Opinion  EC-COI-84-31

Date:	03/12/1984
Organization:	State Ethics Commission

A former state employee who participated in an application by a private company that was denied would violate § 5 by leaving the state agency to work for the private company to work on a re-submission of the application subject to review under revised regulations because the applications involved the same matters. The former employee would also be subject to the provisions of § 23(c).

 

Facts

You were employed by state agency ABC until 1983 and were employed in a managerial capacity. While you were an ABC employee, company XYZ filed an application (Application No. 1) related to a subject area within your responsibility. The application was denied.

In 1983, the ABC promulgated revised regulations, affected the criteria for evaluating subsequent applications. XYZ filed a new application (Application No. 2) containing essentially the same proposal outlined in Application No. 1.

In 1983, you began employment with the XYZ. In that capacity, you have primary responsibility for the development of new programs at XYZ, including the obtaining, when necessary, of approval from ABC for those programs.

Question

Does G. L. c. 268A permit you to receive compensation from the XYZ or act as its agent in relation to the ABC review and action on Application No. 2?

Answer

No.

Discussion

1. Section 5

During the period in which you served as an employee with ABC, you were a state employee for the purpose of G.L. c. 268A, and, upon leaving that position, you became a former state employee. As such, you are prohibited by § 5(a) of chapter 268A from acting as agent or attorney for, or receiving compensation from, anyone other than the Commonwealth in connection with a "particular matter" in which the Commonwealth or a state agency is a party or has a direct and substantial interest and in which you "participated" as a state employee. Particular matter is defined in Section 1(k) to include "any judicial or other proceeding, application, submission, request for a ruling or other determination, ... controversy ... decision, determination, finding..." Under G.L. c. 268A, participate means to "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, § 1(j).

Application No. 1 falls within the definition of "particular matter" G.L. c. 268A, § 1(k). Your involvement in discussions with ABC officials concerning matters within Application No. 1 constituted participation with regard to that application. You would therefore violate § 5(a) if you were paid by XYZ or acted as its agent or attorney in the appeal of the Application No.1 determination or in any subsequent review of Application No. 1 should it be remanded by the courts.^[1]

The question remains, however, whether Application No. 2 constitutes the same "particular matter" as Application No. 1. While Application No. 2 technically constitutes a separate application, it involves the same controversy as the first application in which you previously participated as an ABC employee. Inflationary factors aside, it appears that ABC has resubmitted the identical application. The review process concerning the application will involve the same parties and the same issue as in the first review process. The Commission therefore concludes that you are now prohibited from having any involvement in Application No. 2 on behalf of XYZ. See EC-COI-81-28 [former state employee prohibited under § 5(a) from representing private parties in a lawsuit, based on newly enacted legislation, involving the same controversy as that in a case in which he participated as a state employee]; EC-COI-80-108 [proposed activities prohibited by § 5(a) because the underlying claims of her private clients were integrally related, if not identical, to the claims she previously investigated as a state employee].

The fact that Application No. 2 will be reviewed under revised ABC regulations does not change the Commission's conclusion in this case. ABC staff will still check applications to assure consistency with the objective of the process enunciated in the regulations. The factor which was central to the review of Application No. 1 will be the focus in the Application 2 review process. The review of Application No. 2 will therefore concern the same particular matter as was involved in the review of Application No. 1. Accordingly, you are prohibited under § 5(a) from participating in the Application No. 2 review process on behalf of XYZ^.[2]

As a former state employee, you are also subject to two provisions of the standards of conduct under G.L. c. 268A, § 23. These provisions prohibit a former state employee from accepting employment or engaging in any business or professional activity which will require her to disclose confidential information which she has gained by reason of her official position or authority and from, in fact, improperly disclosing such materials or using such information to further her personal interests. Thus, any confidential information you acquired as an employee of ABC, relating specifically to the denial of Application No. 1 or more generally to the internal policies of ABC, must not be disclosed to XYZ.

 

End Of Decision

^[1] G.L. c. 268A, § 5(b) would further prohibit you for one year from personally appearing before any court or agency of the state as XYZ's agent or attorney in connection with Application No. 1.

^[2] This result is consistent with 5. CFR § 737.5(4). a federal regulation adopted pursuant to the federal counterpart to G.L. c. 268A [18 U.S.C.§ 201 et seq.]. which provides:

     (4) The same particular matter must be involved. The requirement of a "particular matter involving a
     specific party" applies both at the time that the Government employee acts in an official capacity
     and at the time in question after Government service. The same particular matter may continue in
     another form or in part. In determining whether two particular matters are the same, the agency
     should consider the extent to which the matters involve the same basic facts, related issues, the
     same or related parties, time elapsed, the same confidential information, and the continuing
     existence of an important Federal interest.

The result is also consistent with Disciplinary Rule DR9-101(B) which addresses the "revolving door" problem by prohibiting a lawyer from accepting private employment in a matter in which he had substantial responsibility while he was a public employee. See Mass. Supreme Judicial Court Rule 3:22, American Bar Association Code of Professional Responsibility. DR9-101(B). In determining whether the same "matter" is involved, the test should focus upon the similarity of the facts involved in the prior and current representations. General Motors Corp. v. City of New York, 60 FRD 393,501 F.2d 639,650-52 (2d. Cir. 1974). Where the two suits [or applications] have a "nuclear identity." "The subtleties of differential proof will not obviate 'the appearance of impropriety' to an unsophisticated public." Id. at 651. Rather than being designed for Holmes' proverbial "bad guy," the Code of Professional Responsibility was drawn for the "good guy," as a "beacon to assist him in navigating an ethical course through the sometimes murky waters of professional conduct." Id. at 649. Likewise, the Commission is not intimating that you were improperly influenced while at ABC, or that you are guilty of any actual impropriety in signing on with XYZ; but concludes solely that you are prohibited from working on Application No. 2 because it is the same "particular matter" under the conflict of interest law, G.L. c. 268A.