FACTS:
You are counsel for Nicholson Construction Company
(Nicholson), a corporation specializing in underground construction
and excavation support work.
As general contractor, Nicholson bid on, and was awarded, a
contract with the Massachusetts Department of Public Works
(DPW).[1] This contract, part of the Central Artery/Third Harbor
Tunnel Project (CA/T Project), requires investigating the
performance of tiedown anchors and anchor piles before construction
of certain Central Artery tunnel segments begins.
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The contract's bid documents did not require, and Nicholson
did not provide to DPW, the names of any individual Nicholson
employees who might help perform the contract. The contract did
require Nicholson to submit to DPW for its approval, after the
contract award, the names and "detailed experience records" of at
least two supervisory personnel with sufficient experience, and of
an "authorized person" with authority to act for Nicholson.
Nicholson maintains a permanent staff of over 200 employees, of
whom more than one-third are experienced supervisory personnel.
After the contract award, Nicholson did submit several names and
"records" to DPW at various times. DPW either routinely approved
these submissions or took no action (which Nicholson took to be
approval). To Nicholson's knowledge, no one at DPW knew any of the
personnel whose names Nicholson submitted.
Nicholson wishes to perform work as a subcontractor on one or
more CA/T contracts over the next year.
QUESTIONS:
1. Is Nicholson or any of its employees a "state employee"
under G.L. c. 268A?
2. If neither Nicholson nor any of its employees is a "state
employee," do the second and third sentences of G.L. c. 268A, s.
1(q) apply to any of them?
ANSWERS:
1. No.
2. No.
DISCUSSION:
1. Is Nicholson or any of its employees a "state employee"?
For the conflict law to apply here at all (except for the
possible interpretation presented by your second question and
discussed in part 2), Nicholson or one or more of its employees
must be a "state employee," defined by G.L. c. 268A, s. 1(q) as:
a person performing services for or holding an office,
position, employment, or membership in a state agency, whether
by election, appointment, contract of hire or engagement,
whether serving with or without compensation, on a full,
regular, part-time, intermittent or consultant basis,
including members of the general court and executive council.
No construction contractor nor any of their personnel shall be
deemed to be a state employee or special state employee under
the provisions of paragraph (o) or this paragraph as a result
of participation in the engineering and environmental analysis
for major construction projects either as a consultant or part
of a consultant group for the commonwealth. Such contractor or
personnel may be awarded construction contracts by the
commonwealth and may continue with outstanding construction
contracts with the commonwealth during the period of such
participation; provided, that no such contractor or personnel
shall directly or indirectly bid on or be awarded a contract
for any construction project if they have participated in the
engineering or environmental analysis thereof.
This question can be answered simply by considering the first
sentence of this definition. As to Nicholson itself, "[t]he
Commission has long recognized that a . . . contract between a
[state or municipal government entity] and a corporation will not
render the corporation a '[government] employee.'" EC-COI-89-6. See
EC-COI-84-5; 83-89. The Commission has followed the Attorney
General's previous view that "the provisions of the conflict of
interest statute are primarily directed at the activities of
individuals ...." AG Conflict Opinion Nos. 852 (1978), 756 (1977).
Therefore, Nicholson itself is not a "state employee."
When a corporation contracts with a state agency, the
corporation's employees will also not be considered "state
employees," unless the agency "specifically targets a certain
individual within the corporate structure to perform the services
...." EC-COI-89-6. For this purpose, the Commission will examine
the following five factors:
(a) are the individual's services expressly or impliedly
contracted for?
(b) how large is the entity? how many employees? what types of
services are provided by it?
(c) to what degree is specialized knowledge or expertise
required in the performance of the services?
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(d) to what extent does the individual personally perform the
services under the contract, and to what extent does he or she
control and direct the terms of the contract or the services
provided thereunder?
(e) has the person performed similar services in the past to
the public entity?
EC-COI-89-35; 89-6, 87-19; 87-8.
Here, DPW's contract did not specify or otherwise "target" any
particular Nicholson employee. DPW's routine approval of (or
non-action on) Nicholson's submissions after the contract award
supports the view that it had no interest in any particular
individual's services. Nicholson is a sizable corporation employing
many different supervisory employees capable of performing the
contract. Although some expertise might well be required, no
particular Nicholson employee could be expected in any substantial
way to control or direct the contract services, as shown by
occasional changes in supervisory roles, all acquiesced in by DPW.
Finally, there is no evidence that DPW knew or cared that any
Nicholson employee had performed similar services for it in the
past.
We conclude that neither Nicholson nor any of its employees is
a "state employee" as defined by s. 1(q).
2. Do the second and third sentences of s. 1(q) apply to
Nicholson or any of its employees, although none of them is a
"state employee"?
The second and third sentences of the definition of "State
employee" in G.L. c. 268A, s. 1(q) exempt from the first sentence's
principal definition certain construction contractors and their
personnel who participate as consultants in engineering and
environmental analysis of major state construction projects. The
third sentence's proviso then requires that "no such contractor or
personnel" may bid on or be awarded a construction contract for the
same project for which they participated in that analysis. Although
the Commission has considered the scope of this exemption once
before, see EC-COI-83-165 (exhibit design was not "engineering and
environmental analysis"), we have never had occasion to consider
the scope of application of the third sentence's proviso.
