from appearing personally before any state court or state agency in connection with any matter that was under your official responsibility during your previous two years of state service.
You should also be aware of the provisions of Section 6 of Chapter 268A. Section 6 prohibits a state employee from participating as such an employee in any particular matter in which a business organization with whom he is negotiating or has any arrangement concerning prospective employment has a financial interest. This Section further provides that any state employee whose duties would otherwise require him to participate in such a matter must file with his appointing official and the Commission a written disclosure of the nature and circumstances of the particular matter and the financial interest therein. The appointing official may then either
- assign the particular matter to another employee, or
- assume responsibility for the matter himself, or
- make a written determination to be filed with the Commission that the "interest is not so substantial as to be likely to affect the integrity of the service which the Commonwealth may expect from the employee, in which case it shall not be a violation for the employee to participate in the particular matter."
This Section would be applicable to you whenever DEF has a matter pending before you in ABC. Therefore, you should continue to refrain from participating in any matters involving DEF. You should also refrain from participating in any particular matter involving private organizations which currently contract with DEF, if DEF has a financial interest in the matter. Further, if such matters come before you, you must notify your appointing official pursuant to the provisions above.
Additionally, the restrictions of Section 23 of Chapter 268A are applicable to your situation. This Section sets out standards of conduct which must be adhered to by all state employees, and prohibits the appearance of an impropriety as well as overt acts. Sections 23 (d) and (f) prohibit you from using or attempting to use your official position to secure unwarranted privileges for yourself or others and from pursuing a course of conduct which will raise suspicion among the public that you are likely to be engaged in acts that are in violation of your trust. Bearing this in mind, you should avoid participating in any matters at ABC involving parties that do business with DEF so that it does not appear that you are instrumental in giving these parties certain advantages in their dealings with ABC in anticipation of your prospective relationship with them.
In conclusion, the Commission advises you that you may enter into your proposed purchase venture as long as you observe the aforementioned limitations oil your actions.
End Of Decision
