Opinion  EC-COI-82-91

Date:	07/15/1982
Organization:	State Ethics Commission

A member of the General Court may accept employment with a private, non-profit corporation provided that while still a state legislator he does not participate in any special legislation affecting the financial interest of that corporation. Should such legislation come before him, he would be required to file a disclosure form with the Ethics Commission. He is also prohibited from using his official position to benefit the private corporation. Once his term expires, he is forever prohibited from receiving compensation or acting as agent or attorney for the private corporation in connection with special legislation or other particular matters in which he participated as a member of the General Court. For one year, he may not appear before the state in connection with any particular matter that was under his official responsibility during the last two years of his state employment. He may not lobby for anyone other than the Commonwealth before the General Court for one year.

Facts

You are currently a member of the General Court and do not plan to run for re-election. You are contemplating accepting a position with the ABC Corporation (ABC), a non-profit corporation. In this position you would be involved in conducting workshops for volunteers in the legislative and administrative areas of state government. 

Question

You would like to know the restrictions, if any, which the conflict of interest law, G.L.c. 268A, places on your activities for ABC before and after you leave the General Court.

Answer

The Commission concludes that you may accept employment with ABC subject to the conditions discussed below.

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. While you remain a member of the General Court, s.6 of G.L.c. 268A prohibits you from participating in any particular matter in which you or a business organization with whom you are negotiating or have any arrangement concerning prospective employment has a financial interest. ABC would be considered a business organization for purposes of s.6. However, the enactment of general legislation is specifically excluded from the definition of "particular matter" by s.1(k).[1] Section 6, therefore, prohibits you from participating as a member of the General Court in any special legislation affecting the financial interest of ABC. See, EC-COI-81-81, 81-99. Should such legislation come before you, you would be required to file a disclosure of that matter and of the financial interest of ABC with the Ethics Commission. Although there is an exemption provision contained in s.6 that allows state employees to participate in particular matters in limited circumstances, that exemption does not apply to an elected official. See, EC-COI-79-86.

       The provisions of s.23 of G.L.c. 268A also apply to you. This section sets out standards of conduct which must be adhered to by all state employees and involves the appearance of impropriety as well as overt acts. Section 23(d) prohibits a state employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. Therefore, you should not use your official position to benefit privately ABC. See, for example, EC-COI-81-38 (use of a legislator's office space for the benefit of a private, non-profit corporation prohibited). Since the Commission cannot speculate as to all the possible situations which may arise, if you have any questions about the application of s.23, you should contact the Commission.

       Upon the expiration of your term, you will become a former state employee, and the provisions of s.5 will apply to you. Section 5(a) prohibits you from ever knowingly acting as agent or attorney for, or receiving compensation from, anyone other than the Commonwealth or a state agency in connection with any particular matter in which the Commonwealth is a party or has a direct and substantial interest and in which you participated [2] as a state employee. Section 5(b) prohibits you for one year from appearing personally before any court or agency of the Commonwealth in connection with any particular matter as described above, which was under your official responsibility during the last two years of your state employment. These provisions would restrict your activities on behalf of ABC in connection with special legislation or any other particular matter in which you participated as a member of the General Court. Finally, you should also be aware of the prohibition contained in s.5(e). This section prohibits you from acting as legislative agent as defined in G.L.c. 3, s.39[3] for anyone other than the Commonwealth or a state agency before the governmental body with which you have been associated, within one year after you leave that body. Accordingly, you would be prohibited from acting as legislative agent or lobbyist for ABC before the General Court within a one-year period from your date of resignation.

Decision

       In conclusion, you may accept employment with ABC provided that you comply with the conditions set forth above. [4]

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

[3] For the purposes of G.L.c. 268A "legislative agent" means any person who for compensation or reward does any act to promote, oppose, or influence legislation, or to promote, oppose, or influence the governor's approval or veto thereof or to influence the decision of any member of the Executive branch where such decision concerns legislation or the adoption, defeat, or postponement or a standard, rate, rule or regulation pursuant thereto. The term shall include persons who, as any part of their regular and usual employment and not simply incidental thereto, attempt to promote, oppose or influence legislation or the governor's approval or veto thereof, whether or not any compensation in addition to the salary for such employment is received for such services. G.L.c. 3, s.39.

[4] Inasmuch as you do not intend, while a member of the General Court, to appear on behalf of ABC before any state agencies, the provisions of s.4 need not be discussed.