Opinion  EC-COI-85-55

Date:	07/16/1985
Organization:	State Ethics Commission

A full-time state employee who changes her employment status to contractor with the same agency would remain a state employee because she would continue to perform services for the state agency. She may submit a bid to her agency to provide services under a contract provided that in her state capacity she does not participate in her agency's decision to contract out such services.

Facts

You are employed on a full-time basis as a director for state agency ABC. In that capacity, you administer and supervise the provision of certain services to individuals. ABC is considering gradually terminating the employment of its in-house staff, including your position, and contracting out for the provision of these services. You state that you have not had input or discussions with ABC officials involving the advisability of engaging the services of independent contractors, or in the guidelines or specifications for such contractors.

You are interested in submitting a bid for a service contract in the event that ABC decides to contract out for services. If selected, you would leave your position as a director.

Question

Does G.L c. 268A permit you to submit a bid to ABC and work under contract with ABC to provide services?

Answer

Yes, although you will be subject to certain restrictions described below.

Discussion

In your current capacity as a ABC director, you are a state employee for the purposes of G.L. c. 268A. Should you leave your current position to become a contractor to ABC, you would retain your state employee status because the definition of state employee includes "persons performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement". G.L. c. 268A, § 1(q). Nothing in G.L. c. 268A inherently prohibits a state employee from changing employment status from a full-time employee to consultant with the same state agency. See, EC-COI-83-41. However, you will be subject to certain restrictions both during and after the application process.

1.Section 6

This section prohibits you from participating^[1] as an ABC director in any particular matter^[2] in which you have a financial interest. Inasmuch as you plan to submit a bid to ABC to provide services, you have a financial interest in ABC's decision to contract out as well as in ABC's appointment of contractors. As long as you continue to avoid having any input or discussion with ABC officials involving these particular matters, you will be in compliance with § 6.^[3]

2. Section 23^[4]

This section prohibits you from using your official position to secure unwarranted privileges or exemptions for yourself or others, and, by your conduct, from giving reasonable basis for the impression that you are unduly affected by the position of any person. G.L. c. 268A, § 23(¶ 2)(2, 3). Because of your insider status at ABC, you are in a position to influence the contracting out decision, and you must therefore take steps to assure that you will not be using your position to secure an unwarranted privilege for yourself. You should continue to refrain from discussing the contracting out decision or the process with ABC officials. Further, you should be aware that the provisions of § 23 apply to your current supervisory role over those individuals who may be competing with you for the service contracts.^[5]

3. Section 4(c)

This section prohibits a state employee from acting as the agent of someone other than the commonwealth in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. This section will apply if you are planning to submit to ABC a contract bid on behalf of a partnership of other individuals or a corporation. On the other hand, if you make your submission solely on your own behalf, you will not violate § 4(c) because you will not be acting as the agent for someone else. See, EC-COI-85-18, 85-12.

End Of Decision

^[1] G.L. 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."

^[2] G.L. 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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties. finances and property."

^[3] The second paragraph of § 6 contains an exemption procedure which would permit your participation in such matters if your appointing official determines in writing that your financial interest is not so substantial as to be deemed likely to affect the integrity of the services which ABC expects from you. A copy of this determination must be forwarded to the Commission.

^[4] On July 9, 1985, the Supreme Judicial Court ruled that the commission does not possess the jurisdiction to enforce G.L. c. 268A. § 23. The discussion contained above is based on prior Commission rulings and is intended to provide guidance to you.

^[5] The standards of conduct described above apply equally to ABC official who will be making the contracting out and hiring decisions. They should be made aware that they may not grant to you unwarranted privileges or exemptions in the application or selection process. For example, they may not waive for you the principle eligibility requirements for bidding on a service consultant contract.