A state employee who formerly reviewed and rendered preliminary approval of federal entitlement funds would not violate §5(a) if he becomes a city employee working on future grant proposals. The new proposals constitute different "particular matters" than those the employee formerly "participated in".
Section 5(a) precludes a state employee, who served as general counsel for an executive office overseeing several state departments, from working as an attorney for someone other than the Commonwealth in relation to any matter in which he "participated" as a state employee. Section 5(b) prohibits the former state employee from personally appearing before any Massachusetts court or agency in connection with matters which were within his "official responsibility" for two years prior to the termination of his employment.
A former Assistant District Attorney now engaged in private practice is not prohibited by §5(a) from accepting an appointment to prosecute a case pending in his former office, since he will be compensated by the Commonwealth itself.
Where a former state employee did not "participate" in any way in developing the specifications of a contract with a private company, or in the decision to award that contract, there is no violation of §5(a) if the individual now accepts employment with said company.
A former state employee may contract to draft regulations implementing a specific law despite his previous duty to review such regulations, since he receives compensation directly from the Commonwealth [§5(a)] and did not procure this contract while serving as a state employee [§6]
Section 5(a) precludes a former state employee from performing services as an attorney for city or private clients on those "particular matters" in which he participated in his former capacity. Section 5(b) would prohibit him from appearing before his state agency in connection with certain "particular matters" which were within his "official responsibility" during the last two years of his state employment. He may appear before his agency on cases arising after the termination of his state employment.
A former state employee is only precluded from working for a private company under contract with the employee's former agency if he "participated" in developing any of the specifications of the contract, in negotiating its terms, or in the decision to award the contract.
A former state employee may not be involved or personally appear before a state agency on "particular matters" relating to the implementation of a contract with a private company, where he "personally and substantially participated" in the negotiation of the terms of the contract.
May a former legal assistant in a County District Attorney's office assist a City regarding the same matters he/she participated in as a legal assistant for the County District Attorney's office?
A former member of the General Court may represent a client before the Industrial Accident Board in connection with a claim against the Commonwealth since he states that he had no involvement with the matter while a member of the General Court.
A lawyer/legislator may enter into an office sharing arrangement with other attorneys, one of whom is a legislative agent. Although such an arrangement could constitute something of substantial value, it would not, by itself, violate Section 3(b) unless it were entered into for or because of any official act performed or to be performed by the legislator. Members of a group who, by their conduct, give the appearance of being partners will be treated as such. In order to avoid having a partnership status imputed to this group, each member should use separate stationery and business cards and should not join names on law lists, telephone directories or other professional notices other than to list their names on the office door. If the member of the group who is a legislative agent is compensated for his lobbying activities in connection with special legislation, the legislator could not vote on such legislation if he were negotiating or had any arrangement with the lawyer/legislative agent regarding legal services to be performed for him or his clients. The legislator could not take advantage of the disclosure and certification provisions of section 6 since, as an elected official, he does not have an appointing authority. Compliance with the foregoing guidelines and with the laws, rules and regulations which govern the activities of public officials, legislative agents and attorneys will insure that the nature of this relationship is a matter of public record and will adequately protect the public against any violation of sections 23(e) and 23(f).
As stated in previous opinions, a state legislator may also serve as an uncompensated member of an agency's areas board (the "Board"). However, by virtue of his membership on the Board, the partners of his law firm are prohibited by Section 5(d) from representing a partnership clinic that contracts with the same board in any and all dealings between the clinic and the Board which relate to "particular matters" before the Board. It will not be sufficient for the legislator/Board member to merely withdraw from participation in the matters in question.
May a former employee of a state Commission appear before the Mass. Division of Hearing Offices to represent client who is aggrieved by an action of the Commission the employee was formerly employed by?
An employee of the general court who is contemplating leaving state service for a position in the private sector is generally advised of the restrictions imposed by the conflict law on former state employees. He is also informed that he may not act as legislative agent for his new employer before either branch of the general court for one year.
A state employee leaving a position at a state agency to work for a private contractor may be employed by the contractor subject to post-employment restrictions in G.L. c. 268A, § 5. The former employee may not receive compensation from or act on behalf of the contractor in connection with particular matters in which they participated as a state employee, such as audits, tests, or regulatory reviews they previously conducted. They may provide technical assistance, explain, or summarize applicable regulations but may not challenge the validity of regulations they helped promulgate.
