Opinion  EC-COI-85-43

Date:	05/28/1985
Organization:	State Ethics Commission

An inspector with a corporation or vendor which contracts with the state is not a state employee for the purposes of Chapter 268A where the state contract does not specifically call for him to perform particular services.

Facts

Until recently, you were employed as an inspector with ABC consulting firm (ABC). ABC has a contract with state agency DEF to review the work of another company GHI. The ABC contract lists categories of the number of personnel required to complete the work. The names of ABC employees are not listed in the DEF contract. You received your compensation directly from ABC. GHI has contracted with the DEF. Since your termination of employment with ABC, GHI has requested that you work for them.

Question

Would the conflict of interest law, G.L. c. 268A, prohibit you from accepting employment with GHI?

Answer

No, because you are not subject to that law.

Discussion

The conflict of interest law defines "state employee," in relevant part, as "a person performing services for or holding an office, position, employment or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis." G.L. c. 268A, § 1(q). The definition has not been extended to an employee of a corporation or vendor which contracts with the state unless the commonwealth intends to contract for the services of a specific individual. For example, in EC-COI-83-129 the Commission concluded that a project leader in a software business with a contract with the state was a "state employee" because the contracting state agency specifically contemplated that he would be the project leader for the contract. See also EC-COI-83-165; EC-COI-83-94; EC-COI-81-120.^* An examination of the contract proposal between ABC and DEF makes it clear that DEF did not contemplate using your services specifically. You were a salaried employee of ABC and your name does not appear in the contract. The contract language deals generally with categories of employees, without designating specific individuals. Therefore, while employed by ABC you were not considered a "state employee" as defined in G.L. c. 268A.

Because you were not a state employee in the ABC contract, you are not bound by the prohibitions of § 5 which prevent former state employees from receiving compensation from private parties in connection with any particular matter in which they participated as state employees.

 

End Of Decision

^* These citations refer to previous advisory opinions issued by the Commission. Copies of these and all other advisory opinions may be obtained at the Commission's offices.