Opinion  EC-COI-84-21

Date:	02/21/1984
Organization:	State Ethics Commission

The former chairman of a state task force may now work for one of the groups represented on that task force, because he would not be working on matters in which he previously participated as a task force member.

Facts

Until recently, you were an Assistant Secretary in a state agency (ABC). As such, you were Chairman of a Task Force set up to advise the Secretary of ABC in connection with a project (Project) under ABC's jurisdiction. Decisions regarding the direction of the Project were made by the Secretary, following input from the Task Force reported by you. The Task Force is made up of various representatives of groups which would be affected by the Project. While you were Chairman of the Task Force, the Project called for a long-term solution to capacity problems in the area. Under the new Secretary of ABC, the scope of the plan has been changed, and now includes temporary rather than permanent solutions.

You are President, Director, fifty percent owner and principal employee of Company DEF, a consulting firm. DEF has been asked by a local Association (XYZ), a group represented on the Task Force, to provide consulting services in connection with the Project as it now exists.

Question

Does your prior role as a state employee in connection with the Project prohibit you from working for the XYZ as a consultant?

Answer

No.

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 forever prohibits a former state employee from acting as agent for, or receiving compensation from, anyone other than the state in connection with a particular matter^1/ in which the state is a party or has a direct and substantial interest and in which he participated while state employee. Although your consulting services for XYZ would be connected with the same project with which you were associated as a state employee, the Commission does not generally view an entire project as a "particular matter" for §5 purposes. Instead, the various decisions, determinations and proceedings related to a project, and the former state employee's role in them, are examined. 

       While Chairman of the Task Force, you and its members were concerned with a particular long-term plan to achieve the project's goals. After you left ABC, that plan was rejected in favor of a short-term plan which lacked most of the attributes of the original. Even the portion of the new plan which was similar to the old differs because it is a temporary, rather than permanent, step. Because the new plan involves a smaller-scale solution with somewhat different attributes, XYZ's role on the Task Force will focus on concerns different from those raised by the old plan.^2/ Therefore, even though the Task Force and the Project are the same as that with which you were associated while a state employee, the new plan is a new particular matter. And, because the new plan arose after you left ABC, you did not participate as a state employee in it. Therefore, §5 (a) does not prohibit you from being employed by XYZ as a consultant in connection with its role on the Task Force. See EC-COI-83-80; 83-168; 84-14 (§18). If, however, the old plan should be revived, or if the ramp proposal reverts to that included in the old plan, this result could change, and you should contact the Commission in that event.^3/   

       Section 23 outlines standards of conduct applicable to former state employees in regard to confidential information obtained by, or available to, them in their state positions. These provisions prohibit a former 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 or authority and from, in fact, improperly disclosing such materials^4/ or using such information to further his personal interests because of your prior role as a state employee and your significant access to information connected with the Project, you must take great care to abide by these provisions.

End of Decision 

DATE AUTHORIZED:                        February 21, 1984

^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 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, §1(k).

^2/ For example, you indicate that the new plan will not involve the submission of a particular statement which was required under the old plan.

^3/ G. L. c. 268A, §5(b) proscribes your appearance personally before a state agency on behalf of a non-state party for one year in connection with particular matters within your official responsibility as a state employee. Because your state employment ceased one year ago, this provision is no longer applicable to you.

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