The conflict of interest law will not prohibit a state employee from purchasing a private institution when the state employee does not participate in or have official dealings with the institution in his current state position and the employee intends to resign from his state position after purchasing the institution. Pursuant to G.L. c. 268A, § 6, the state employee may not participate in any matters in which the institution has a financial interest. Pursuant to § 23, the state employee may not use his state position to benefit the institution. Additionally, he will need to comply with post-employment restrictions under G.L. c. 268A, § 5, after he leaves state service.
A former state agency chair may be paid by the Commonwealth to serve as a hearing officer in an ongoing adjudicatory proceeding in which he participated while in state service, because G.L. c. 268A, § 5 prohibits compensation only from private parties in such matters. Upon serving as a consultant, the former official becomes a “special state employee” and must comply with the conflict of interest law restrictions that apply to current state employees.
Section 5(a) does not prohibit a state employee who participated in a matter as a state employee and resigns from the state agency to work for another state agency to then work on the same matter.
A lawyer in private practice who shares office space with a state employee who is also a lawyer in private practice must take steps to eliminate any conclusion that they are partners in order to comply with §5(d) of the conflict of interest law in dealings with local licensing authorities in matters where the state employee participated or which was subject to the state employee’s official responsibility.
What issues arise for a former state employee of State Agency ABC who intends to provide consulting services to Agency DEF?
A former state agency attorney is permitted to represent children in custody petitions filed with the court by his former agency without violating § 5 of the conflict of interest law because the petitions were not pending in the state agency during the period of time the employee was employed with the agency. As to a custody petition that was pending while he was employed with the agency, it was neither a matter in which he participated nor a matter under his official responsibility.
May a former state employee receive compensation as a consultant in connection with the former state employee's agency?
A law firm associate who is appointed a special assistant attorney general to represent the Commonwealth in matters pending before a state agency is subject to § 4 of the conflict of interest law and may not represent law firm clients before the state agency. Since the associate is not a partner in the law firm, § 5(d) will not prohibit the firm’s partners from representing clients before the state agency.
A former state employee who participated in an application by a private company that was denied would violate § 5 by leaving the state agency to work for the private company to work on a re-submission of the application subject to review under revised regulations because the applications involved the same matters. The former employee would also be subject to the provisions of § 23(c).
Section 5 will not prohibit a former member of a state hazardous waste site safety council who participated in awarding a technical assistance grant to a town local assessment committee from providing legal services to the committee in connection with negotiations with a site developer.
The former Associate General Counsel of the State Ethics Commission is advised that §§ 5 and 23(c) of the conflict of interest law will apply to his participating as an employee of the United States Attorney’s Office in prosecuting a matter based, in part, on a Commission referral to the state Attorney General which was then forwarded to the United States Attorney.
A law firm associate is a special state employee as a consultant to the Special Master and a Trial Court Judge in connection with a court case involving a municipality and several state agencies over Boston Harbor pollution. He is subject to §§ 4 and 23 of the conflict of interest law. Because he is not a partner of the firm, the law firm partners are not subject to § 5 of the conflict of interest law.
- EC-COI-84-146
A full-time employee of the Governor's Office may leave to become a lobbyist, and may, within one-year of leaving that employment, lobby the General Court, the budget bureau and the Office of Human Services without violating G.L. c. 268A, § 5(e). The employee will be subject to the provisions of § 23 for the duration of employment in the Governor's Office. A former state employee may not work for a private firm in connection with matters in which he previously participated as a state employee. Examples of prohibited matters include permit determinations and proceedings challenging the validity of regulations which he drafted.
The conflict of interest statute does not permit government agencies from promulgating their own employee regulations which address the subject of conflict of interest. The Commission has encouraged other government agencies to promulgate their own codes of conduct to expand the standards of §23 and to clarify the agencies' expectations of their employees with respect to the applicability of G.L. c. 268A. Therefore, an agency may prohibit a former employee from receiving a grant even if the employee's acceptance would be permissible under § 5.
