Sections 5 (state employees), 12 (county employees) and 18 (municipal employees) place restrictions on public employees after they leave public service. In addition, these sections of the conflict of interest law place restrictions on the business partners of current and former public employees.
The Forever Ban
Sections 5(a), 12(a) and 18(a) prohibit a former public employee from ever receiving compensation from, or acting as agent or attorney for, anyone other than the state/county/municipality, in connection with any particular matter in which the state/county/municipality is a party or has a direct and substantial interest and in which the employee at any time previously participated as a public employee.
If a state/county/municipal employee at any time participated in a particular matter as a public employee, he may never receive compensation from a private employer or act as its agent in connection with the same matter after he leave his public position.
Under these sections, two basic questions must be asked by a former public employee concerning contemplated private work: (1) what did the employee participate in as a public employee? and (2) is the proposed private work in connection with any particular matter in which the employee participated in his public position?
Participation in a Particular Matter As a Public Employee
For purposes of section 5(a), 12(a) and 18(a), participation in a particular matter means personal and substantial participation. The Commission has stated that participating in discussions, approving recommendations or otherwise playing an active or dispositive role in the decision-making process will constitute participation under the conflict of interest law. See EC-COI-89-7; 88-14; 86-23. Not all participation, however, will be deemed personal and substantial. In those instances where a public employee is involved in ministerial or peripheral activity not directly affecting a particular matter, the conduct may not constitute substantial participation as defined in the statute. See, e.g., EC-COI-89-7 (subordinate's signature over agency head's typewritten name, without further involvement or oversight, not participation by agency head). However, a public employee not need to have been the final or primary decision-maker to be deemed to have participated in a matter. See EC-COI-87-27.
Proposed Private Work
The next issue under sections 5(a), 12(a) and 18(a) is whether compensation from a private party is in connection with particular matters in which the individual participated as a public employee, so that he will be forever precluded from receiving compensation from private parties in connection with those matters. See EC-COI-89-7 (former state employee's participation in environmental impact process precludes his private representation of applicant in latter stages of process as it involves same controversy); 87-27; 84-31. The Commission considers whether the private work is integrally related to the government matter because they involve the same parties, the same litigation, the same issues or the same controversy, and the effect of the proposed private work on the government particular matter. See EC-COI-92-17; 91-1; 89-7; 84-31; 81-34; 80-108.
In comparison, if the proposed private activity is solely in connection with a matter which arose after the former employee left public service or is independent from a matter in which the individual participated as a public employee, it will not be precluded. See EC-COI-91-1 (litigation different particular matter raising different issues); 92-14 (referral not in connection with prior recommendations) . In particular, in the area of special legislation, the Commission has stated that a piece of special legislation which is not enacted in a given year, but is refiled the next year, will be considered a new and separate particular matter from the previous year's filing. EC-COI-89-34; 85-52.
The One-Year Ban
Sections 5(b), 12(b) and 18(b) prohibit a former public employee from within one year after leaving public service, acting as an agent or attorney for anyone other than his public employer, before any state/county/municipal agency or state/county/municipal court in connection with any particular matter in which the state/county/municipality is a party or has a direct and substantial interest, for which the public employee had official responsibility within the two years before he left state/county/municipal government.
Partners of Former Public Employees
Sections 5(c), 12(c) and 18(c) place certain restrictions on partners of former public employees. A partner of a former state/county/municipal employee may not, for a period of one year after the public employee leaves office, represent a client in any activity in which the former public employee is prohibited from representing the client because he had previously participated in the matter as a state/county/municipal employee.
The Commission has construed the word partner broadly to include a person who joins with another, formally or informally, in a business venture . . .and [has] found a partnership arrangement where a group of individuals has given the public appearance of a partnership, for example, by linking their names on a letterhead and answering their telephone using the firm name, whether or not they in fact shared profits. The Commission has suggested that in order to prevent having a partnership status imputed . . . you must scrupulously avoid creating a public image that you are partners.
However, in EC-COI-93-24, the Commission was asked specifically whether members of a law firm organized as a professional corporation were partners for purposes of section 5(d). After reviewing the law firm organization, the Commission concluded that members of a professional corporation are not partners.
Acting as a Legislative Agent
Section 5(e) prohibits a former state employee or elected official from acting as a legislative agent for anyone other than the Commonwealth or a state agency before the governmental body with which he has been associated for one year after leaving that body.
Confidential Information & Former Public Employees
Section 23(c) prohibits a current or former public employee from accepting other employment or engaging in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority and from improperly disclosing such confidential materials or using such information to further his private interests. See EC-COI-83-154; 84-9.
The enactment of general legislation by the general court is expressly excluded from the definition of particular matter. The Commission has found that, by implication, special legislation is included in the definition of particular matter. See EC-COI-89-8. According to the Commission, [t]he feature which distinguishes special from general legislation is the particularity of the scope and purposes of the acts provisions. EC-COI-89-8. General legislation is permanent in nature, amends the general laws, and establishes rules which are uniformly applicable to all individuals or organizations similarly situated. EC-COI-89-8; 85-69. On the other hand, special legislation is legislation which is temporary, does not amend the general laws, or which creates an exception or special rule that does not apply to other similarly situated individuals or organizations. EC-COI-90-17.
For example, section 5 will not prohibit a former state employee from representing a client in connection with a piece of general legislation that he was involved in drafting while a state employee because the representation would not be in connection with a particular matter.