You were an employee of a state agency (ABC) until 1978. You now work for XYZ, INC. a private firm, and ask whether the conflict of interest statute, General Laws chapter 268A, prohibits certain activities of your private employ.
In rendering this opinion, the Commission has been guided by, and will continue to follow for the near future, the interpretations and opinions of the Attorney General issued prior to November 1, 1978, the effective date of the Commission's jurisdiction over Chapter 268A matters.
Section 5(a) prohibits you from serving as agent for or receiving compensation 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 you participated as a state employee. § 5(b) prohibits you from appearing personally, within one year after your employment ceases, before any court or agency of the Commonwealth as agent or attorney for anyone other than the Commonwealth in connection with any such particular matter, if that matter was under your official responsibility at any time during the two-year period preceding termination of your state employment.
You ask whether you can negotiate, manage or work on contracts with towns or individuals to provide an item using as your foundation certain base items already produced by XYZ for ABC under a contract which you helped to draft. XYZ has fully completed the work contemplated by that contract and the resulting base items have been accepted by ABC. You state that while you were a state employee you participated in discussions regarding the need for supplying items like those prepared under the XYZ/ABC contract to Massachusetts town officials. After you left, ABC officials decided that XYZ's items should be made available to local officials. ABC then obtained an informal agreement from XYZ whereby that firm agreed to sell the items to official town boards or commissions upon request.
You are precluded from negotiating, managing, or otherwise working on contracts with towns or individuals which will involve use of these base items. While XYZ's contract with ABC to produce those items was a "particular matter" to which a state agency was a party and in which it had a direct and substantial interest, the items produced under that contract are not such "particular matters". Any work which you may perform in connection with a contract with a town or individual will relate to the base item, but will in no way relate to the fully completed contract between XYZ and ABC for
their production.
You state that there was no monetary or other consideration supporting XYZ's promise to sell the item to local officials. Since that informal agreement is not a contract, it is not a "particular matter" for purposes of § 5.
Therefore, you may be involved as an employee at XYZ with the sale of the item to local officials in accordance with XYZ agreement with ABC.
You also ask whether you can work at XYZ on a particular contract now being awarded to that firm by ABC. You participated as a ABC employee in preparing the Request for Proposals (RFPs) for this contract and XYZ submitted its proposal while you were still at ABC. However, you did not participate in the development of evaluation criteria with respect to this contract, in any review or evaluation of the proposals submitted, or in the negotiation, award or drafting of the contract. The Attorney General has previously decided that RFPs, the responses submitted thereto, and any resulting contract are integrally related and must together be considered a "particular matter" under Chapter 268A. See Attorney General Conflict Opinion Nos. 788 and 706. The Attorney General has further resolved that participation in the development of an RFP is not, in and of itself, substantial "participation" as defined in § 1(j) in the award of the contract. See Attorney General Conflict Opinion No. 706. Adhering for now to this precedent, we advise you that you may work on this particular contract at XYZ despite your participation in the preparation of the RFPs. After you left, XYZ was asked to submit a proposal to ABC for a contract to prepare certain other items. You were obviously not involved as a state employee in preparing this RFP. Any proposal submitted by XYZ would relate to a new contract with ABC -- a new "particular matter" under § 5. Neither the RFP nor a contract awarded in response to it would constitute a matter in which you participated or which was under your official responsibility as a state employee. You may, therefore, work on and appear before DEM in connection with this proposal and any ensuing contract.
End Of Decision
