May 12, 1998


FACTS:


You are an attorney in private practice. Until November 13,
1997, you were a City Councilor.

On November 11, 1997, you were approached by a business
association that requested your services as an attorney to
represent the association before the Board of Health in relation to
a solid waste transfer station and recycling facility (jointly
designated "Facility") site proceeding before the Board of Health
("Board").[1] The association is comprised of businesses who are
abutters to the proposed Facility. After consulting with the
Legal Division of the Ethics Commission you learned that you could
not represent this association before a City board while you
remained a City Councilor. Following this telephone conversation,
you resigned from the City Council. You question whether, as a
former municipal employee, you may represent the association if the
Facility applicant appeals the Board siting decision to the
Superior Court.


Solid Waste Facility Site Process


Under G.L. c. 111, s. 150A, a solid waste transfer facility
may not be built in a municipality unless the local board of health
has held a public hearing and assigned a site in accordance with
the provisions of the statute. The determination by the local
board of health to assign a site for a facility must be based upon
site suitability criteria established by the state Department of
Environmental Protection ("DEP") in cooperation with the state
Department of Public Health ("DPH").

Any applicant wishing to establish a new facility on a site
not previously assigned must file a site assignment application
simultaneously with the local board of health, DEP and DPH. 310
CMR s. 16.08(1). Upon receipt of the application, DEP accepts
comments for 21 days prior to making a determination that the
application is complete. After notice of completeness, the
applicant is required to notify abutters to the site, including any
abutting towns' boards of health. Following notice to abutters,
within 60 days, DEP conducts a review of the application to
determine "whether the proposed site meets the criteria[2]
established under [the statute] for the protection of the public
health and safety and the environment." G.L. c. 111, s. 150A; 310
CMR s. 16.10. Also within 60 days, DPH reviews the application and
comments upon "any potential impact of a site on the public health
and safety." G.L. c. 150, s. 150A.

Following its review and determination, DEP sends its decision
and the DEP record to the local board of health. Until DEP
determines that the proposed site meets the statutory criteria, the
board of health may not hold hearings or make a determination
concerning the application. Id.

Within 30 days of receiving DEP's report, the local board of
health conducts a public hearing in which the parties have the
right to present evidence, cross-examine witnesses, make objections
and oral arguments. 310 CMR s. 16.20 (10). The hearing officer
may permit intervention in the proceedings, after a determination
that the persons seeking to intervene "are specifically and
substantively affected." 310 CMR s. 16.10(9). Any abutter or
group of abutters may register as a party. Further, any group of
ten or more citizens may register as a party to the public hearing
if damage to the environment is or might be at issue, but such
intervention by a ten citizen group is limited to the issue of
damage to the environment. The board of health also may hire
consultants to advise it by, among other things, determining
whether the data is complete and accurate, whether correct
analytical techniques were used, whether the data supports the
conclusions and what other data needs to be obtained. Board of
health consultants may examine records, visit the proposed site,
review the DEP report, and make comments relating to technical
issues concerning site suitability. 310 CMR s. 16.30(2)(c)(3).

Under G.L. c. 111, s. 150A, "a local board of health shall
assign a place requested by an applicant as a site for a new
facility. . . unless it makes a finding, based on the siting
criteria established by [the statute] that the siting thereof would
constitute a danger to the public health or safety or the
environment." Under the statute and 310 CMR s. 16.20(12), "the
board of health may include in any decision to grant a site
assignment such limitations with respect to the extent, character
and nature of the facility. . . as may be necessary to ensure that
the facility. . . will not present a threat to the public health,
safety or the environment." The board of health is required to put
its decision in writing and to include in the decision a statement
of reasons and findings of fact. G.L. c. 111, s. 150A; 310 CMR s.
16.20(10)(k)(4).

Any person aggrieved by the board of health decision may appeal
said decision to the superior court under the provisions of G.L. c.
30A, s. 14.[3]


Procedural Background of City Solid Waste Transfer Site
Proceeding


On April 12, 1996, a Company applied to DEP for a site
suitability assessment pursuant to G.L. c. 111, s. 150A, for a
1000-ton Facility to be located in the City (First Application).[4]
On September 20, 1996, the DEP issued a report denying suitability
because "the project proponent had not demonstrated that the local
roadways accessing the site could handle the volume of traffic to
be generated by the facility." Decision and Statement of Reasons,
Board of Health, March 4, 1998. Because DEP issued a suitability
denial, the Board of Health never reviewed the first application.
310 CMR s. 16.15(1) (if DEP issues report that site fails to meet
criteria, then site assignment process is complete and board of
health shall not hold public hearing).

