Opinion  EC-COI-85-48

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

The assistant director for a division of a state agency may accept a position with a company to work under a contract with that agency (upon resigning from the agency) because he has not substantially participated in the contract while employed by that agency.

Facts

You currently serve as the assistant director for a division of the ABC, a state agency. You supervise a staff of fifteen employees and are responsible for two primary areas. The first is the receipt and review of provider claims which require further pricing because of the service provided. In such situations, as in the pricing of certain dental services, you do not make a substantive decision or recommendation concerning the price but merely forward the claim to the appropriate ABC staff for its review and determination. Aside from your routing responsibilities, you also handle inquiries from providers and attempt to facilitate the handling of their claims. In carrying out this responsibility, which you state is a public relations function, you deal primarily with other staff in requesting the status of pending claims.

Currently, ABC does not process the actual claims "in-house." In September, 1982, ABC entered into a four-year contract with a private corporation (Corp), to process all claims. You state that you were not involved as a ABC employee in the selection process which led up to the Corp.'s contract, nor in any negotiations with the Corp. concerning its responsibilities under the contract. You currently have no official role in the Corp. contract nor do you make any decisions or evaluations concerning Corp.'s performance. In carrying out your public relations functions, you regularly contact Corp. employees to ascertain the status of particular claims.

You are considering leaving your ABC position and are interested in applying for one of several computer systems analyst vacancies which Corp. has in the implementation of the ABC contract.

Question

Does G.L. c. 268A permit you to accept a position with the Corp. in the implementation of its ABC contract in light of your current ABC responsibilities?

Answer

Yes,

Discussion

In your capacity as an ABC employee, you are currently a state employee for the purposes of G.L. c. 268A. If you resign your ABC position to work for the Corp., you will become a former state employee and will be subject to the restrictions of §§ 5 and 23 of G.L. c. 268A.^[1]

Under § 5(a) you are prohibited from receiving compensation from or acting as agent or attorney for the Corp. in connection with any particular matter^[2] in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you previously participated^[3] as a state employee. The Corp.'s contract with ABC is a particular matter to which a state agency is clearly a party. Because you now wish to work for the Corp. in relation to this contract, the application of § 5(a), therefore, turns on whether your involvement in the Corp. contract as an ABC employee has risen to the level of personal and substantial participation in the Corp.'s contract. The Commission concludes that it has not. To participate within the meaning of G.L. c. 268A requires a degree of approval, decision-making, recommending, or advising which you have not exercised with respect to the Corp.'s contract, in particular, the decisions with respect to the selection of the Corp. and the evaluation of the Corp.'s performance have been made by other ABC officials. While it is true that you have regular dealings with the Corp.'s employees who implement the ABC contract, the public relations function which you perform in requesting the status of particular provider inquiries from the Corp.'s employees is not personal and substantial participation in the Corp. contract.^[4] Compare, EC-COI-84-45; In the Matter of John Hickey, 1983 Ethics Commission 158, 159.

Three provisions in § 23 are relevant to your situation. Until you leave your ABC position, you should be aware that G.L. c. 268A, § 23(¶2)(2) and (3) prohibit you from using your official position to secure unwarranted privileges or exemptions for the Corp., and from, by your conduct, giving reasonable basis for the impression that the Corp. can improperly enjoy your favor by the performance of your official duties. Because you make regular inquiries to the Corp. employees in carrying out your public relations function, you should take steps to assure that your loyalty remains with ABC during the period prior to your departure. For example, you may wish to discuss your employment plans with your appointing official so that the official can determine what if any safeguards should be taken to avoid potential problems under § 23. You should also be aware that § 23(¶3) prohibits you from disclosing to the Corp. any confidential information which you have acquired as an ABC employee.

End Of Decision

^[1] Based upon the information you have provided, it does not appear that you would retain your state employee status by working on Corp.'s contract with ABC. Absent circumstances demonstrating that ABC expects you to provide the services called for in the Corp. contract, you will be treated as an employee of a vendor corporation and therefore not covered by the definition of state employee in G.L. c. 268A, § 1(q).

^[2] G.L. c. 268A, § 1(k) defines "particular matter" 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.

^[3] G.L. c. 268A, § 1(j) defines "participate" as "participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise."

^[4] Because you do not possess the authority to approve, disapprove or otherwise direct ABC action under the Corp. contract, you will not be deemed to have "official responsibility" for the contract. G.L c. 268A, § 1(i). Therefore, it is unnecessary to address the limitations which § 5(b) would impose on your personal appearances in relation to matters which were under your official responsibility.