June 16, 1992

FACTS:

You were the public health agent for the Town. In that
capacity, you participated in negotiating and implementing a
contract ("the first contract") between the Town and ABC, Inc.
(ABC) for disposal of waste at the Town's municipal landfill from
ABC's site. That contract gives ABC the exclusive right to operate
a portion of the municipal landfill (the ABC landfill) until the
contract expires, and allows ABC to dump a specified volume of
waste per year from the ABC site in the ABC landfill, in return for
a specified fee per volume paid to the Town (and other
consideration).

Because ABC did not dump as much waste as expected, the Town
did not receive as much revenue in fees as it had hoped. Therefore,
the Town recently issued a request for proposals (RFP) to dump
additional waste. DEF, Inc. (DEF), of which ABC is a wholly owned
subsidiary, was the only bidder for this "second contract, n a
result the Town expected because the first contract required ABC's
consent for any other dumping in the ABC landfill. The Town and DEF
are now negotiating the details of the second contract. According
to the RFP's specifications, the second contract will not by its
terms amend the first contract, but will in addition allow DEF to
dump waste from sites other than ABC's in the same ABC landfill, in
return for a higher fee per volume. The second contract's RFP
contains numerous references to the first contract, including a
limitation on the non-ABC waste to be dumped under the second
contract, which will depend in part on the amount of ABC waste
dumped under the first contract. The second contract, which will
expire after the first contract, will also include an elaborate
provision allowing DEF the option of assuming exclusive operation
of the ABC landfill after the first contract expires.

Meanwhile, you left your Town position and became an employee
of DEF. You now[1] wish to participate in negotiating and
implementing the second contract on behalf of DEF, including
continued contacts with Town officials


QUESTION:


May you receive compensation from DEF for your work in
negotiating and implementing the second contract, and may you
contact Town officials on DEF's behalf for this purpose?


ANSWER:


No.


DISCUSSION:


When you were the Town's public health agent, you were a
"municipal employee" for the purpose of the conflict of interest
law. G.L. c. 268A, 1(g). Therefore, you are now subject to G.L. c.
268A, 18(a),[2] which forever prohibits you from

knowingly act[ing] as agent or attorney for or receiv[ing]
compensation directly or indirectly from anyone other than the
same . . . town in connection with any particular matter in
which the . . . town is a party or has a direct and
substantial interest and in which [you] participated as a
municipal employee while so employed. . . .

Since it is clear that you participated as a municipal
employee in the first contract, a "particular matter"[3] to which
the Town is a party, the question presented is

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whether your negotiating and implementing the second contract for
DEF is "in connection with" the first contract. For the following
reasons, we conclude that it is.

In deciding whether a former public employee's present work
for private compensation is "in connection with" a particular
matter in which he participated while a public employee, the
Commission's analysis in previous opinions has varied.[4] We have
sometimes focused only on whether the former employee's present
work related to a "new" or "different" government particular
matter, without considering whether the work was also "in
connection with" the previous particular matter in which he
participated as a public employee. See, e.g., EC-COI-89-34; 85-74;
85-52; 83-80
. In other opinions, especially more recently, we have
engaged in an analysis of factors showing whether the employee's
proposed private work is closely enough connected to the matter in
which he participated to bar him from acting as agent or attorney
or receiving compensation. E.g., EC-COI-91-1. Without implying that
the result reached in any previous opinion was incorrect, we now
clarify that the latter analysis is required by the statutory
language.

We interpret the statute "according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be accomplished,
to the end that the purpose of its framers may be effectuated. n
O'Brien v. Director of DES, 393 Mass. 482, 487-88 (1984)
(quotations and citations omitted). See EC-COI-92-6. What we said
of the statutory purpose of G.L. c. 268A, 5, the cognate section
governing former state employees, also applies here to the
identical limitations s.18 establishes for former municipal
employees:

The undivided loyalty due from a [public] employee while
serving is deemed to continue with respect to some matters
after he leaves [public] service. Moreover, [the statute]
precludes a [public] employee from making official judgments
with an eye, wittingly or unwittingly, consciously or
subconsciously, toward his own personal future interest.
Finally, the law ensures that former employees do not use
their past friendships and associations within government or
use confidential information obtained while serving the
government to derive unfair advantage for themselves or
others.

In re Wharton, 1984 SEC 182, 185.

As this language suggests, and as we have previously
recognized, 5, 12, and 18 strike a balance between these concerns
about former employees' disloyalty to the government and the
Legislature's competing desire not to foreclose entirely the former
public employee's private employment in the very area of his
greatest expertise. EC-COI-81-34 (quoting Jordan, Ethical Issues
Arising from Present and Past Government Service, in ABA,
Professional Responsibility: A Guide for Attorneys 196 [1978]). The
legislative history of the federal statute on which these sections
were modeled[5] makes clear that subsection (a) strikes this
balance by "protect[ing] the government where it needs realistic
protection," i.e., in connection with "matters with which [former
employees] had contact while in the government -- matters wherein
they have true conflicts of interest. n Association of the Bar of
the City of New York, Special Committee on the Federal Conflict of
Interest Laws, Conflict of Interest and Federal Service,
228-29
(1960). See Perkins, The New Federal Conflict of Interest Law, 76
Harv. L. Rev. 1113, 1121, 1153-55 (1963). In short, the statutory
purpose is to bar the former employees, not from benefiting from
the general subject-matter expertise they acquired in government
service, but from selling to private interests their familiarity
with the facts of particular matters that are of continuing concern
to their former government employer. See Braucher, Conflict of
Interest in Massachusetts, in Perspectives of Law, Essays for
Austin Wakeman Scott
20 (1964) (emphasizing the former employee's
"access to confidential information which he might use against his
former" employer); see also G.L. c. 268A, s.23(c).

