Opinion  EC-COI-90-6

Date:	05/09/1990
Organization:	State Ethics Commission

A former state supervisor is subject to the post-employment restrictions of sections 5 and 23 with respect to contracts and other matters in which he previously participated or had official responsibility for as a supervisor.

Facts

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You recently retired from your position a Supervisor for the Department of Education (DOE). You are now interested in consulting to school districts and wish to know how G.L. c 268A applies to your proposed consultation to local school systems with which you may have had prior official dealings as DOE Supervisor.

Question

Does G.L. c. 268A permit you to consult with local school systems?

Answer

 Yes, subject to the conditions set forth below.

Discussion

Following your retirement from DOE, you became a former state employee and are subject to the restrictions contained in s.s.5 and 23(c) of G.L. c. 268A.

 1. Section 5(a)

This section prohibits you from consulting to or otherwise receiving compensation from any non-state party such as a school system if your consultation is in connection with any agreement or grant, or other particular matter[1] in which you previously participated as a DOE employee. For example, if you previously reviewed an application which, following final approval, became effect after your retirement, you are prohibited by s.5(a) from consulting to a school district in connection with the same grant. EC-COI-88-14. On the other hand, s.5(a) does not prohibit your consulting on successor applications since the Ethics Commission regards each annual application or grant as a separate particular matter. EC-COI-79-34. Consequently, you will need to determine whether any grant on which are invited to consult was one in which you previously participated as a DOE employee. In light of the one- year duration of those grants, the s.5(a) restrictions should not permanently limit your proposed consultations.

 2. Section 5(b)

Under s.5(b), you are subject to a supplementary one-year bar on your personally appearing before state agencies in connection with matters in which you did not previously participate but which were nonetheless under your "official responsibility"[2] as DOE Supervisor. For example, if a city had filed an application for FY1991 while you were that city's Supervisor, you would be subject to a one-year bar on your appearing before a state agency in connection with that FY1991 grant, even if you had not participated in the application process prior to your retirement.

 3. Section 23(c)

This section, which is largely self-explanatory prohibits a state employee from disclosing or otherwise misusing any confidential information which he acquired as a state employee. As applied to you, you must refrain from disclosing to your school district clients any confidential information which you acquired at DOE, such as internal DOE standards for evaluating school system compliance with grants.

[1] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, 

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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.

[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.