Subsequently, on June 24, 1997, the Company again
simultaneously applied for a site assignment with the Board and
for a site suitability assessment with DEP for a 600-ton Facility
on the same site in the City as the First Application (Second
Application). On October 10, 1997, DEP issued a report finding
that the site application met the statutory criteria set forth in
G.L. c. 111, s. 150A.

The Board received the DEP decision on October 13, 1997. The
Board appointed a hearing officer and retained special counsel to
the Board. On November 17, 1997, the hearing officer commenced
hearings on the site application. You indicate that 24 groups were
allowed to intervene or register as parties in the proceeding. In
March 1998, the Board denied the site assignment, finding that the
application was materially incomplete and deficient, such that a
new application would be required to be filed for DEP's
consideration. The Board further found that the proposed
operations would be a danger to the public health, safety and the
environment. Finally, the Board considered a number of possible
conditions to impose on the site, but found that, if the site were
approved and all of the conditions implemented, the site would
continue to be a danger to the public health, safety and the
environment. The applicant may file an appeal of this Board
decision in the Superior Court.


The City Council's Involvement In Solid Waste Transfer
Facility Site Process


Under G.L. c. 111, s. 150A, DEP's regulations, and the
governance of the City, the City Council has no official
responsibility for any aspect of the Site Assignment decision. By
G.L. c. s. 11, s. 150A, the Board has the sole responsibility, on
the local level, for the site assignment decision. Approval of
the design of the facility is the responsibility of DEP. The City
Council did not petition to intervene in the Board
proceedings. Further, there are no zoning issues to come before
the City Council as the site currently is zoned for heavy industry.

Nevertheless, you state that, as a City Councilor you
participated in three votes relating to the siting of a Facility in
the City. First, you explain that, on January 16, 1996 you voted
to "request the City Manager to organize a task force to study the
site assignment process for locating transfer stations." You state
that the purpose of this vote was to require the City Manager and
his staff to educate themselves regarding the site assignment
process in general. A task force was formed. You did not
participate in the task force and you do not know if the task force
ever met. No task force report was submitted to the City Council.
This vote occurred prior to the filing of the First Application
with DEP.[5]

Second, you state that, on October 29, 1996 you voted to
"draft and send letters to our local [state house] delegation to
express the council's opposition to placing a transfer station on
any location within the city limits." At the time of this vote,
DEP had denied the First Application. The Board of Health had
never reviewed the First Application for a site assignment. No
site assignment application was pending at the time of this vote.
You characterize this vote as a desire by the City Council to
express, to the state delegation, the city's opposition to siting
any transfer station anywhere within the City limits. According to
you, the City Councilors felt that the City had borne a
disproportionate share of the environmental burden in the area. At
this meeting, you commented that the transfer station project could
still be viable and you predicted that the applicant would return
with a smaller facility plan. You urged the Council to review its
zoning bylaws and other ordinances.[6] You state that your comments
were based on your speculation that the applicant would try again
as the applicant was heavily invested in the project and you wanted
the City to be prepared.

Finally, you indicate that, on November 4, 1997, subsequent to
the submission of the Second Application, you voted to "transfer
$20,000 from the city manager's contingency fund to the
Inspectional Services Dept. to fund the possible use of expert
witnesses in the board of health hearings for the trash transfer
station." It is your understanding that the experts had been
retained to assist the Board, as permitted by DEP regulation 310
CMR s. 16.30(2)(c)(3), but that the City's Chief Financial Officer
and the City Manager recommended the motion in order to replenish
funds that had been expended out of the Law Department budget for
experts. The City Council is required to approve the transfer of
all funds over $50 from one line item to another. At this
meeting you made a second to the motion to transfer the funds and
voted on this transfer. You did not participate in any other
substantive discussion concerning the transfer of funds. The City
Council was not involved in any recommendation that the Board hire
experts to assist it or in approving what experts the Board would
hire. This November 4, 1997 vote was the only vote that the City
Council took, while you were a member, that related to the second
application for site assignment.


QUESTION:


As a former municipal employee, may you, consistent with G.L.
c. 268A, s. 18, represent a business association in a Superior
Court appeal of a City Board of Health decision?


ANSWER:


Yes.