Following appointment to a part-time state board of registration, an attorney will be subject to the limitations of §4 applicable to special state employees. The attorney would be prohibited from representing private clients in matters before the board but would be free to represent clients before other boards of registration.
A full-time state employee who wishes to start a business is subject to several restrictions under the conflict of interest law. He may neither perform work on referrals from a state agency, nor act as the agent of his business in seeking contracts with state agencies. He may have a financial interest in a state contract only if he qualifies for an exemption under §7. Once he leaves his state position, he may not work privately on matters which previously came before him in his state position.
A member of the Massachusetts Historical Commission (MHC) who also owns a development corporation which will have matters pending before the MHC must comply with § 4. Neither he nor his partner may appear on behalf of the corporation or receive compensation in relation to the matter. To avoid violating § 4 or § 5, the corporation should hire for the MHC proceedings an agent or attorney with no ownership interest in the company.
A partner in a law firm may be appointed to the board of directors of the Government Land Bank, but he may not receive compensation accruing from his partners' services in connection with matters before the Land Bank, and his partners may not act as agents or attorneys for non-state parties in connection with matters before the Land Bank.
The assistant director for a division of a state agency may accept a position with a company to work under a contract with that agency (upon resigning from the agency) because he has not substantially participated in the contract while employed by that agency.
The current director of legislative and business affairs with the Executive Office of ABC will be subject to a limited one-year lobbying ban upon his leaving ABC to serve as a legislative agent for a private entity. The restrictions will apply to his appearances before ABC and agencies within ABC but will not apply to appearances before the legislature and secretariats other than ABC.
A former director of a state agency may provide consultant services to private companies as long as she did not participate in the same particular matters as a state employee. She is prohibited from appearing before any court or agency of the commonwealth for a one year period on matters that were under her official responsibility
An independent special state commission comprised of legislative and gubernatorial appointees is a state agency for the purposes of G.L c. 268A, and a consultant who left the special commission is a former state employee. The lobbying ban of § 5(c) will therefore prohibit his acting as legislative agent before the special commission for one year following his termination of employment. Because the special commission is a governmental body independent of the General Court, § 5(e) will not restrict his acting as legislative agent before the General Court.
A state employee at the Secretary of State's office is considering a real estate venture that may seek limited partners which is overseen by the Secretary of State's office. Permissible but restrictions apply under sections 4, 5(d), 6 and 23.
Members of the state Designer Selection Board are special state employees required to comply with §§ 4, 5, 6, 7 and 23 of the conflict of interest law.
A former state agency division director is not prohibited under §5 of the conflict of interest law from representing someone in connection with that sale of corporate stock from one founder to another where the former state employee signed the escrow agreement to register the stock on behalf of the division because the sale of the stock is not in connection with the escrow agreement.
A former state employee who telephones his former agency in an attempt to adjust a case pending in that agency would be considered "appearing personally" before that agency within the meaning of section 5(b).
A former state attorney may not represent private clients in connection with negotiations, discussions and other communication about the continued promulgation of draft regulations where he had participated in the initial draft in his official capacity.
A former member of a state board may represent his partnership in connection with an application before the board inasmuch as the former member neither participated in nor had official responsibility for the application while serving on the board.
A former undersecretary of a state agency is a former state employee who is subject to section 5(a) and (b) and section 23(c) with respect to future employment opportunities. The former state employee's brief discussion advising a city official of a need for a plan to develop a pier was not personal and substantial participating in the city's decision to develop a master plan for the harbor. The constraints of section 5(a) will not apply to partners in the law firm as long as he is "of counsel" status in that firm.
A former state employee is prohibited by section 5(a) from accepting a position with a consulting firm because he would be compensated in connection with the same grant in which he participated as a state employee. As a state employee, the individual's participation in the grant was personal and substantial even though he did not make the final decision to award the grant.
A state employee who is an attorney and also serves as a city conservation commissioner is subject to several provisions of 268A. Section 4 allows the state employee to hold a municipal position provided that he does not vote or act on any matter within the purview of his state agency or over which he has official responsibility. As a municipal employee under section 17 he may not represent private clients: (1) before other municipal agencies or (2) on appeals of municipal decisions to state agencies. Section 19 prohibits him from participating as a commissioner in any matter which could directly or indirectly affect the financial interest of his law firm. Once he leaves his state job, he would be subject to sections 5 and 23 as a former state employee. His law firm would not be subject to section 18(d/c) and section 5(d/c) since he would be an associate attorney in the firm.
