Opinion  EC-COI-89-11

Date:	05/10/1989
Organization:	State Ethics Commission

A state employee who wishes to resign and accept a consultant contract with the same state agency must comply with the conditions 

Facts

You are an administrative employee for state agency ABC. In your current capacity, you are responsible for the administration of certain claims, including the determination of acceptance or rejection of claims, payment of claims, monitoring of claims and 

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representing ABC in state administrative hearings on contested claims. 

With respect to recent claims, ABC has contracted, pursuant to a competitive bid process, with an outside law firm to administer these claims. The firm's current two-year contract will expire in 1989. You are interested in resigning and in entering into a contract with ABC to perform claim administration services for ABC under a successor contract to take effect later this year.

Question

Does G. L. c. 268A permit you to apply for and perform services for ABC under a claims administration services contract?

Answer

Yes, subject to certain conditions described below.

Discussion

As an ABC employee, you are considered a state employee for the purposes of G. L. c. 268A. Were you to resign and accept employment with ABC handling claims, you would retain your status as a state employee. See, G. L. c. 268A, s.1(q). While nothing in G.L. c. 268A outright prohibits your changing your status with a state agency from full-time employee to consultant, the law places certain restrictions on your official activities.

1. Section 6

This section prohibits you from participating[1] as an ABC employee in any particular matter[2] in which you have a foreseeable financial interest. Your application to ABC to perform services for ABC would be a particular matter in which you have a financial interest. Following your submission of such an application, you may not participate as an ABC employee in any discussions or decisions relating to your application. For example, since you would customarily be part of a chain-of-command in the ABC interview and selection process, you must file a written disclosure of your interest to both your ABC appointing official and the Commission, and you must abstain from any participation in the selection process unless otherwise directed by your appointing authority.[3] 

The prohibition of s. 6 applies to all matters in which you have a financial interest. Currently, you participate as an ABC employee in claims matters which are handled by an outside law firm pursuant to an existing contract. To the extent that the firm's performance under the contract will presumably be an important consideration in the ABC's decision as to whether to renew the firm's contract, your status as a likely competitor gives you a financial interest in determinations with respect to the firm's current contract. We therefore advise you to notify promptly your appointing official of your intentions and seek a determination under G. L. c. 268A s. 6. Your appointing official has a number of options, including granting you written permission to continue participating in determinations relating to the firm's current contract. Absent receipt of such written permission, your continued participation in matters relating to the firm's current contract will place you in violation of s. 6.

2. Section 4(c)

Under this section, a state employee may not act as the agent or attorney for any non-state party in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. Your application to the ABC for the claims contract is a particular matter in which a state agency is a party. As long as you are filing and pursuing the application on your own behalf as a solo practitioner, you will not be regarded as the agent or attorney of a non-state party for the purposes of s.4. See, {Commission Advisory No. 13}, Agency. On the other hand, s. 4 would prohibit your representing a law partnership, or other association comprised of you and other attorneys in connection with the application.[4]

3. Section 23

This section applies to both you and ABC officials. Under s. 23(b)(2), a state employee may not use or attempt to use his official position to secure for himself or others unwarranted privileges of substantial value and which are not properly available similarly situated individuals. Where the ABC has previously awarded the workers compensation contract based on a competitive bid process, it might very well be an unwarranted privilege for you if the ABC were to disregard that process for your benefit. Similarly, your seeking such an exemption might also place you in violation of s. 23(b)(2). By retaining the competitive process, the ABC will also avoid creating the appearance of undue favoritism towards you. See, G. L. c. 268A, s. 23(b)(3).

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[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, s.1(j). 

[2] "Particular matter," 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. G. L. c. 268A, s.1(k).

 [3] Your s.6 disclosure has been received and is a public document. G. L. c. 268A, s. 24. 

[4] It is unclear whether, following your resignation, you will have partners in your law practice. If so, your partners will be subject to certain restrictions in their private practice. See, G. L. c. 268A, s. 5(c), (d); we are available to render further advice construing these paragraphs if either you or your partners wish. 

End Of Decision