DISCUSSION:


Recognizing that there are circumstances where a government
employee's loyalty to the government should continue even after he
leaves public service, the Legislature, in G.L. c. 268A, placed
certain restraints on the activities of government employees after
they leave the government. The restrictions on former municipal
employees are contained in G.L. c. 268A, s. s. 18. Section 18(a)
prohibits a former municipal employee from receiving compensation
from or acting as agent or attorney for anyone, other than the
City, in connection with a particular matter[7] in which the City
is a party or has a direct and substantial interest and in
which he previously participated as a City employee. Section 18(b)
prohibits a former municipal employee, within one year of leaving
municipal service, from appearing personally[8] on behalf of
anyone, other than the City, before any City agency, in connection
with any matter in which the City is a party or has a direct and substantial
interest and in which he had official responsibility[9] in the two
years prior to leaving municipal government.[10]

As the Commission has commented, in discussing G.L. c. 268A,
s. 5, the state counterpart to s. 18,

the undivided loyalty due from a state employee while serving is
deemed to continue with respect to some matters after he leaves
state service. . . 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; see also, EC-COI-92-17. In the
sections of the conflict of interest law concerning former
government employees, the Legislature sought to balance its concern
that a former government employee remain loyal to the government in
matters in which he was most involved with a desire not to entirely
prevent a former employee from using expertise gained in
government service in his private employment. EC-COI-92-17.

Not every action taken by a municipal employee while serving
the government will trigger the prohibitions of s. 18. To
implicate s. 18(a), the municipal employee must have personally
and substantially participated in a particular matter while in
government service. For purposes of our analysis, we consider the
relevant particular matter to be the Board proceeding because that
is the proceeding in connection with which you are receiving
compensation and acting as an attorney.[11] You acknowledge that
you voted, while a member of the City Council, in three instances where
the subject matter concerned a proposed Facility. At issue is
whether, by voting as a City Councilor, you personally and
substantially participated in the Board proceeding. For the
reasons discussed below, we conclude that you did not personally
and substantially participate in the Board proceeding.[12]

"Participation" is defined in G.L. c. 268A, s. 1(j) as
participate in agency action or in a particular matter personally
and substantially as a state, county or municipal employee,
through approval, disapproval, decision, recommendation, the
rendering of advice, investigation or otherwise.

The modifying terms "personally and substantially" are not
further defined in the statute. When construing statutory
language, we begin with the plain meaning of the statute. Int'l
Organization of Masters, etc. v. Woods Hole, Martha's Vineyard &
Nantucket Steamship Authority
, 292 Mass. 811, 813 (1984); O'Brien
v. Director of DES
, 393 Mass. 482, 487-88 (1984). The relevant
dictionary definition of "personally" from Webster's Third New
International Dictionary (unabridged) is "so as to be personal: in
a personal manner: as oneself: on or for one's own part." The term
"substantial" is defined as "existing as or in substance: material:
important, essential." Accord, Black's Law Dictionary (6th Ed.).

Additionally, in its precedent, the Commission has relied on
the interpretation of the federal Office of Government Ethics in
construing the term "personal and substantial", as the Legislature,
in promulgating c. 268A, sought guidance from and adopted portions
of the federal conflict of interest statute, including the phrase
"personal and substantial." See Report of the Special Commission
on Code of Ethics
, H. 3650, March 15, 1962, at 8 (as to format and
pattern of proposed conflict legislation used bill HR 8140 pending
in Congress; much of language of proposed conflict law taken and
adopted from federal bill); EC-COI-87-33 (expressly relying on
federal regulation). The federal counterpart to s. 18(a),
restricting former federal employees, is 18 USC s. 207(a),[13]
which also contains the term "participate personally and
substantially." By regulation, 5 C.F.R. s. 2637.201, the Office
of Government Ethics has further described and clarified the phrase
"personal and substantial participation" in a manner consistent
with the dictionary definition, stating:

To participate 'personally' means directly, and includes the
participation of a subordinate when actually directed by the former
government employee in the matter. 'Substantially,' means that the
employee's involvement must be of significance to the matter, or
form a basis for a reasonable appearance of such significance. It
requires more than official responsibility, knowledge, perfunctory
involvement, or involvement on an administrative or peripheral
issue. A finding of substantiality should be based not only on the
effort devoted to a matter, but on the importance of the effort.
(emphasis added).

