Opinion  EC-COI-82-31

Date:	03/19/1982
Organization:	State Ethics Commission

Section 5(a) does not prohibit a state employee who participated in a matter as a state employee and resigns from the state agency to work for another state agency to then work on the same matter.

Introduction

You were an employee of a state agency (ABC).

As such you participated in a proceeding (DEF I) before another state agency (DEF) which concerned a private company (the Company).

Before the final order was issued in DEF I, you assumed a decision making position in DEF. You abstained from participating in DEF I at DEF.

There is presently before DEF a proceeding (DEF II) concerning the Company, and the issues considered and decided in DEF I may play a role in the deliberations of this new proceeding. You ask whether the state conflict of interest law, G.L. c. 268A, bars your participation in DEF II. The Commission concludes that the law does not per se prohibit your participation based on the information presented.

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

Discussion

When you left your private law practice and began your employment with ABC, you were assigned responsibility for that office's participation in DEF I. You were instructed that the purpose Of ABC's participation was to support the position advocated by the Company in DEF I.

You filed an appearance on behalf of ABC and submitted a brief on behalf of ABC supporting the Company. 

DEF has stated that the decision in DEF I is dispositive of the issue it addressed for DEF II purposes but not of DEF II as a whole since relevant issues which were not decided in DEF I are within the scope of DEF II. You state that the legal standard for the determination to be made in DEF II is uncertain. One issue you do foresee concerns all the Company's actions related to the subject matter of DEF II - including the nearly two years following the close of the evidentiary record of DEF I. You state that you may utilize the finding in DEF I but imply that the finding is not dispositive on issues not decided in DEF II and may lead to a result in DEF II that might be interpreted as a modification of the order in DEF I despite the decision of the DEF not to reconsider the earlier decision. 

As an employee of the ABC and of the DEF you were and are a state employee, G.L. c. 268A, § 1(q), and are subject to the conflict of interest law. Section 5(a) of that statute prohibits a former state employee from receiving compensation from or acting as agent or attorney for anyone other than the Commonwealth in relation to a particular matter in which the state or a state agency is a party or has a direct and substantial interest and in which he participated while a state employee. The provisions of § 5(a), however, do not apply to a state employee who resigns to accept employment with a second state agency. EC-COI-81-60.^[3]

Section 23 of the conflict of interest law contains standards of conduct to guide all state, county and municipal employees. Since these standards supplement the other provisions of the law, conduct may violate § 23 even though it is not specifically prohibited by any other provision of the statute. Section 23(e) proscribes "conduct which gives a reasonable basis for the impression that any person can improperly influence or unduly enjoy [your] favor in the performance of [your] official duties, or that [you] are unduly affected by the kinship, rank, position or influence of any party or person." It is conceivable that one who has previously advocated a position which is instrumental to the determination in a subsequent proceeding could be exhibiting conduct which gives a reasonable basis for the impression that he is unduly affected by the party whose position he espoused. The Commission feels, however, that your case is not appropriate for the application of § 23(e) in this way. Your previous participation, although advocating a position favorable to the Company was, in fact, a part of your role as a state employee. Also, your characterization of the role that the order in DEF I will play, and whether there will be some de facto modifications of that order, is so speculative and uncertain that the Commission is unable to weigh the importance of that order, and, thus, your advocacy in relation to it, to the determination to be made in DEF I. 

The Commission is also hesitant to apply the conflict of interest law to this case where that application is indefinite and there is a body of law concerning the existence and effect of bias in administrative proceedings. Professional standards^[4], treatises^[5], and judicial opinions^[6] have all developed and applied the common law where the question of bias has arisen. The Commission does not find this an appropriate case to intrude on this authority or that of the DEF.

In conclusion, the state conflict of interest law does not prohibit your participation as Commissioner in DEF II. The Commission makes no finding beyond its interpretative responsibility in regards to G.L. c. 268A.

[3] This is also true for § 5(b) restricting activities of the former state employee acting as agent or attorney for a non-state party in relation to matters within his official responsibility.

[4] ABA Code of Professional Responsibility.

[5] Davis, Administrative Law Treatise, secs.19:1 - 19:10 (1980); Cooper, State Administrative Law, pp. 338-350 (1965); Schwartz, Administrative Law, pp. 303-316 (1976).

[6] American Cyanamid Co. v. FTC, 363 F. 2d 757 (6th Cir. 1966); Texaco, Inc. v. FTC, 336 F. 2d 754 (D.C. Cir. 1964), vacated on other grounds 381 U.S. 739 (1965); Buffalino v. Kennedy, 322 F. 2d 1016 (D.C. Cir. 1963).