December 18, 1978

All identifying information has been deleted from this opinion as required by Chapter 268B, section 3(g)

FACTS:

You are an employee of a state agency, and have requested an opinion whether your acceptance of a position in a city department would violate the state conflict of interest law, G.L. c. 268A. Based upon the information that you have supplied, we conclude that you may accept the position without violating the conflict of interest law.

You are employed as a Regional Federal Funds Specialist in the agency. Thus, you are a state employee as defined in G.L. c. 268A, section 1(g). Your responsibilities include providing technical assistance to public and private organizations seeking type A funds pursuant to 2 federal statutes; reviewing for programmatic and technical compliance all proposals for type A funds from the cities and towns in the Region; processing amendments to type A projects in the region; and performing related duties within the agency. As an employee of the agency your work has been confined to reviewing proposals for type A funds under the cited statutory programs, and has not involved any participation in reviewing applications for type B funds.

In conducting programmatic and technical reviews of proposals for type A funds you have reviewed past proposals submitted by the city, among other cities. The reviews you have conducted of all such proposals have been at the regional office level. Once regional office approval has been granted, each proposal forwarded to a Bureau located within the agency's central office. The Bureau re-examines the proposal for conformity with federal standards, renders the final approval on all proposals, and is not bound in any way by your review.

You have been offered a position with a city department as a Federal Project Manager. The position will be funded out of "administrative overhead" pooled from several grants made pursuant to these 2 federal statutes. Your primary responsibility in the new position would be to seek grants of state and federal type B funds for services to be offered by the Department. In addition, you would prepare statistical reports related to funding, monitor all federal projects in the Department, design procedures related to federal grants, and work with state and federal officials to assure that future type A grants comply with pertinent state and federal requirements.

If you were to leave your current position with the agency, you would be a former state employee. General Laws, c. 268A, section 5(a), prohibits a former state employee from acting as agent for, or receiving compensation directly or indirectly from anyone other than the Commonwealth or a state agency, in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest and in which he participated as a state employee . . . .

A federal grant proposal submitted by a city or town constitutes a "particular matter" [2] in which the agency has a direct and substantial interest. See, e.g., Conf. Op. Atty. Gen. No. 799. The question is whether as Federal Project Manager for the city you would be required to work on any such particular matters in which you previously participated as an employee of the agency.

Considering first type A grants, the preliminary review and approval which you performed as a state employee of type A grant proposals constitute "participation" as that term is defined in G.L. c. 268A, section 1(j). Nevertheless, it does not appear that you would violate section 5(a) if you accepted a position with the city as Federal Project Manager because you have indicated that you would not review, monitor or work in any way on any type A grant projects that you previously reviewed or considered while employed by the agency. See Conf. Op. Atty. Gen. No. 845. Type A grant proposals are submitted annually by the city and other municipalities to the agency, and each annual proposal constitutes a separate particular matter. Thus work which you might do on future grant proposals to be submitted by the city to the agency would not relate to "particular matter[s]" in which you participated as a state employee. See Conf. Op. Atty. Gen. Nos. 845, 790.

As to type B grant proposals, you have stated that you have had no involvement with them while working for the agency. Thus by definition any work you might perform as an employee of the city on such grants would not be in relation to a particular matter in which you "participated" as a state employee. General Laws c. 268A, section 5(a), therefore, would not apply. No other provision of the conflict statute appears relevant.

Very truly yours,

James Vorenberg

Chairman

State Ethics Commission



[2] General Laws c. 268A, section 1(k) defines particular matter as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim . . . ."

End of Opinion