For example, formulation of a particular matter, through
discussion, in preparation for a vote, as well as voting on the
matter is personal and substantial participation. Graham v.
McGrail
, 370 Mass. 133, 138 (1976); see, e.g., EC-COI-87-33. Under
our precedent, it is not necessary for one to be the final or
ultimate decision-maker to have participated personally and
substantially in the decision. If one discusses or makes
recommendations on the merits of a matter one will be deemed to
have participated personally and substantially in a matter. See
EC-COI-89-2
(discussion of the merits of a particular matter);
EC-COI-79-74 (participation found where employee discussed with
decision-makers factors that were central considerations of the
final evaluation of a contract even if employee did not participate
in selection, final review, approval and execution of contract); In
re Craven
, 1980 SEC 17, aff'd, Craven v. State Ethics Commission,
390 Mass 101, 202 (1983) (state representative participated by
using position to exert pressure on agency to award contract).
Moreover, one may participate in a particular matter by supervising
or overseeing others. See EC-COI-93-16; 87-27; 89-7.

In comparison, if a public employee merely provides
information to the decision-makers, without providing any
substantive recommendation, or the employee's actions are
peripheral to the merits of the decision process, the employee's
actions will not be considered to be personal and substantial
participation. See e.g., EC-COI-85-48 (forwarding claim to
appropriate staff for review and determination); 82-138; 82-82
(providing peripheral information in the decision-making process).
For example, in EC-COI-81-113, a state employee, in his state
position, provided technical advice to a city, advising the city
not to provide certain information in its response to a request for
proposals for a grant awarded by the state agency. Subsequently,
the state employee left state government and was approached by the
city to serve as a consultant to the city under the grant. The
Ethics Commission concluded that the advice the employee rendered
to the city occurred at a preliminary stage in the process and was
peripheral and immaterial to the final grant determination. The
Commission contrasted this state employee's involvement with that
of the state employee in EC-COI-79-74 cited above, who rendered
advice related to the central considerations in the final
evaluation of a contract and whose expert opinion was sought by
decision-makers. Id.; EC-COI-79-74.

Similarly, in EC-COI-88-11, a state employee had one
telephone conversation with a city official concerning the city's
interest in developing a parcel of property. The state employee
advised the city official that the city needed a plan to develop
the property. This action by the state employee was not deemed to
be personal and substantial participation such that the state
employee, having left state service, was precluded from consulting
for the city on issues relating to the city's creation of a master
development plan for the property. See also, EC-COI-81-159
(initial suggestions regarding division's operational needs not
related to ultimate decision to contract).

In each of the opinions discussed above, the Commission
reviewed the public employee's actions while in the government and
weighed whether the actions were material and of substance to the
particular matter at issue so that the employee's sole loyalty in
the matter should remain with the government. We now turn to a
consideration of whether each or any of your City Council votes
constituted personal and substantial participation in the Board
proceeding at issue.

Relying on the plain meaning of the words "personal and
substantial", the federal interpretation of the phrase and our
precedent, we conclude that your January 16, 1996 vote to request
the City Manager to organize a task force to study and educate the
City Manager's office about the siting process did not constitute
participation, within the G.L. c. 268A, s. 1(j) definition, in the
Board proceeding. At the time of this vote, no application was
pending before the Board. The purpose of the task force was to
encourage City officials to educate themselves about the siting
process in general. We characterize this vote as preliminary and
peripheral to any actual proceeding.

Additionally, based on your understanding and characterization
of the November 4, 1997 vote, we consider that vote to transfer
funds from the City Manager's line item to the Inspectional
Services Department line item to be an administrative matter that
was peripheral to the Board proceeding. It is your understanding
that the Board had retained experts to help the Board better
understand the data and that some funding had been paid from the
Legal Department budget. The transfer was to replenish the Legal
Department's budget. The City Council offered no advice,
recommendation, or took other substantive action regarding the
merits, such as, whether the Board should retain experts, the
nature of the experts to be retained, the identity of the experts,
or how the experts should be utilized in the Board proceedings.

We consider the October 29, 1996 vote to write the statehouse
delegation a "closer call," but conclude that, by this vote, you,
as a City Councilor, did not personally and substantially
participate in the Board proceeding, as required by G.L. c. 268A,
s. 1(j). When the City Council voted to notify the local state
house delegation that the Council was opposed to the siting of any
Facility anywhere in the City, it was making a general policy
statement,[14] unrelated to the merits of a specific application.
At the time of the vote no application was pending, although you,
at least, suspected that the applicant would submit another
application. The City Council did not send its statement to the
Board or to DEP, thus attempting to influence those officials who
were the decision-makers. See e.g., In re Craven, 1980 SEC 22;
EC-COI-81-113. Moreover, the City Council had no authority to
intervene in any specific siting proceeding.

