Opinion  EC-COI-83-115

Date:	08/16/1983
Organization:	State Ethics Commission

A state official may not participate in matters affecting the financial interests of an institution with which he is negotiating for future employment. Following his departure from state employment, he may not represent the institution in relation to any matter in which he participated while a state employee.

Facts

You are presently an employee of the Bureau of Post Secondary Education (Bureau). This is a position within the Department of Education in the Division of Occupational Education. G. L. c. 15, §1F. You are involved in the licensing and operation of private trade, business and correspondence schools. G. L. c. 83, §§21A-G, c. 75D, §1 et seq.; c. 75C, §1 et seq. You are contemplating leaving state employment in order to work with a trade or business school. Currently, you do not know if you will be working at a previously established school or starting a new school.

Question(s)

1: Upon leaving state employment, can you open and operate a new trade or business school without violating G. L. c. 268A, the conflict of interest law?

2: Upon leaving state employment, can you become the director or administrator of a trade or business school previously licensed by you in your state capacity without violating G. L. c. 268A?

Answer

Yes, subject to the conditions discussed below.

Discussion

       Because you have not as yet terminated your state employment you are subject to the provisions of G, L. c. 268A, §6. During the period prior to your leaving the Bureau, §6 will prohibit you from participating^1/ in particular matters^2/ in which a trade or business school with whom you are negotiating or have an arrangement concerning prospective employment has a financial interest. Further, if such a matter comes before you at the Bureau which would require your participation, you must advise the official responsible for your appointment and the Commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest, and the appointing official shall thereupon either (1) assign the particular matter to another employee; (2) assume responsibility for the particular matter; or (3) make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect from you in which case it shall not be a violation for you to participate in the particular matter. License determinations are particular matters as defined in §1(j). Therefore, if you decide to pursue employment with a trade or business school which is currently seeking a license or license renewal, you must follow the procedure outlined above.

       Upon leaving state employment you will become a former state employee subject to the provisions of §§5 and 23. Under §5(a), you are prohibited from acting as the agent or attorney for, or receiving compensation from anyone other than the state in connection with a particular matter in which the state is a party or has a direct and substantial interest and in which you participated while a state employee. Applying this provision to the facts of your case, you may open and operate a new trade or business school without violating §5(a) because you did not participate as a state employee in particular matters related to these schools since they were not in existence while you worked in the Bureau. However, §5(a) will restrict your activities with respect to those schools whose licenses you were involved when you were a state employee. You may serve as the director or administrator of such a school, but you are permanently barred from representing it in any licensing procedure or any other particular matter in which the state is a party or has a direct and substantial interest and in which you participated as a state employee. A license renewal would not be included in this prohibition if you did not participate in it before you left the Bureau or if it arose after you left state employment because each license renewal is a different particular matter under G. L. c. 268A. EC-COI-81-98; 81-50.

       Section 5 (b) prohibits a state employee for one year from the date of his termination of state service from appearing personally before any court or agency of the Commonwealth as agent or attorney for anyone other than the Commonwealth in connection with any particular matter in which the Commonwealth is a party or has a direct an substantial interest and which was under his official responsibility^3/ as a state employee at any time within two years prior to the termination of his employment. This limitation goes beyond those matters in which you participated and turns on your authority in connection with any matter. It would include all matters pending in the Bureau for which you were responsible but in which you did not personally participate. Since you are unsure of the date on which you plan to leave the Bureau, the Commission cannot advise you of the exact time period encompassed by this provision. 

       Finally, §23 of G. L. c. 268A will also apply to your activities as a former state employee. Under this section a former state employee is prohibited from accepting or engaging in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority, from improperly disclosing such information acquired by him in the course of his official duties and from using it to further his personal interests. You are subject to the provisions of this section regardless of whether your private sector activities are restricted by the provisions of §5.

End of Decision

DATE AUTHORIZED August 16, 1983

^1/ 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 municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G. L. c. 268A, §1(j).

^2/ 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, §1(k)

^3/ For the purposes of G. L. c. 268A, "official responsibility" is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G. L. c. 268A, §1(i).