The former secretary of the executive office of environmental affairs must comply with the restrictions of 5 and 23(c) in his new "of counsel" position with a law firm. In particular, he must refrain from representing a client in any matter in which he previously participated as a secretary. Because, as secretary, he had official responsibility for all matters within the executive office, 5(b) requires that he refrain from personally appearing before any state court or state agency in connection with those matters.
A former member of a committee which supervises investments for certain state agencies is prohibited by section 5(b) from appearing for one year before any state agency in connection with an investment in an annuity contract over which he had official responsibility as a committee member, even if he had not previously participated in that matter.
A former state employee who previously participated in the preparation and presentation of a report on certain pending legislation may, under section 5, assist and represent a prospective developer in connection with a redraft of the bill to be reconsidered in a subsequent legislative session.
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.
A former state employee may represent private individuals in a guardianship proceeding. Prior participation as a state employee in a "care and protection" proceeding constitutes a distinct particular matter. A current guardianship proceeding is not in connection with the prior lawsuit, because the guardianship matter involves different parties, different facts, and a different controversy in a different court, even though both matters concern the same children.
For purposes of section 5, the Commonwealth has a direct and substantial interest in all Workers' Compensation proceedings, even those matters involving private litigants, because of the Commonwealth's general interest in enforcing the Workers' Compensation law. Consequently, the restrictions of sections 5(a) and 5(b) are applicable to a former employee of the Department of Industrial Accidents (DIA) who wishes to represent private parties who have appeared as litigants before the DIA. But see EC-COI-97-2, modifying this opinion.
Under section 5, a former state employee could accept referral of a patient whom she treated while she was a state employee as she did not participate in the discharge plan which occurred after she left state service.
Under some circumstances, a former state employee who later contracts with a different state agency is covered by the restrictions of both section 4 and section 5.
An elected County Retirement Board member may remain a Board member and continue private employment with an investment firm if he complies with the provisions of sections 11, 12, 13 and 23.
A former state employee cannot receive private compensation in connection with particular matters in which he participated as a state employee. Where a company provides services that the former state employee is prohibited from providing himself, mere investment income is not "compensation," unless the individual is active in the business. Such "compensation" (i.e. the proceeds from the prohibited sources) must be segregated from any pool of money which is used to pay the individual his salary or to determine his share of profits. Finally, fellow officers and shareholders of a corporation are not "partners" of the former state employee for purposes of section 5(c), unless there is reason to disregard the corporate entity.
A former state employee may not receive compensation from a company in connection with a contract awarded to the company by the former employee's agency.
- EC-COI-94-6
A former state employee who becomes a federal employee is restricted under §5(a) from participating as a federal employee in particular matters in which he participated as a state employee. A former state employee is prohibited from receiving compensation or acting as an agent or attorney for a company selling or marketing its services under a state-wide blanket contract because the employee was part of the procurement team that helped to select the company.
General Law c. 268A, section 5(e) does not prohibit a former state employee from engaging in paid public advocacy intended to influence public opinion on a matter before the person's former governmental body provided that he does not do so on the grounds of that body. G.L. c. 268A, section 5(e) will, however, prohibit a former state employee from both directly lobbying his former governmental body and from engaging for compensation in lobbying that body through strategic legislative agent activities "behind the scenes." Additionally, before engaging in permissible forms of public advocacy, a former state employee must ensure he complies with the requirements of G.L. c. 268A, sections 5(a), 5(b) and 23(c).
Two former state employees seek guidance under G.L. c. 268A, § 5(e), in light of recent amendments to that statute, and to the definitions of "legislative agent" and "executive agent" set forth in G.L. c. 3, § 39 and referenced in § 5(e). One former state employee was employed by the General Court, and the other by the Executive Branch; both currently work for entities engaged in lobbying. Both former employees wish to conform their conduct to the law as amended by Chapter 28 of the Acts of 2009.
Formal legal opinions by the State Ethics Commission about how the conflict of interest law applies to former state and county employees