In conclusion, your participation in these specific City
Council votes was not sufficiently personal and substantial
participation in the siting decision such that you should be
barred from acting as an attorney in a potential appeal of the
siting decision. As the Commission has indicated, the purpose of
the restrictions on former public employees "is to bar . . . former
employees, not from benefitting 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." EC-COI-93-16 (quoting EC-COI-92-17 ). You did not have
access to any confidential information from the Board proceedings
or any "inside" familiarity with the proceedings. Your City Council
votes of January 16, 1996, October 29, 1996 and November 4, 1997
were not material to the Board proceeding and do not constitute
personal and substantial participation in that proceeding so as to
preclude your representation of private parties in connection with
that proceeding.

------------------------

[1] Members of the Board are appointed by the City Manager with
confirmation by the City Council.

[2] The criteria to be used by DEP and the local board of health in
reviewing a site assignment application are contained in G.L. c.
111, s. 150A 1/2. Among the considerations are the impact on
municipal water supplies; proximity of water sources and wetlands;
proximity to residential areas; air quality; potential for creation
of a nuisance from noise, litter, rodents, or flies; potential for
adverse public health consequences; traffic impact.

[3] According to G.L. c. 111, s. 150A, "for the limited purposes of
such an appeal, a local board of health shall be deemed to be a
state agency under the provisions of said chapter thirty A and its
proceedings and decision shall be deemed to be a final decision in
an adjudicatory proceeding."

[4] On June 11, 1996, MVP also applied to the Zoning Board of
Appeals for a special permit for the site. The Zoning Board of Appeals
denied the permit because of a lack of jurisdiction.

[5] You have been informed that, on August 13, 1996, the City
Manager sent a letter to DEP expressing his concerns about the first
application and its potential effect on the City. The City Manager
initiated this contact with DEP and had not been directed to do so
by the City Council.

[6] In preparing this opinion, the Ethics Commission staff reviewed
two videotapes of the October 29, 1996 City Council meeting and the
November 4, 1997 meeting.

[7] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s. 1(k).

[8] The State Ethics Commission has concluded that "appears
personally" includes contacting one's former agency in person, in
writing or orally, regarding a substantive matter. EC-COI-87-27.

[9] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s. 1(i).

[10] This opinion does not address the prohibitions of G.L. c.
268A, s. 18(b). We conclude that G.L. c. 268A, s. 18(b) is not
applicable to the situation you present because, under G.L. c. 111,
s. 150A, the City Council did not have any official responsibility
for the siting decision. The City Council had no authority "to
approve, disapprove or otherwise direct" any Board action in the
siting decision.

[11] We acknowledge that you have asked whether you may represent
the association in the Superior Court, not before the Board. However,
your proposed Court representation would be "in connection with"
the Board proceeding for purposes of s. 18(a) because the two
proceedings are integrally related. See e.g., EC-COI-92-17.

[12] By this conclusion, we do not in any way imply that you did
not personally and substantially participate in the City Council
proceedings. Your votes as a City Councilor constituted personal
and substantial participation in those particular matters.

[13] 18 USC s. 207(a)(1) places a permanent restriction on former
federal employees who make, with intent to influence, any
communications or appearance before any department, agency, or
court of the United States in connection with a particular matter
in which the United States is a party or has a direct and
substantial interest; in which the federal employee had
participated personally and substantially; and which involved a
specific party or specific parties at the time of the
participation.

[14] In considering whether the adoption of an agency budget is a
particular matter, the Supreme Judicial Court observed, "the
definition seems to refer primarily to judicial or quasi-judicial
proceedings rather than to legislative or managerial action. . . .
the Legislature has clearly indicated its intention to exclude from
the statute some determinations of general policy, and such an
exclusion seems to be essential if the statute is to be workable."
Graham, 370 Mass. at 139; see also, Laker Airways, Ltd. v. Pan
American World Airways
, 103 F.R.D. 22, 34 (1984). We think that
the Supreme Judicial Court's observation in Graham is particularly
apt to describe the action of the City Council on October 29, 1996.
 

End of Decision