| Date: | 05/08/1984 |
|---|---|
| Organization: | State Ethics Commission |
A state employee may also serve as a partner in an accounting firm, subject to certain limitations. In particular, he may not perform accounting services for clients in relation to proceedings before any state agency, and his partner may not act as agent for a person or business in connection with any matter in which the state employee has participated or which is under his official responsibility.
You are employed as an examiner by a state agency (the agency). Your duties require you to participate in examinations of certain businesses. These examinations must, by statute, be conducted on a regular basis. An examination includes studying the business's activities and records to ensure that its business is being conducted in conformity with by-laws, regulations and statute. The end product of an examination is a report which is submitted to your supervisors. Upon their approval the report is made available to the business, and you discuss its findings and recommendations with the business's personnel.
You are also a Certified Public Accountant and are a partner in an accounting firm with another state employee. You state that your clientele does not include any businesses regulated by the agency, nor will it include any such business while you are a state employee.
As an examiner you are a state employee as defined in G. L. c. 268A, §1 (q), and are therefore covered by the conflict of interest law. Even though you have indicated that your firm will not be providing services to any business regulated by your agency while you are a state employee, there will nevertheless be restrictions on your activities.
Section 4 of the law prohibits a state employee from receiving or requesting compensation from or acting as agent for anyone other than the Commonwealth or a state agency in relation to any particular matter1/ in which the commonwealth or a state agency is a party or has a direct and substantial interest. This means that you may not perform services for any client in connection with any particular matter any state agency might be a party to or have an interest in. For example, you could not assist a medical provider in preparing Medicaid billings for submission to the Department of Public Welfare or assist any person or business in connection with a tax audit by the Department of Revenue.2/
Section 5 of the law regulates the conduct of any business partner of a state employee. You have indicated that your only partner is also a state employee, so that he is subject to the same restrictions you are. Should you take on an additional partner who is not a state employee, the following restrictions would apply to him or her. The partner may not act as agent or attorney for anyone other than the Commonwealth in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest and in which the state employee participates or has participated or which is the subject of his official responsibility. Thus, no partner of yours could act as agent or attorney for any person or business in connection with any examination you participated in or which was under your official responsibility.
As a state employee you are subject to the standards of conduct contained in §23. This section sets out standards of conduct which must be adhered to by all state employees and involves the appearance of impropriety as well as overt acts. Specifically, it prohibits a state employee from accepting other employment which will impair his independence of judgment in the exercise of his official duties. It also prohibits the employee from acting in a way which gives reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties. In this regard serious questions might be raised if you were to solicit business from those businesses that are regulated by the agency.3/ Section 23 also prohibits a state employee from accepting other employment or engaging in any activity which would require him to disclose or use confidential information which he has gained by reason of his official position or authority to further his personal interests.
The conduct of former state employees is governed by §5 of the statute. Section 5 (a) prohibits a former state employee from acting as agent or attorney for, or receiving compensation directly or indirectly from anyone other than the Commonwealth or a state agency 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 he participated as a state employee. An examination would constitute such a particular matter. Therefore, you would not be permitted to do work for any business in connection with any examination you participated in. Since each new examination constitutes a different particular matter, you could assist a business in connection with any examination that was planned and commenced after you left state service.
Section 5 (b) prohibits a former state employee for one year after leaving state employment from appearing personally before any court or agency of the Commonwealth as agent for anyone other than the Commonwealth in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest and which was under his official responsibility as a state employee during two years prior to his leaving state service. As an examiner, you may have had official responsibility for the work of subordinates in connection with examinations even though you may not have personally participated in a given examination. Thus, for one year after leaving the agency, you may not appear before any business in connection with any examination over which you had official responsibility during the two-year period prior to your leaving the agency.
You should be aware of two other provisions of §5 which place limitations on your conduct after you leave state service. First, §5 (e) would prohibit you for one year from serving as legislative agent for anyone other than the commonwealth or a state agency before your former agency. Second, §5 (c) would prohibit any partner of yours from engaging in any activity you are prohibited from engaging in for a period of one year following your leaving the agency.
Finally, the same principles of confidentiality contained in §23 which regulate your conduct as a state employee will be applicable to your conduct after you leave state service.
End of Decision
DATE AUTHORIZED: May 8, 1984
