| Date: | 09/25/1984 |
|---|---|
| Organization: | State Ethics Commission |
A special state employee who developed a computerized information system used by clients to analyze data may be privately employed in related activities subject to the restrictions in §§ 4 and 23 of the conflict of interest law.
You are an employee of state agency ABC. Until recently, you were also the Director of an ABC computerized information system (ABC's system), which you helped develop. Clients of the ABC system either submit data to the system to be analyzed or access the system to do their own analyses.
During the past year, you formed your own consulting corporation. The services your corporation will provide could overlap those of ABC's system.
Does G.L. c. 268A prohibit you, as a former Director of ABC's system and a current ABC employee, from pursuing related activities in your private capacity?
Section 4 prohibits you from being compensated by non-state parties in relation to matters submitted to ABC's system but does not outright prohibit the development of your own system.
As an employee of the state agency ABC, you are a state employee for the purposes of G.L. c. 268A and are therefore subject to the provisions of that law. The Commission has previously determined that ABC employees are "special state employees" pursuant to G.L. c. 268A, § 1(o)(2), which means that the conflict law applies less restrictively to you under certain circumstances.[1]
Section 4 of the conflict of interest law prohibits a state employee from acting as agent or attorney for, or receiving compensation from, anyone other than the Commonwealth in relation to any particular matter in which the state is a party or has a direct and substantial interest. As a special state employee, you are only subject to these prohibitions in relation to particular matters (a) in which you have at any time participated as a state employee; or (b) which are or within one year have been a subject of your official responsibility; or (c) which are pending in your state agency, since you work as a state employee more than 60 days in a 365 day period.
A "particular matter" is defined in the conflict law as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding..." G.L. c. 268A, § 1(k). In prior conflict opinions, the Commission has interpreted this term literally. For example, an entire project is not considered a particular matter (EC-COI-84-21); but rather each application, submission, request for a determination, or decision made within that project constitutes a separate and distinct particular matter. See EC-COI-84-45; 84-43; 84-14; 80-108. The ABC system itself is therefore not the particular matter for the purposes of the § 4 prohibition.
The particular matters are the submissions or requests for analyses that client's phone in or send to the ABC system to access information or to have their submissions coded and/or processed. Once such submissions are made to the ABC system, the state becomes a party to these particular matters for § 4 purposes. ABC also has a direct and substantial interest in such submissions, since its computerized system processes the submissions and the revenues generated by the submissions to finance the maintenance and expansion of that system. Inasmuch as any such submissions are particular matters pending in your state agency (ABC), § 4 prohibits you as a special state employee[2] (an ABC employee) from acting as agent for, or receiving compensation from, anyone other than the Commonwealth (e.g., private clients) in relation to those particular matters.
In essence, § 4 prohibits you in your private capacity[3] from any involvement with the ABC system for private gain. You would violate this section by being privately paid to code clients' submissions or to develop modified programs for clients to use in the ABC system. You would likewise violate this section if you or your corporation made submissions to the ABC system, if you were in fact hired by non-state clients to code and submit those requests. Nor could you be paid by, or act as agent for your corporation in relation to that corporation's own submissions to the ABC system. Finally, § 4 would prohibit you from marketing any software, such as a computerized rapid coding system specific to the ABC system, to any non-state parties. As long as you remain a special state employee at ABC, § 4 prohibits you from being paid by or representing these non-state parties in connection with the submissions pending before the ABC system.
Alternatively, you propose the development of a new and somewhat different computerized information system, e.g., a system for use on a microcomputer, for your corporation or other clients. The conflict law does not prohibit an individual from using the expertise he gained while in the state's employ. See Guide to the Conflict of Interest Law Chapter 268A, p. 14 (1983). Moreover, as discussed supra, the ABC system as a project does not constitute a particular matter for § 4 purposes. The Commission therefore concludes that your receipt of compensation from your corporation or other non-state clients for the development of a new system would not relate to a particular matter pending before ABC (e.g. a submission or request) in which ABC has a direct and substantial interest, and so does not violate § 4.[4]
However, because of your intimate association with the development of the system at ABC, and your current status as an ABC employee, you must take great care to abide by the standards of conduct of § 23 in developing your own system. Specifically, G.L. c. 268A, § 23 ¶ 2 (2) prohibits a state employee from using or attempting to use his official position to secure unwarranted privileges or exemptions for himself or others. For example, when potential clients contact you at ABC because of your past association with the ABC system, you should forward the call to the present Director and not use the opportunity to advertise your own system. Section 23, ¶ 3, prohibits a state employee from accepting employment 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 of authority or using such information to further his personal interests. It appears that the actual information in the ABC system is taken from public sources, and so is not confidential but rather in the public domain. Section 23, ¶ 3, would prohibit you, however, from using any confidential client list of the ABC system to further in any way your own interests in the development of a new computerized information system.[5]
End Of Decision
