You were employed by the ABC state agency from January, 1983 to January, 1985. Since November, 1983, you have participated in the planning team (team) for the ABC. The team was formed to create a funding program. As a team member, you participated in discussions of different versions of the guidelines. You also drafted guidelines which were considered by the team. The guidelines and suggestions you contributed were not accepted by the team, although your participation in the team did result in being included as a category for funding.
You have submitted, on your own behalf, an application for funding under this program. Grant guidelines are available to any person applying for funding. The selection process is made by an out-of-state jury, and ABC staff do not participate in the deliberations. The ABC has informed you, based on their application of the conflict of interest law, that you are ineligible to apply for funding during the current round of grants. They are concerned that an award to you under this program during the first year following your employment with the ABC would have the appearance of impropriety. The ABC believes that its application of the conflict of interest law will serve to protect its reputation for fairness and impartiality.
1. Does G.L. c. 268A prohibit you from applying for or receiving a grant from the ABC?
2. May the ABC impose standards for the awarding of grants which are stricter than G.L. c. 268A and consistent with the purposes of G.L. c. 268A?
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. The applicable provisions to your situation are §§ 5 and 23. Section 5(a) provides that a former state employee may not knowingly act as agent or attorney for, or receive compensation directly or indirectly from, anyone other than the commonwealth or a state agency 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 he participated as a state employee. Although the provisions of § 5 are applicable to former state employees, they do not apply in your situation because you are acting on your own behalf, not for someone else. Compare, EC-COI-84-116; 84-117. Further, any compensation you would receive would be from the commonwealth and not from a private party.
Section 23 outlines standards of conduct applicable to former state employees with regard to confidential information obtained by or available to them in their state positions. These provisions prohibit you, as a former state employee, from engaging in any business or professional activity which will require you to disclose confidential information which you have gained by reason of your official position or authority. Section 23 will not outright prohibit you from applying for a grant from ABC.
The guidelines for funding are available to any person applying for a grant. The process of selecting winners is made by an out-of-state jury. In addition, ABC staff do not[1] participate in this decision Accordingly, the process established by the ABC for the awarding of grants minimizes the possibility for your use of confidential information you may have obtained as an employee of the ABC.
2. ABC's establishment of stricter standards for the award of grants.
The ABC has informed you that, based on their application of the conflict of interest provisions, you are ineligible to apply for funding under this program. ABC is concerned that former state employees of the ABC will benefit from past friendships and associations within the ABC and from confidential information obtained while a ABC employee. In addition, the ABC believes that their interpretation of the conflict of interest law will serve to protect its reputation for fairness and impartiality.
The conflict of interest statute does not preempt government agencies from promulgating their own employee regulations which address the subject of conflict of interest. The Commission has encouraged other government agencies to promulgate their own codes of conduct to expand the standards of § 23 and to clarify the agencies' expectations of their employees with respect to the applicability of G.L. c. 268A. For example, in EC-COI-80-51, the Commission ruled that where a state agency imposed stricter standards on its employees than found in G.L. c. 268A, the Commission, absent special circumstances, will not evaluate an agency ruling which gives guidance to its employees in the area of conflict of interest and which is consistent with the principles and aims of § 23. Here, the ABC is sensitive to its authority to award grants of money to the public. The ABC has the inherent power to formulate personnel rules and standards which further its goals and interest. The ABC's exercise its power is both reasonable and consistent with purposes of § 23, and the Commission will defer to the ABC's policy.
End Of Decision
