March 19, 2010

QUESTION:

As of January 1, 2010, will a former state employee violate c. 268A, § 5(e) by engaging in strategizing, planning, and research as part of lobbying-related activities, if the former employee does not personally make any "lobbying communications," as that term is used in c. 3, § 39, to the governmental body with which he or she was formerly associated?

 

ANSWER:

No. Pursuant to c. 3, § 39, a person is not within the definition of an executive or legislative agent unless he or she has "at least one lobbying communication with a government employee." Therefore, a former state employee does not violate c. 268A, § 5(e), which prohibits "act[ing] as legislative or executive agent" before one's former agency for one year after leaving state employment, unless he or she has "at least one lobbying communication with a government employee."

 

FACTS:

Two former state employees seek guidance under G.L. c. 268A, § 5(e), in light of recent amendments to that statute, and to the definitions of "legislative agent" and "executive agent" set forth in G.L. c. 3, § 39 and referenced in § 5(e). One former state employee was employed by the General Court, and the other by the Executive Branch; both currently work for entities engaged in lobbying. Both former employees wish to conform their conduct to the law as amended by Chapter 28 of the Acts of 2009.

 

DISCUSSION:

Employees of the General Court and of the Executive Branch are state employees for purposes of the conflict of interest law.

Section 5 regulates the actions of former state employees. Section 5(e) provides that a former state employee or elected official "who acts as legislative or executive agent, as defined in section thirty-nine of chapter three, for anyone other than the commonwealth or a state agency before the governmental body as determined by the state ethics commission with which he has been associated, within one year after he leaves that body," violates the conflict of interest law.

Five years ago, in Advisory Opinion EC-COI-05-3, the Commission addressed the restrictions § 5(e) imposed on a former employee of the General Court who wished to act as a legislative agent before the General Court. We concluded then that § 5(e) prohibited a former legislative employee not only from directly lobbying his former governmental body, but also from indirect "strategic lobbying." We explained that "strategic lobbying" included developing strategies for one's current employer to use in opposing or supporting relevant legislation, assisting activities in planning which legislators to contact, drafting letters to be signed under a third party's signature, strategizing with an employer or client on which legislative districts to target, obtaining information on legislation from legislative agents, and discussing an employer's position on legislation with a legislative agent. Under EC-COI-05-3, any of those activities could be considering lobbying for purposes of § 5(e) even in the absence of any contact between the former state employee and any government employee.

We agree with the requestors that changes in the relevant statutory language made as part of Chapter 28 of the Acts of 2009, subsequent to our issuance of EC-COI-05-3, require us to reconsider our former opinion, and to reach a different conclusion.

At the time we decided EC-COI-05-3, § 5(e) prohibited former state employees from "act[ing] as [a] legislative agent, as defined in section thirty-nine of chapter three," for anyone other than the state, within one year of leaving state service. A "legislative agent" was defined by c. 3, § 39 as any person "who for compensation or reward does any act to promote, oppose or influence legislation, or to promote, oppose or influence the governor's approval or veto thereof." (Emphasis added)[1] Relying upon the statutory words "any act," we concluded that " all actions undertaken with the purpose of promoting, opposing or influencing legislation or the governor's approval or veto thereof are the types of activities in which a legislative agent engages," and that, therefore, a person who engaged in such activities "for compensation or reward" within one year of leaving public service and before his or her former agency would violate the statute, "whether that activity is labeled as public advocacy, strategic lobbying, or direct lobbying."

Chapter 28 of the Acts of 2009 amended the statutory language on which our earlier opinion was based in several pertinent respects. First, it added a reference to executive as well as legislative agents. In addition, and determinative here, Chapter 28 significantly rewrote the definition of "legislative agent," added a parallel definition of "executive agent," and added new definitions of "executive lobbying" and "legislative lobbying." As revised, the definition of a "legislative agent," and the new, parallel definition of an "executive agent," both omit the critical "does any act to promote, oppose, or influence" language upon which our prior opinion relied. Furthermore, the new definitions of "executive agent" and "legislative agent" both specify instead that to be an executive or legislative agent, a person must engage in "at least one lobbying communication with a government employee."[2]

It is true that the definitions of "executive lobbying" and "legislative lobbying" in the amended statute include the strategizing, planning, and research activities that we previously categorized as "strategic lobbying" within the one-year prohibition of § 5(e). However, § 5(e) prohibits former state employees from "act[ing] as legislative or executive agent" before their former agencies within one year of leaving state service - not from "executive lobbying" or "legislative lobbying." In interpreting revised § 5(e), therefore, we look to the revised definition of "legislative agent" and the new definition of "executive agent," and not to the new definitions of "legislative lobbying" and "executive lobbying."

The new statutory definitions of "executive agent" and "legislative agent" are clear and unambiguous, and must be given effect. Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123, 124 (2006); Casey v. Mass. Electric Co., 392 Mass. 876, 880 (1984). The express legislative statement that to be an "executive agent" or a "legislative agent" there must be "at least one lobbying communication with a government employee made by said person," combined with the elimination of the former "any act" language, establishes that a person does not act as an executive or legislative agent unless he or she has "at least one lobbying communication with a government employee." Consequently, a former state employee does not violate § 5(e) by engaging in lobbying activity unless he or she has "at least one lobbying communication with a government employee."

