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Former Municipal Employees- Conflict of Interest Law Primer

The information provided is educational in nature and should not be considered legal advice. Persons with questions about a specific situation should contact the Ethics Commission for free confidential advice.

Massachusetts General Law c. 268A, the state's conflict of interest law, which governs the conduct of public officials, continues to apply to municipal employees, and in some cases their partners, even after the employees leave public service. In general, § 18 of the conflict law is designed to prevent municipal employees from making official judgments with an eye toward their personal future interests, or from profiting by their participation in particular decisions or controversies after they leave municipal service. Furthermore, the law keeps former employees from misusing their past friendships and associations within government to derive an unfair advantage for themselves or others. The law does not prohibit former employees from using expertise gained while employed by the municipality.

In certain instances the law also prohibits former employees from referring to their partners matters in which they themselves are prohibited from participating.

Restriction from Participation in Particular Matters

Section 18(a) prohibits former municipal employees from acting as agent or attorney for, or directly or indirectly receiving compensation from, anyone other than their city, town or municipal agency in connection with any particular matter that is of concern to the municipality and in which they participated as municipal employees. Thus, if you participated in a matter, you can never become involved in that same matter after you leave municipal service for anyone other than the city or town.

Whether former municipal employees are affected by this section is determined by whether they participated, personally and substantially, as municipal employees in a particular matter such as a recommendation, decision, application or contract. Thus, if your current employment involves matters in connection with the past particular matters in which you participated as a municipal employee, it is activity perpetually prohibited under this section.

For example, a former municipal employee who made recommendations on and decisions pertaining to regulations enacted in her municipal agency is prohibited from working for a private organization on a challenge to the validity of those regulations. A former school department employee may not work for a contractor under the same contract in which he participated as a municipal employee. A former municipal attorney is prohibited from representing a private client in new litigation where the parties, facts, and controversy are identical to a lawsuit in which she participated as a municipal attorney.

One Year Restriction on Appearance Involving Matters over which Former Employees had Official Responsibility

Section 18(b) focuses on matters over which former municipal employees exercised authority. Section 18(b) prohibits former municipal employees, for one year, from personally appearing before any municipal agency as an agent or attorney for anyone other than the city or town in connection with a particular matter that concerns the municipality if the matter was under their official responsibility within two years prior to their termination from municipal service. In other words, this section operates prospectively as a one year ban on former municipal employees' personal appearances in connection with matters under their authority for the two years prior to their leaving municipal service.

Under this section, municipal employees' official responsibilities would include particular matters handled by a subordinate, as well as matters in which they abstained from participation. A personal appearance includes not only the physical appearance of former municipal employees before their former boards or agencies, but also includes telephone calls, correspondence or other communications, such as email, to their former municipal agencies made on behalf of any private client.

For example, an assistant town manager negotiated a three-year contract in July 2001. The town manager supervising the assistant town manager left her municipal position in September 2002 to take a job with the private firm that was awarded the contract. She is prohibited through September 2003 from making phone calls, writing or appearing on behalf of the firm in connection with the contract, because it was under her official responsibility within two years of her leaving public service. This restriction would also apply to other matters under her responsibility from September 2000 through September 2002.

Restrictions to the Partners of Former Municipal Employees

Section 18(c) extends certain prohibitions of § 18 to the partners of former municipal employees. This section prohibits a partner of a former municipal employee, for one year after the employee has left her municipal position, from knowingly engaging in any activity the former municipal employee is prohibited from doing under § 18(a). In other words, if a former municipal employee is prohibited from engaging in certain activity under § 18(a), then his partner is similarly prohibited for one year from engaging in the same activity.

The term "partner" for the purposes of § 18 has been defined by the Commission to include a member of a group of lawyers who by their conduct give the appearance of being partners. The term "partner" is not restricted to those who enter into formal partnership agreements: it may also apply to individuals who join formally or informally in a common business venture. In determining whether a partnership arrangement exists, the Commission looks to the substance of the individuals' relationship rather than the term used to describe that arrangement.

For example, a former town counsel joins a private law firm as a partner. The law firm partners may not, for one year, represent any private clients in connection with a lawsuit which the former town counsel attorney litigated as a municipal employee.

Note that Section 23(c) prohibits former municipal employees from accepting employment or engaging in professional activity that will require them to disclose confidential information that they learned in their municipal jobs; and improperly disclosing such non-public information to further their personal interests.

There may be exceptions which would apply to particular situations. Please contact the Ethics Commission's Legal Division at (617) 371-9500.