Opinion EC-COI-88-12

Date: 05/25/1988
Organization: State Ethics Commission

A former employee of a state agency who has recently become a state official in a second state agency must comply with the safeguards of section 23, including public disclosure, prior to his participation as a state official in matters in which his former state agency is now involved.

Table of Contents


You recently resigned your position as Executive Director of the
Massachusetts Energy Facilities Siting Council (Siting Council) in
the Executive Office of Energy Resources (EOER) in order to accept
a position as Commissioner of the Department of Public Utilities
(DPU). When you were Executive Director of the Siting Council,
there were, among other things, three cases pending with that
agency. Your past involvement in these matters as well as your
potential, prospective involvement as DPU Commissioner is
summarized below.

1. DPU Docket No. 86-36

This matter is a generic rulemaking investigation Concerning the
electric utility industry. You did not participate[1] in or have
official responsibility[2] for this matter as Executive Director
of the Siting Council. The Secretary of Energy Resources did.
Although you generally serve as the Secretary's advisor on many
matters, you did not serve as the advisor on this matter. You
propose to participate as DPU Commissioner in DPU Docket No. 86-

2. DPU Docket No. 85-178

This matter is a generic rulemaking investigation concerning the
gas utility industry. As Executive Director of the Siting Council
you gave oral testimony and written comment to the DPU in 1986. An
interim order has been issued, but the case is still open to
resolve certain remaining issues. You propose to participate as
DPU Commissioner in the remaining phases of DPU Docket No. 85-178.

3. DPU Docket No. 87-169

This case is a two-phase investigation of matters pertaining to
the state's electric utility companies. You have participated in
the first phase of the matter in your position as Executive
Director of the Siting Council. You testified as an expert witness
in 1987 and 1988, and advised the EOER Secretary and the Attorney
General on strategy and policy concerning the matter. You also
participated in drafting the briefs submitted by the EOER Secretary
and the Attorney General. You do not propose to act as DPU
Commissioner on Phase One because an order from DPU on that phase
is imminent. You do propose to participate as DPU Commissioner in
the remaining phase of the investigation.


Does your participation as DPU Commissioner in the matters described above comply with the conflict of interest law?




Page 201

The Commission has addressed a very similar question raised by
a former employee of EOER who subsequently became a DPU
Commissioner. In EC-COI-82-31, the Commission concluded that

As an employee of the EOER and as Commissioner at the DPU you
were and are a state employee, G.L. c. 268A, s.1 (q),and are
subject to the conflict of interest law. Section 5(a) of that
statute prohibits a former state employee from receiving
compensation from or acting as agent or attorney for anyone
other than the Commonwealth in relation to a particular matter
in which the state or a state agency is a party or has a
direct and substantial interest and in which he participated
while a state employee. The provisions of s.5(a), however, do
not apply to a state employee who resigns to accept employment
with a second state agency. EC-COI-81-60...

This is also true for s.5(b) restricting activities of
the former state employee acting as agency or attorney
for a non-state party in relation to matters within his
official responsibility. EC-COI-82-31 at 3, fn.3.

We conclude that this same reasoning applies with equal force
to your case. The "former state employee" prohibitions articulated
in the conflict of interest law do not apply to one who resigns one
state job in order to accept another. Our opinion in EC-COI-82-31
was affirmed by the Supreme Judicial Court in Attorney General v.
Department of Public Utilities and another, 390 Mass. 208, 215 (1983)
(where the court concluded that, notwithstanding the participation
of Commissioner Selgrade in a matter while he was an EOER employee,
his further participation in the matter as a DPU Commissioner did
not taint the proceedings "with unfairness justifying the reversal
of the department s decision"). Accordingly, your proposed
participation as a DPU Commissioner in DPU Docket Nos. 87-169, 85-
178 and 83-36 is not prohibited by s.5 of the conflict of interest

The "standards of conduct" contained in s.23 of the conflict law
apply in addition to all other sections of the law. See, EC-COI-
82-31 (discussing s.23(e) of the conflict law).These provisions
were amended in 1986 so that the current parallel section to
s.23(e) is s.23(b)(3). The amended s.23 is more flexible than its
predecessor; now, in the event of the appearance of a conflict, a
public official is not disqualified from participating but rather
is required to make a public disclosure. Section 23(b) (3) provides
that, absent a public disclosure, a state employee may not act so
as to give the reasonable impression that the employee may be
improperly influenced, that one can unduly enjoy the employee's
favor or that he or she is likely to act as a result of position
or undue influence. G.L. c. 268A, s.23(b) (3).[3]

Based on our review of the information which you have supplied
concerning the three DPU matters at issue, it appears that a public
(i.e., in writing and filed with your appointing authority)
disclosure would be appropriate before you participate in DPU
Docket No. 87-169. This is so because of your active participation
in the first phase on the matter (drafting briefs and taking a
significant advocacy role). We conclude that the same disclosure
is required before you participate in DPU Docket No. 85-178 where
an interim order has terminated the phase of the rulemaking
investigation in which you had prior limited but official
participation. Even your limited Connection with this case could
give the appearance of a conflict which would be remedied by
disclosure. Because you had no participation or official
responsibility for any phase of DPU Docket No. 86-36, there is no
requirement of a public disclosure.

You should also be aware that s.23(b) (2) of the conflict law
prohibits the knowing or attempted use of your official position
to secure for yourself or others unwarranted privileges or
exemptions which are of substantial value and are not properly
available to similarly situated individuals. Accordingly, you may
not use you DPU position to secure an unwarranted privilege, for
example, for an agency with which you have had a prior association.
If a public official makes a recommendation or decision which is
not based on objective standards, but is rather based entirely on
a prior relationship, this may constitute securing an unwarranted
privilege for another in violation of s.23 (b) (2).

We must emphasize that, as we did in EC-COI-82-31, the question
of the application of common law principles of bias has not been
reviewed in this opinion. We are limited to addressing matters
strictly within our jurisdiction, i.e., Interpreting and applying
G.L. c. 268A and 268B.

* Pursuant to G.L. c. 268B, s.3(g), the requesting person has
consented to the publication of this opinion with identifying

[1] "Participate," 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,

[2] "Official responsibility." 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, s.1(i).

[3] No current officer or employee of a state, county or municipal
agency shall knowingly. or with reason to know:
(3) act in a manner which would cause a reasonable person. having
knowledge of the relevant circumstances, to conclude that any person
can improperly influence or unduly enjoy his favor in the
performance of his official duties, or that he is likely to act or
fail to act as a result of kinship, rank, position or undue
influence of any party or person. It shall be unreasonable to so
conclude if such officer or employee has disclosed in writing to
his appointing authority or, if no appointing authority exists,
discloses in a manner which is public in nature, the facts which
would otherwise lead to such a conclusion.


End Of Decision

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