In addition to the changes described above, Chapter 28 of the Acts of 2009 gave the Secretary of State regulatory power and the power to issue advisory opinions on the requirements of c. 3, §§ 39-50. Our conclusion that a former employee acts as an executive or legislative agent only when he or she engages in at least one lobbying communication with a government employee is consistent with a January 21, 2010 informal opinion of the Secretary, concluding that "absent a direct, personal communication with a covered legislative or executive official by an individual, the participation of that individual in strategizing, planning and research activities does not trigger registration."

In sum, we conclude that the changes in c. 3, § 39 and c. 268A, § 5(e) require that, to the extent that EC-COI-05-3 held that "strategic lobbying" of one's former agency within one year after leaving state service, absent a direct lobbying communication with a government employee, would violate § 5(e), it should be overruled. A former state employee acts as an executive or legislative agent for purposes of § 5(e) only when he or she has "at least one lobbying communication with a government employee," and the other requirements of § 5(e) and of c. 3, § 39 are met.

The requestors have not asked us to interpret the statutory phrase "lobbying communication." Absent any expression of opinion about the meaning of this phrase from the Secretary of State, who is charged with its interpretation, we do not address the interpretation of that phrase.

 

CONCLUSION:

For the above-stated reasons, we conclude that the conflict of interest law, G. L. c. 268A, § 5(e), permits a former state employee to engage in "strategic lobbying," including strategizing, planning, and research, as part of lobbying-related activities, as long as the former state employee does not have at least one lobbying communication with a government employee.

 

DATE AUTHORIZED: March 19, 2010

 



[1] Under G.L. c. 3, § 39 prior to its amendment by c. 28 of the Acts of 2009, "legislative agent" was defined as follows: "Legislative agent," a person who for compensation or reward does any act to promote, oppose or influence legislation, or to promote, oppose or influence the governor's approval or veto thereof. The term "legislative agent" shall include a person who, as part of his regular and usual business or professional activities and not simply incidental thereto, attempts to promote, oppose or influence legislation, or the governor's approval or veto thereof, whether or not any compensation in addition to the salary for such activities is received for such services; provided, however, that for purposes of this definition a person shall be presumed to engage in activity covered by this definition in a manner that is simply incidental to his regular and usual business or professional activities if he engages in any activity or activities covered by this definition for not more than fifty hours during any reporting period or receives less than five thousand dollars during any reporting period for any activity or activities covered by this definition.

[2] Under c. 3, § 39 as amended by c. 28 of the Acts of 2009, the full definition of a "legislative agent" is as follows: "Legislative agent," a person who for compensation or reward engages in legislative lobbying, which includes at least 1 lobbying communication with a government employee made by said person. The term "legislative agent" shall include a person who, as part of his regular and usual business or professional activities and not simply incidental thereto, engages in legislative lobbying, whether or not any compensation in addition to the salary for such activities is received for such services. For purposes of this definition a person shall be presumed to be engaged legislative lobbying [sic] that is simply incidental to his regular and usual business or professional activities if he: (i) engages in legislative lobbying for not more than 25 hours during any reporting period; and (ii) receives less than $2,500 during any reporting period for legislative lobbying.
 

The full definition of "legislative lobbying" added by c. 28 is as follows: "Legislative lobbying," any act to promote, oppose, influence or attempt to influence legislation, or to promote, oppose or influence the governor's approval or veto thereof including, without limitation, any action to influence the introduction, sponsorship, consideration, action or non-action with respect to any legislation; provided further, that legislative lobbying shall include acts to influence or attempt to influence the decision of any officer or employee of a city or town when those acts are intended to carry out a common purpose with legislative lobbying at the state level; and provided further, that legislative lobbying shall include strategizing, planning and research if performed in connection with or for use in an actual communication with a government employee; provided, however, that "legislative lobbying" shall not include providing information in writing in response to a written request from an officer or employee of the legislative branch for technical advice or factual information regarding any legislation for the purposes of this chapter.
 

Under c. 3, § 39 as amended by c. 28 of the Acts of 2009, the full definition of an "executive agent" is as follows: "Executive agent," a person who for compensation or reward engages in executive lobbying, which includes at least 1 lobbying communication with a government employee made by said person. The term "executive agent" shall include a person who, as part of his regular and usual business or professional activities and not simply incidental thereto, engages in executive lobbying, whether or not any compensation in addition to the salary for such activities is received for such services. For the purposes of this definition a person shall be presumed to be engaged in executive lobbying that is simply incidental to his regular and usual business or professional activities if he: (i) engages in executive lobbying for not more than 25 hours during any reporting period; and (ii) receives less than $2,500 during any reporting period for executive lobbying.
 

The full definition of "executive lobbying" added by c. 28 is as follows: "Executive lobbying," any act to promote, oppose, influence or attempt to influence the decision of any officer or employee of the executive branch or an authority, including but not limited to, statewide constitutional officers and employees thereof, where such decision concerns legislation or the adoption, defeat or postponement of a standard, rate, rule or regulation promulgated pursuant to any general or special law, or any act to communicate directly with a covered executive official to influence a decision concerning policy or procurement; provided further, that executive lobbying shall include acts to influence or attempt to influence the decision of any officer or employee of a city or town when those acts are intended to carry out a common purpose with executive lobbying at the state level; and provided further, that executive lobbying shall include strategizing, planning and research if performed in connection with, or for use in, an actual communication with a government employee; and provided further, that "executive lobbying" shall not include providing information in writing in response to a written request from an officer or employee of the executive branch or an authority for technical advice or factual information regarding a standard, rate, rule or regulation, policy or procurement for the purposes of this chapter.