Massachusetts General Law c. 268A, the state's conflict of interest law, which governs the conduct of public officials, continues to apply to state employees, and in some cases their partners, even after the employees leave public service. In general, § 5 of the conflict law is designed to ensure undivided loyalty from former state employees. Further, the law is intended to prevent state 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 state service. In addition, 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 general expertise gained while employed by the state. In certain instances the law also prohibits the business partners of former employees from working on particular matters that the former employee is prohibited from handling.
Restrictions Regarding Particular Matters in which the Employee Participated
Section 5(a) prohibits former state employees from acting as agents or attorneys for, or directly or indirectly receiving compensation from, anyone other than the Commonwealth in connection with any particular matter that is of concern to the Commonwealth and in which they participated as state employees. Thus, if you participated in a matter, you can never become involved in that same matter after you leave state service for anyone other than the state.
For this section to affect former state employees, they must have participated personally and substantially, as state employees in a particular matter by approving disapproving, making a decision or recommendation, giving advice, investigating or otherwise. If you participated in the particular matter, your current private employment may not involve working on that same particular matter.
For example, a former state employee who made recommendations about regulations enacted in her state agency is prohibited from working for a private organization to challenge to the validity of those regulations. A former state employee may not represent a potential contractor who is bidding on the same contract the state employee helped to create. A former state 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 state attorney.
One Year Restriction on Appearance Involving Matters over which Former Employees had Official Responsibility
Section 5(b) focuses on matters over which former state employees could have exercised authority. Section 5(b) prohibits former state employees, for one year, from personally appearing before any state agency as an agent, or attorney, for anyone other than the state in connection with a particular matter that concerns the state if the matter was under their official responsibility within two years prior to their termination from state service. This section operates prospectively as a one year ban on former state employees' personal appearances in connection with matters under their authority for the two years prior to their leaving state service.
State employees' official responsibilities would include particular matters handled by a subordinate, as well as matters for which they had responsibility but from which they abstained. A personal appearance includes not only the making of physical appearances of former state employees before their former boards or agencies, but also includes making telephone calls, writing or other communications, such as email, to their former state agencies on behalf of any private client.
For example, the commissioner of a state agency had official responsibility for numerous particular matters pending in her agency when she left in November 2005. She is prohibited through November 2006 from making phone calls, writing or appearing on behalf of any private party in connection with any of those particular matters, because they were under her official responsibility within two years of her leaving public service.
Restrictions on the Partners of Former State Employees
Sections 5(c) extends certain prohibitions of § 5 to the partners of former state employees. This section prohibits a partner of a former state employee, for one year after the employee has left her state position, from knowingly engaging in any activity the former state employee is prohibited from doing under § 5(a). In other words, if a former state employee is prohibited from engaging in certain activity under § 5(a), then his partner is similarly prohibited for one year from engaging in the same activity.
The Commission has interpreted the term "partner," for the purposes of § 5, to include a member of a group of lawyers who conduct their law practice as a partnership. 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 general 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 general counsel litigated as a state employee.
[Note that Section 23(c) prohibits former state employees from accepting employment or engaging in professional activity that will require them to disclose confidential information that they learned in their state jobs; and improperly disclosing such non-public information to further their personal interests.]
Restrictions on Lobbying
Section 5(e) prohibits state employees, including former legislators, from acting as legislative agents for anyone other than the state before the governmental body with which the state employees were associated for one year after they leave that body.
There may be exceptions which would apply to particular situations. Please contact the Ethics Commission's Legal Division at (617) 371-9500.