In an effort to be faithful to these purposes, we look to past
opinions, identifying the factors we have previously applied to
decide whether a former public employee's present work for private
compensation (the "private work") is "in connection with" a
particular matter in which he formerly participated while a public
employee (the "government matter"). Most often, we have inquired
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." EC-COI-91-1 (not barred
because different litigation raising different issues). See
EC-COI-89-7 (later stage of same environmental review process
involves

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same controversy); 87-34 (barring challenge to, but not
interpretation of, regulations employee assisted in promulgating);
84-31 (resubmission of same application presents same controversy);
81-28 (barred from new litigation involving same controversy,
parties, and challenge to same statute's validity); 80-108 (barred
from different but "integrally related" litigation based on
different individuals' complaints, but same claim, same issues,
same businesses, and same time period). By contrast, we have
allowed the private work if the issues have changed substantially
from the former employee's government participation. EC-COI-89-34
n.5 (substantially different legislative proposal); 85-74
(different buildings using changed plans); 83-80 (new alternatives,
studied independently, for construction project).

In addition, we have examined the effect the proposed private
work would have on the government particular matter. See
EC-COI-91-1
(not barred where new litigation did not seek to
challenge or modify existing decree); 86-23 (not barred where work
did not involve challenge or modification to existing escrow
agreement). See also EC-COI-87-34; 85-11; 81-34 (all holding that
a former public employee who participated in drafting a regulation
may later engage in private work to apply or interpret the
regulation, but not to challenge its validity). This factor seeks
to guard against potential above of past factual knowledge,
confidential information, and personal associations in the context
of the particular matter. It also expresses the legislative
concern, which we recognized in EC-COI-81-34, about a former
employee's "in essence seeking to tear down that which he had
helped to build [or] taking advantage of a weakness that he
discovered while in government service" (quoting M H. Gordon & Son,
Inc. v. ABCC
, Suffolk Superior Court Nos. 38250, 37348, and Jordan,
supra
, at 196).

It remains to apply this analysis to your facts. First, your
proposed work negotiating and implementing the second contract for
DEF would be "integrally related" to the first contract. The amount
of waste DEF will be allowed to dump will depend, by the explicit
terms of the second contract's RFP, on the amount its subsidiary,
ABC, dumps under the first contract. In fact, DEF's very ability to
dump waste under the second contract depended (by virtue of the
first contract's terms) on ABC's express written consent, consent
ABC was willing to extend only to DEF.[6] Ultimately, DEF will
retain the option of actually operating the ABC landfill when ABC's
(first) contract expires. It is clear that the two contracts
involve, for practical purposes, the same parties and many of the
same issues. See EC-COI-91-1.

The second factor discussed above is also significant here.
The second contract will in effect modify the first contract in an
essential respect: it will remove the first contract's limitation
to ABC's site as the sole source of the waste to be dumped in the
municipal landfill. Instead, the second contract will allow waste
from the other DEF sites to be dumped as well, thereby
substantially increasing the actual amount of waste dumped by ABC-
DEF over time, and in addition will significantly increase the fee
paid for dumping the additional waste. Indeed, this appears to be
both the Town's and DEF's principal purpose in negotiating the
second contract."[7]

It is true that the second contract will not, in so many
words, amend the first contract. As you point out, this appears to
result from a provision of the state Uniform Procurement Act, G.L.
c. 30B, 13(1), which prohibits amending an existing contract unless
"the unit prices remain the same or less." The fact that c. 30B
required a new contract, rather than an amendment to the existing
contract, does not control our analysis under G.L. c. 268A. As we
said at the outset, the question for us is not whether your private
work would relate to a "new" or "different" particular matter.
Rather, the only question, by the very language of s.18(a), is
whether your proposed private work would be "in connection with"
the first contract, the government particular matter in which you
concededly did participate while a public employee.

For the reasons stated above, we conclude that the answer to
this question must be yes -- the factors that we have identified,
as guides to the proper application of "in connection with," have
clearly been satisfied. Therefore, G.L. c. 268A, s.18(a) prohibits
you from receiving compensation from DEF, and from acting as its
agent, in negotiating and implementing the second contract.

-----------------------------------
[1] This opinion addresses only your future conduct. See G.L.
c. 268B, 3(g).

[2] Because you left town employment more than one year ago,
18(b), which concerns matters under your "official responsibility"
in which you did not actually participate, no longer applies to
you.

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[3] "Particular matter" is defined to include, among other
things, "any . . . contract. . . ." G.L. c. 268A, 1(k).

[4] In this discussion, we examine our precedents
construing G.L. c. 268A, 5, 12, and 18, the statutes governing former state,
county, and municipal employees respectively, because these
provisions are substantially identical.

[5] Special Commission on Code of Ethics, Final Report, H.
3650, at 8 (1962). See, e.g., Everett Town Taxi, Inc. v. Board of
Aldermen of Everett
, 366 Mass. 534, 536-37 (1974).

[6] The extent of the integral relationship between the two
contracts is perhaps most graphically revealed by the fact that the
DEF Regional Vice President who signed DEF's response to the second
contract RFP, also signed (as ABC Vice President) ABC's attached
consent allowing DEF to dump additional waste in the ABC landfill,
as required by the first contract.

[7] Obviously, your negotiation and implementation of the
second contract would require you to deal repeatedly, on many of
the same factual issues, with the very municipal government
colleagues with whom you participated as a public employee in
negotiating the first contract.

End Of Decision