Opinion  EC-COI-84-43

Date:	03/27/1984
Organization:	State Ethics Commission

A state employee who previously worked for a state agency which administers a benefit plan covering state employees may now consult to non-state parties concerning benefit plans on the municipal level. However, he may not act as the agent or attorney for such parties before state agencies.

Facts

You currently work for state agency ABC and were previously employed by the Group Insurance Commission (GIC). The GIC was established pursuant to G. L. c. 32A, §3 to administer a program of group life and health insurance for state employees as set out in G. L. c. 32A et seq. You state that the fringe benefit programs for municipalities are separate from the state's program except

1. where a class of employees and retirees are required to be included in the state's health and life program (e.g. the inclusion of local housing and redevelopment authority employees in the definition section of covered employees, G. L. c. 32A, §2(b) and
2. the GIC's jurisdiction, upon request, to furnish information and advisory rulings as to the applicability of G. L. c. 32B to any municipality or state of facts, pursuant to G. L. c. 32B, §11.

Question

Does G. L. c. 268A permit you to perform consultant work for non-state parties concerning municipal health and life insurance plans, in light of your past employment with GIC and your present employment with ABC?

Answer

Yes, provided you comply with the restrictions set forth below.

Discussion

       For the purposes of G. L. c. 268A, you were a state employee while you were employed by the GIC and remain a state employee in your current position at ABC. G. L. c. 268A, §1(q). As such, you are prohibited by §4 of the conflict of interest law from being compensated by or acting as agent or attorney for anyone other than the state in connection with a particular matter^1/ in which a state agency is a party or has a direct and substantial interest. Municipalities, employee organizations, corporations, insurance brokers, certified public accounting firms and any other non-state government organizations or individuals you would work for, would be someone other than the state. Therefore, you are prohibited by §4 from receiving compensation or acting as their agent^2/ or attorney in connection with particular matters in which the state is a party or is directly and substantially interested. For example, §4 would prohibit you from acting as agent for any of the above-named parties in the submission of a request to GIC for a ruling on the applicability of G. L. c. 32B to their particular situation. Likewise, acting as an advocate for any of these parties in application processes before a state agency, e.g. to obtain a permit or license, would violate §4, inasmuch as the state has a direct and substantial interest in such particular matters. However, your involvement in a purely internal, advisory capacity, advising non-state parties on cost control techniques and municipal fringe benefit packages in general, would not run afoul of §4. In this instance, the state does not have a direct and substantial interest.

       Section 23 of the conflict of interest law establishes standards of conduct which apply to all state employees. That section provides that you may not accept employment or engage in any professional activity which will require you to disclose confidential information gained by reason of your official position or authority or improperly disclose such materials^3/ or use them to further your personal interests. Thus, any access to GIC employees or information not available to the general public (e.g. internal information concerning the advisory ruling procedure under G. L. c. 32B, §11) may not be transmitted to anyone by you or used to benefit them or your own consulting opportunities. Similarly, any confidential information gained by reason of your position at ABC must not be disclosed to private parties or used to your personal advantage.

End of Decision

DATE AUTHORIZED:                          March 27, 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. . .” G.L. c. 268A, §1(k) .

^2/ Acting as an agent for a party includes signing their contracts, submitting their applications, or otherwise acting as their advocate or representative before a state agency. EC-COI-84-6; 83-78.

^3/ 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]." see, G.L. c. 268A, §23 ¶3(2).