Opinion  EC-COI-85-74

Date:	09/11/1985
Organization:	State Ethics Commission

A former municipal employee who previously worked for a municipality on the first phase of a reconstruction project may now consult for a company over the reconstruction of other buildings, because the proposed consultation would involve a new design and construction bid for a different set of buildings. The employee would be working on new particular matters in which she did not previously participate as a municipal employee.

Facts

You were employed full-time by the ABC Housing Authority (ABC) from July 1979 to December 1983. During that time, you worked as a design specialist for the XYZ housing project. The ABC had contracted with the Associates to provide the design services. As a design specialist you provided design review of the Associate's work for the first phase of the XYZ project. The first phase consisted of the rehabilitation of twenty-five of the existing fifty buildings. You state that the project was divided into two phases because there was a limited amount of money available at that time. The completion of the remainder of the twenty-five buildings was not contemplated when the Associates did the first phase. It was not until this year that money became available to begin the second phase of rehabilitation.

Since 1983 you have been employed part-time at the Associate's which has recently signed a contract with the ABC for the planning, design and constriction supervision for the second phase of reconstruction at XYZ project. The second phase required that a new construction bid and design contract be submitted for the remaining buildings.

Question

Does G.L. c. 268A permit you to consult with the Associates on the second phase of construction of XYZ project?

Answer

Yes.

Discussion

1. Section 18(a)

Upon leaving municipal employment, you became a former municipal employee for the purposes of the conflict of interest law. G.L. c. 268A, § 1 et seq. The applicable provision to your situation is § 18. Section 18(a) permanently prohibits a former municipal employee from acting as agent for, or receiving compensation from, anyone other than the same city in connection with any particular matter^[1] in which the city is a party or has a direct and substantial interest and in which she participated^[2] as a municipal employee while so employed.

The current contract which the Associate has with the ABC constitutes a particular matter. Based on the information you have provided, the Commission concludes that the current contract with ABC is a different particular matter from the first contract in which you participated as an ABC employee. While previously employed by the ABC from 1979 through 1983, you worked on the first phase of reconstruction. The first phase included the rebuilding of a specified number of buildings. The second phase of the housing project involves a different particular matter because a new design bid and construction bid have been submitted for a different set of buildings. There will be a separate contract for this second phase. In addition, the plans for the second phase have been altered and do not reflect the same plans you worked on during the first phase. Therefore, because the second phase is a different particular matter you would not be prohibited by § 18(a) from consulting for the Associates.^[3]

2. Section 18(b)

Section 18(b) establishes an independent limitation on your post-employment appearances before municipal agencies. This provision relates to those particular matters in which you did not personally participate but which were nonetheless under your "official responsibility"^[4] as an ABC consultant. Under §18(b) for a one-year period following the completion of your ABC services, you may not personally appear on behalf of the Associates before any municipal agency in connection with particular matters which were under your official responsibility during the previous two-year period. Included within the § 18(b) prohibition would be decisions or determinations made by other ABC employees, and which were under your official responsibility. Based on the facts you present, your duties involved decisions and recommendations on specific applications and contracts before the ABC rather than the authority to direct the actions of other individuals. Therefore, § 18(b) would not be applicable since you did not have official responsibility as an ABC consultant.^[5] 

 

End Of Decision

^[1] For the purposes of G.L. c. 268A, "particular matter" is defined as "any judicial or other proceeding. application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding...G.L. c. 268A, § 1(k).

^[2] For the purposes of G.L. c. 268A, "participate" is defined as "participate in agency action or in a particular matter personally and substantially as: state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise." G.L. c. 268A, § 1(j).

^[3] If the plan which was used fort the first phase had been merely resubmission of the original contract, the second Phase contract would be considered the same particular matter and your consulting work would be prohibited by § 15(a). See EC-COI-84-31.

^[4] For the purposes of G.L. c. 268A, "official responsibility" is defined as "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action," G.L. c. 268A, § 1(i).

^[5] Section 25 of G.L. c. 268A contains standards of conduct applicable to former public employees. You should be careful not to disclose confidential information which you gained by reason of your ABC employment to the Associates.