| Date: | 08/13/1985 |
|---|---|
| Organization: | State Ethics Commission |
A former director of a state agency may provide consultant services to private companies as long as she did not participate in the same particular matters as a state employee. She is prohibited from appearing before any court or agency of the commonwealth for a one year period on matters that were under her official responsibility
You were employed by state agency ABC until July, 1985 as its director. In your capacity, you were responsible for directing ABC's research activities. You indicate that you not only supervised staff in these policy issues but also participated in their formulation. You also provided expert testimony on related matters in administrative and judicial litigation.
Starting in September you will be an associate professor at a private university. You expect to have the opportunity to consult in the area of your expertise.
What restrictions does G.L. c. 268A place on your providing consultant services as a former state employee?
You are subject to the limitations discussed below.[1]
During the period in which you served as director, you were a state employee for the purposes of G.L. c. 268A and, upon leaving that position, you became a former state employee. As such, you are prohibited by § 5(a) of chapter 268A from acting as agent or attorney for, or receiving compensation from, anyone other than the commonwealth 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 you "participated" as a state employee. Particular matter is defined in § 1(k) as "any judicial or other proceeding. application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding... " Under G.L. c. 268A, participate means to "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." G.L c. 268A, § 1(j).
Applying this provision to your duties and responsibilities at ABC you would, for example, be prohibited from working for a private company that had matters pending before your agency in which you made decisions or determinations affecting that company's proposal. The Commission has held that a former state employee is prohibited from working on an appeal or subsequent review of a determination they made while a state employee. See EC-COI-84-31.[5] In this regard you would be prohibited from consulting to a private firm on a subsequent challenge to the validity of regulations which you participated in drafting. Although a regulation in and of itself is not considered a particular matter, the process by which it is adopted and the determination that was initially made as to its validity is considered a particular matter. See EC-COI-81-34, 82-78. Thus, if you advised the commissioner as to the validity of proposed regulations, you would be prohibited from assisting a private party in challenging those regulations.
You should also be aware that § 5(b) imposes additional restrictions on your consulting activities on behalf of private parties. Under § 5(b), you are prohibited until August 2, 1986 from appearing personally before any court or agency of the commonwealth in connection with any particular matter which was under your official responsibility during the last two years of your state employment. This section goes beyond those matters in which you participated and turns on your authority in connection with any matter. Accordingly, § 5(b) will prohibit your appearances before ABC, and any other state agency, the General Court, or a state court regarding matters which were under your official responsibility dating back to two years before your resignation.
As a former state employee, you are also subject to two provisions of the standards of conduct under G.L. c. 268A, § 23.[3] These provisions prohibit a former state employee from accepting employment or engaging in any business or professional activity which will require her to disclose confidential information which she has gained by reason of her official position or authority and from, in fact, improperly disclosing such materials or using such information to further her personal interests. Thus, any confidential information you acquired as director, must not be disclosed to any private companies to which you provide consultant services.
End Of Decision
