July 27, 1987

 

FACTS:

On January 21, 1987, you resigned as Chief of the Industrial Accidents Division (Division) of the Department of the Attorney General. The Division has responsibility for representing the interests of the commonwealth in compensation claims made by state employees. State employees who are injured during the course or scope of their employment are treated the same way as workers in the private sector. Within 48 hours after an injury, it is the responsibility of the agency which employs the employee to file a "Notice of Injury" with the Industrial Accident Board.[1] In general, if an employee were out of work for six consecutive days as a result of an injury sustained during work, he would have a claim for compensation. After the six days, the Attorney General's Office would be required to make a decision. One decision could be to commence payment pursuant to the statute.[2] Another decision could be to deny responsibility for the claim. A third option could be to conduct further investigation. If after six days, the Commonwealth failed to acknowledge or pay the claim, the state employee could file a formal claim with the Industrial Accident Board. The commonwealth then has 14 days in which to admit or deny the formal notice of a claim. The Attorney General's office is officially involved in the claim when the decision is made whether to either make payment after the six day loss of compensation period or to conduct further investigation.

There are certain procedures which may commence

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many years after an injury in the field of workers' compensation. For example, there are so called Section 36 benefits for loss of function or disfigurement. These claims are not viable or proper for presentation to the Industrial Accident Board until there is a so called "end result." This being the case, a Section 36 claim may not be filed until many years after an initial injury. If the Section 36 claim is not resolved privately, a separate adversarial proceeding will result. For example, there may be a dispute as to the extent or percentage of loss of function, and this would affect the amount of compensation. Similarly, there may be separate proceedings with respect to discontinuance of a claim. For example, under the former procedure an employer could request a "discontinuance conference" if the employer had reason to believe that the basis for the employee's receipt of compensation benefits no longer applied. The employer would file a Request for Discontinuance, which might result in a separate adversarial proceedings with respect to that issue.[3]

You have now entered into the private practice of law and intend to concentrate in the area of industrial accidents, the area of expertise which you developed as Chief of the Division.

 

QUESTIONS:

1. May you, consistent with the conflict of interest law, represent a state employee in a workers' compensation claim if you did not previously participate personally and substantially in a compensable claim of that same employee?

2. Is a discontinuance conference or a Section 36 claim under the workers' compensation statute a separate particular matter from the original claim for compensation as a result of a work related injury?

3. Is calling the Attorney General's office in an attempt to adjust a workers' compensation case considered appearing before that agency" as defined in s.5(b)?

 

ANSWERS:

1. Yes, however you will be subject to the restrictions set forth in G.L. c. 268A, s.5(b).

2. No.

3. Yes.


DISCUSSION:

1. G.L.c. 268A,s.5(a)


Section 5(a) of G.L. c. 268A prohibits a former employee from representing a client in connection with a particular matter[4] in which the state is a party or has a direct and substantial interest and in which he participated as a state employee. Participate is defined in s.1(j) of the conflict law, in part, to participate in agency action "personally and substantially." As Chief of the Division, you will be deemed to have participated personally and substantially in a claim for compensation if you made any decisions, determinations, or approvals of a case. You will also be deemed to have participated personally and substantially in agency action if you actively supervised or consulted with others in their decisions, approvals or determinations. Therefore, because of your position as Chief of the Division, you must keep this restriction in mind whenever you are asked to represent a state employee if the date of injury occurred during the time that you were employed by the commonwealth. If on the other hand, you are asked to handle a compensation claim made by a state employee, and the date of injury is after January 21,1987, s.5(a) would not prohibit such representation.

You have asked whether you may represent a state employee in a discontinuance conference or a Section 36 claim, if you had supervised the initial claim for compensation as Chief of the Division. The Commission concludes that a discontinuance conference or a Section 36 claim involves the same particular matter as the initial request for a claim by the employee to be compensated. The definition of particular matter includes claim and controversy. The claim is "in the matter of" the employee's claim for compensation,specific to a work-related injury. The fact that the compensation is payable in components or possibly through separate proceedings does not create distinct and separate claims for purposes of the conflict of interest law. Consequently, if you supervised a determination of an initial compensation payment regarding a specific employee, you may not subsequently represent that same employee in a discontinuance conference.