Your question asks, in essence, whether this proviso should be
read merely as a limitation on the exemption contained in the
remainder of these two sentences (thus limiting its reach to
persons, not including Nicholson or its employees, who would
otherwise be "state employees" under the first sentence), or
whether instead it was meant to bar all contractors (presumably
including corporations like Nicholson) and their personnel from
bidding on state construction contracts if they participated as
consultants in the engineering and environmental analysis of the
same construction project. The statute's plain language, structure,
and legislative history cause us to reject this sweeping second
interpretation in favor of the narrower first construction.
We are conscious that a statute is to be interpreted
"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." O'Brien v. Director of DES, 393 Mass. 482, 487-88
(1984) (quotations and citations omitted). Here, the plain language
of these second and third sentences is designed to address the
concerns of construction contractors and their personnel, who might
under some circumstances be considered "state employees" under the
first sentence because of their prior consultant role in
engineering and environmental analysis for major state construction
projects. Such "state employees" might be barred from participating
in other state construction contracts either by G.L. c. 268A, s. 5
(as former state employees) or by s. 7 (as present state
employees). The second and third sentences allow such persons, who
would otherwise be "state employees" under the first sentence, to
participate in state construction contracts for projects other than
those in which they participated in the engineering or
environmental analysis.
The word "such," modifying "contractor or personnel" in the
proviso, may be thought ambiguous: it could refer to all
contractors or personnel who participate in the engineering and
environmental analysis mentioned in the second sentence (thus
supporting the broader second interpretation). Alternatively, it
could refer only to contractors or personnel who participated in
that analysis and who would be "state employees" under the first
sentence but for this exemption (thus supporting the narrower first
construction). This ambiguity is resolved by noticing that the same
phrase, "[s]uch contractors or
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personnel," appears at the beginning of the third sentence. This
phrase's use there, allowing award of state construction contracts
and continuation of existing state construction contracts, makes
sense only if the narrower meaning is intended, since the concern
motivating this exemption applied only to "state employees" under
the original first sentence. The same phrase must be given the same
meaning when used later in this sentence. See Beeler v. Downey, 387
Mass. 609, 619 (1982).
The structure and location of the third sentence's proviso are
noteworthy. First, the Legislature placed it in the conflict law's
definition of "state employee," certainly an odd place to insert a
substantive restriction on contractors who are, by the broader
interpretation's hypothesis, not state employees otherwise subject
to G.L. c. 268A; a more likely location if the broader
interpretation were intended would be in another statute concerning
construction contract bidding procedures, such as G.L. c. 30, c.
30B or c. 149. Second, it is phrased as a proviso that explicitly
modifies the preceding exemption, a sentence structure that is
sensible only if the narrower construction is intended. See
EC-COI-87-36; 82-106 (both concluding that provisos limiting
"selectman's exemption" from G.L. c. 268A, s. 20 did not apply to
selectmen who are special municipal employees and thus not in need
of this exemption).
The legislative history of this statute is also helpful. When
G.L. c. 268A was originally enacted, by St. 1962, c. 779, s. 1, the
definition of "state employee" consisted solely of the present
first sentence. The present second and third sentences were added
by St. 1977, c. 245, entitled "An Act authorizing certain
construction contractors to participate in state projects."[2] The
Act resulted from a substantially identical bill, House No. 2843
(1977), sponsored by then-Representative William Q. MacLean, Jr.,
and originally entitled "An Act to expedite the employment of
construction tradesmen on major construction projects." This
original bill contained the following preamble explaining its
purpose:
Whereas, the provisions of Chapter 268A restrict the
participation of construction contractors as consultants or
members of a consulting group in the engineering and
environmental analysis for major construction projects, and
Whereas, the best interest of the Commonwealth require [sic]
such participation, and
Whereas, such participation can be permitted without
impairment of the legislative purpose in the enactment of
General Laws Chapter 268A.
The only written comment on the bill in the Governor's
legislative file was from the Executive Office of Administration
and Finance. After urging the Governor to sign the bill, it briefly
referred to the third sentence's proviso as a "necessary safeguard"
that was thought "satisfactory," an afterthought hardly describing
a sweeping new restriction on bidding by construction contractors.
This unusually clear and consistent legislative history
discloses no legislative purpose to impose further restrictions on
any construction contractors. Rather, the clear intent was to carve
out an exemption for certain contractors who had done engineering
and environmental analysis, but to avoid "impairment of the
legislative purpose" of G.L. c. 268A by limiting this exemption to
those whose analysis was not for the same project.
Our duty is to "give the statute a workable meaning." Graham
v. McGrail, 370 Mass. 133, 140 (1976). For the above reasons, we
conclude that the 1977 amendment, adding the second and third
sentences of s.1(q), was intended solely to create an exception
from the preexisting first sentence, thus tempering the conflict
law's application to construction contractor employees under the
specified circumstances. It follows that the second and third
sentences, and particularly the third sentence's proviso, cannot
apply to a person or entity (including Nicholson and each of its
employees) that is not a "state employee" as defined by the
first sentence.[3]
-----------------------------------
*Pursuant to G.L. c. 268B, s. 3(g), the requesting person has
consented to the publication of this opinion with identifying
information.
[1] As of April 8, 1992, the state DPW becomes known as the
state Department of Highways. St. 1991, c. 552.
[2] Courts have looked to an act's title for aid in
ascertaining legislative intent. See Hemman v. Harvard Community
Health Plan, Inc., 18 Mass. App. Ct. 70, 73 (1984).
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[3] Since by answering your first and second questions we have
concluded that G.L. c. 268A does not apply at all to Nicholson or
any of its employees, it is unnecessary to answer your remaining
questions.
Page 388
End Of Decision