Opinion  EC-COI-83-80

Date:	03/24/1983
Organization:	State Ethics Commission

May a former state employee receive compensation as a consultant in connection with the former state employee's agency?

Facts

From 1982 to 1983, you were an employee in an Executive Office of the State (ABC).  During this period, you were on three committees which provided policy direction to a team of consultants hired by ABC to prepare a study in connection with a proposed project (STUDY I).  This study and the draft report of the consultants was completed in December of 1982.  Following public hearings, this draft would have been integrated into a final STUDY I.

Since the appointment of a new Secretary of ABC, the scope of the project has changed.  This change involves the study of new alternatives not previously considered in STUDY I.  After you left state employment new contracts were executed between ABC and the consultant team to evaluate the effects of these new alternatives. Upon completion of this study, these evaluations (STUDY II) will be joined with the draft STUDY I and the revised draft will be the subject of public hearings before finalization.  You state that the new studies will not change or otherwise affect the contents or conclusions of the STUDY I draft, but it is unclear whether consideration of the STUDY II alternatives will incorporate any of the STUDY I proposals.

After leaving state service, you formed a consulting corporation called Associates, Inc. (Associates).  You are President, a Director and a 50 percent owner of this firm. Mr. X. another former employee of ABC who participated in the contract with the consultant team for STUDY I, is Treasurer, a Director and a 50 percent owner of the firm, as well.  You state that Mr. X will play no role in the conduct of the firm's business. Mr. Y, a former employee of another state agency (DEF), is also a Director of Associates.  While employed by DEF, Mr. Y approved the scope of the consultant work in connection with STUDY I.

Mr. Y had no ownership interest in Associates, will play no role in its operation, but will receive a nominal fee for serving as a Director.  Neither Mr. X nor Mr. Y have played any role as state employees in connection with STUDY II. 

Associates has an opportunity to provide consulting services in connection with STUDY II. The consultant team would subcontract with Associates, subject to state approval, for this purpose.

Question

May you be compensated as an employee of Associates in connection with that firm's contract with the consultant for work on STUDY II? ^1/

Answer

Yes, provided the scope of STUDY II is independent of STUDY I.

Discussion

Upon leaving state employment, you became a former state employee for purposes of the state conflict of interest law, G.L. c. 268A, §1 et seq.

Section 5(a) of the conflict law prohibits a former state employee from acting as agent for, or receiving compensation from, anyone other than the Commonwealth in connection with any particular matter ^2/ in which the state is a party or has a direct and substantial interest and in which he participated as a state employee.

STUDY I is a particular matter.  By your actions in connection with STUDY I, you participated in that particular matter as a state employee.  The studies, as you characterize them, are independent of each other.  You state, however, that it is unclear whether STUDY II will alter the results of the STUDY I.  If, for example, STUDY II reevaluates any of the STUDY I conclusions, your compensation for that work would be in connection with a particular matter in which you participated. However, if the new alternatives are studied independent of the considerations and conclusions in STUDY I, STUDY II would be considered a new particular matter distinct from STUDY I. Neither you, nor Mr. X or Mr. Y, played any role in the signing or award of the contract with the consultant team for the STUDY II project. As a result you did not participate in this particular matter (STUDY II) as a state employee, so the prohibition in §5(a) does not apply.

Section 5(b) of the conflict law prohibits you for one year from appearing personally before a state agency as agent for anyone other than the state in connection with any particular matter over which you had official responsibility⁴/ during the last two years of your state employment. Because the award, signing and commencement of performance of the contract for STUDY II occurred after you left state service, that particular matter could not have been within your official responsibility. Therefore, §S(b) does not apply.

You should also be aware that, pursuant to a recent legislative amendment, two provisions of the standards of conduct, G.L. c. 268A, §23, will apply to you as a former state employee. These provisions prohibit a former state employee from accepting employment or engaging in any business or professional activities which will require him to disclose confidential information which he has gained by reason of his official position or authority and from improperly disclosing such materials⁵/ or using such information to further his personal interests. See, St. 1982, c. 612, §16.

^{l/ The Commission only issues advisory opinions upon request of the individual who is the subject of that opinion or his or her attorney. Should Mr. X or Mr. Y wish to know how the conflict of interest law applies to them in a specific set of circumstances each should seek an advisory opinion from the Commission.}

^{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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property." G.L. c. 268A, §l (k) .}

^{3/ Regardless of the existence of a different particular matter, you would not be prohibited from personally contracting directly with the state because your compensation would not be coming "from [some]one other than the Commonwealth."}

^{4/ 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, §l(i).}

^{5/ These materials are defined as "materials or data within the exemptions to the definition of public records as defined by [G.L. c. 4, §7].}