2. Section 5(b)


In addition to the restrictions of s.5(a), you will also be subject to restrictions under s.5(b). As a former state employee,you may not appear personally before any court or agency of the commonwealth for one year as an attorney for an employee in connection with a compensation claim which was under your official responsibility at any time within a period of two years prior to the termination of your employment. This provision would prohibit your appearance before the Attorney General's office regarding negotiation of a discontinuance conference or Section 36 claim if the employee were injured and was paid compensation benefits within two years prior to the termination of your employment.
You have asked whether this same restriction would apply if, in place of physically appearing before the Attorney General's office,you called the Attorney General's office in an attempt to adjust a worker's

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compensation case. The Commission concludes that a former employee who contacts his former agency in person, in writing or orally,regarding a substantive matter, appears personally before that agency for purposes of the conflict of interest law, Thus, the Commission has consistently held that a member of the General Court may not "personally appear" for any compensation within the meaning of s.4 by negotiating on behalf ofa private client with a state agency. EC-COI-79-16. No distinction has been made between negotiating over the telephone, in person or in writing.
Prior to 1978, the Federal counterpart to s.5(18 U.S.C.A.,s.207) used the term "appear personally." In a law review article written in 1963 commenting on the language "appears personally," it was written: "The term 'appears personally' raises the question of whether physical appearance is essential. Probably, it includes the filing of documents ... or even a letter of comments .." The New Conflict of Interest Law, 76 Harv. Law Rev.,1113 at 1155, April 1963.

The federal conflict law dealing with former employees was clarified in 1978, P.L. 87-849, October 23, 1978, because terminology such as "personally appears" was too ambiguous and there was a need to clarify and define. 1978 U.S. Code Cong. Adm. News, p. 4216,4250. The law was strengthened to extend the prohibition against representing private parties on matters within the official's former responsibility from one to two years and to describe specifically what constitutes prohibited representation. The new law has been interpreted to prohibit "any contact with any court, department or agency including "oral or written communications with intent to influence." Id. at 4368. The Commission's interpretation is thus consistent with the clarification of the federal law upon which G.L. c. 268A is modeled.

The Commission's interpretation carries out the intent of the restrictions applicable to former employees. One purpose of s.5 is to ensure that former employees do not use their past friendships and associations within government to derive unfair advantage for themselves or others. See, In the Matter of Thomas W. Wharton, 1984 Ethics Commission, 182. One's influence is the same whether that influence is communicated orally, in writing or in person. To be sure, there may be certain communications which relate solely to procedure and which are so de minimis so as not to present an opportunity to derive unfair advantage. Consistent with the new federal law, this may be the case where the oral or written Communication is not intended to influence. Calling the Attorney General's office in an attempt to adjust a workers' compensation case, however, is negotiation intended to influence and thus not fairly characterized as a de minimis communication.

The terms of s.5(b) limit the application of the appearance restrictions to your "appearing personally." Therefore, it is permissible for your associates, or employees to negotiate with the Attorney General's office. The term personal means that the appearance of others will not be imputed to you even if the appearance is subject to your direction and control.[5]
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* Pursuant to G.L. c. 268B, s.3(g), the requesting person has consented to the publication of this opinion with identifying information.

[1] Since this opinion pertains for the most part to injuries which predated November 1, 1986, we will use the language of the previous workers' compensation statute which applied to all injuries preceding that date. G.L.c. 152. Currently, the Industrial Accident Board is called the Department of Industrial Accidents as a result of comprehensive amendments codified in St 1986, c. 662, effective November 1, 1986.

[2] The commonwealth is self-insured.

[3] Under the new procedure, the employer has the right to discontinue payments unilaterally. The burden is then upon the individual employee to file a claim for further compensation.

[4] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, connact, 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.

[5] The phrase "appears personally" as used s.5(b) should not be equated with the term "appearance" as it is used in the law of juriadiction. An appeaance is an actor proceeding by which parties to a civil action place themselves before the jurisdirtion of the court, personally or by representation. An appearance may take the form of filing a document, posting a bond accepting service, or physically appearing before a court. In some situations; courts have held that setinement negotiations and exchange of correspondenoe is sufficient to be deemed an appearance for certain purposes. See, Christie v. Carlisle, 584 P. 2d 687,689,94 Nev.651(1978). There is no indication that the general court, in enacting the conflict of interest law, intended the phrase "appears personally" to be synonymous with submitting to the authority of a civil court of law.

 

End Of Decision