You are currently employed by an Executive Office of the state (ABC) as a program development specialist for a certain program (DEP). The DEP imposes program, established pursuant to a state law, requirements on companies in Massachusetts. Certain of these companies have designated a jointly-owned subsidiary, Sub, to carry out those functions. Sub has, in turn, contracted with Firm A (FA) to manage the program requirements of the law. Your current ABC responsibilities which are relevant to your advisory opinion request include reviewing the work of PC a private corporation under contract with FA; reviewing the test administered by FA; assembling and distributing to citizens a list of participating companies from whom Dep-related purchases can be made, and conducting a review of the entire DEF program with the goal of amending the regulations promulgated by ABC where appropriate.
You are considering leaving your position with ABC and working for FA You wish to know the extent to which the conflict of interest law, G.L. c. 268A, will limit your activities following commencement of employment with FA.
The Commission concludes that you may work for FA subject to the restrictions set forth below.
In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. You are a state employee within the meaning of G.L. c. 268A, s.1 (q) inasmuch as you are employed by ABC, a state agency. If you were to leave state employment you would, therefore, be subject to the provisions of G.L. a. 268A, s.5. In particular, you would be prohibited from receiving compensation or acting as agent for FA in connection with any particular matter [1] in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated [2] while employed as a state employee. G.L. a. 268A, s.5 (a). On the basis of its review of your current ABC responsibilities, the Commission advises you that your activities with FA will be restricted in the following areas:
1. With respect to your duties in reviewing the quality of PC's work, you state that you determine whether the work conducted by PC is sufficient and consistent with ABC regulations. Inasmuch as these determinations are particular matters within the meaning of G.L. a. 268A, s.1(k), you will, be prohibited from receiving compensation or representing FA in connection with any audits which you have previously reviewed while employed at ABC. However, you may provide technical assistance to FA by explaining and summarizing the contents of the ABC regulations related to the work as long as you do not challenge the validity of regulations which you assisted in promulgating. See, EC-COI-81-34; EC-COI-81-35.[3]
2. With respect to your review of the tests administered by FA you state that you determine whether the test satisfies the requirements established by ABC regulations. Since these determinations are also particular matters, you are, therefore, prohibited from receiving compensation or representing FA in connection with certification tests which you have previously reviewed at ABC. However, you may participate in training programs for new auditors at FA by explaining and summarizing the requirements of ABC and federal regulations, as long as you do not institute a challenge on behalf of FA to the ABC validity of any test regulations which you assisted in promulgating.
3. The Commission concludes that your duties in assembling and distributing lists of participating companies to citizens do not involve any particular matters under G.L. a. 268A, s.1(k). Although you state that you have no intention of utilizing these lists at FA, nothing in G..L. c. 268A, s.5 (a) prohibits you from doing so.
4. With respect to your participation in ABC's review of the DEP program for the purpose of redrafting amendments to the ABC regulations, the commission concludes that you may take actions at FA which are consistent with these regulations such as by explaining or summarizing them, but may not challenge their validity. You state that you anticipate working at FA on the implementation of a pilot program for work which will be based upon new ABC regulations. Your activities in this regard will be subject to the same restrictions related to ABC regulations as described previously.
In conclusion, the Commission advises you that you may leave your position at ABC and commence employment at FA subject to certain limitations [4] set forth above.
