August 17, 1987

 

FACTS:

You are a partner in a law firm. A former employee of the Department of the Attorney General is also a partner in that firm. You have for some time represented certain clients in connection with regulations which were initially proposed by the Department of the Attorney General while your partner was employed in the Attorney General's Office. The former employee reviewed a draft proposal of certain regulations suggested changes, and subsequently met with various industry representatives regarding that draft. After those meetings and further review, the Attorney General's Office ordered the proposed regulations withdrawn.
The Attorney General's Office has continued the process of drafting and reviewing the same regulations and has recently issued a final draft (entitled XYZ Regulations). There are substantive differences between the final draft and the original draft initially proposed. The draft regulations, however, retain the same title, contain verbatim many of the same provisions as the earlier draft and the tables of contents of the drafts are nearly identical.

The subsequent draft is presently being reviewed by the Department of the Attorney General in cooperation and consultation with various industry representatives. You have been asked to continue your representation on behalf of your clients in discussing and negotiating these regulations. You intend to make a number of arguments which assert that the proposed regulations are overburdensome; they do not take into account well recognized custom and usage in the specific industry; the Attorney General did not properly take into consideration the views of the industry prior to announcement of the final draft; and the regulations are overly broad and therefore beyond the authority of the Attorney General.

After the regulations are formally promulgated you intend to continue to represent your clients in connection with the regulations.

You have recognized that if the former employee were prohibited by G.L. c. 268A, s.5(a) from representing your clients before the Attorney General's Office, that you too would be so prohibited for a one-year period under s.5(c) of the conflict law. You maintain, however, that the former employee would not be so prohibited in representing your clients before the Attorney General's Office within the meaning of s.5(a).

 

QUESTIONS:

1. Does G.L. c. 268A, s.5(a) permit the former employee or his law partners to represent private clients in negotiations, discussions or other communications with the Attorney General's Office in connection with the continued promulgation of the draft regulations?

2. Once the regulations are formally promulgated, does G.L. c. 268A, s.5(a) permit the former employee and his law partners to represent private clients in connection with the application or interpretation of the regulations?

 

ANSWERS:

1. No.

2. Yes.

 

DISCUSSION:

You contend that the proposed regulations under consideration do not constitute "particular matters" within the meaning of s.5(a). While it is true that the Commission has ruled that regulations, once promulgated, are not "particular matters", we also have held that the decisions and determinations made during the process of promulgation are "particular matters." ECC-COI-81- 34. In this case the proposed regulation is in draft form and policy considerations are still on the table. We conclude that the former employee would be prohibited from challenging the policy, judgment or wisdom of those draft regulations. The XYZ regulations are part and parcel of the promulgation process which included initial draft regulations. In substance, the two regulations are similar, and indeed, most of the provisions have been copied verbatim. See, EC-COI-81-34 (that a prior set of regulations were no longer in effect but had been superceded by a single regulation did not result in the conclusion that the subsequent single regulation was part ofa separate promulgation process).

The former employee rendered advice and made decisions or determinations regarding the draft form of XYZ Regulations. Therefore, he participated personally and substantially in the promulgation process and made

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decisions or determinations regarding the public policy of some or all of the regulations in this set. If the former employee were now to appear on behalf of a private client who was potentially affected by these regulations and opposed their promulgation as dralted, he would be, as stated in EC-COI-81-AA-34, "in essence seeking to tear down that which he had helped to build." Thus, the former employee is permanently prohibited from challenging the wisdom or legality of the draft regulation and you are similarly prohibited for a one-year period after the termination of the employee's state service.[1]

In EC-COI-81-34, we recognized that, once the regulation is in final form, there exists a permissible scope of representation. We held that a former state employee may properly represent a private party in a case related to the interpretation or application of a regulation which he had previously participated in drafting as a state employee.[2] This interpretation is consistent with the policy that lawyers who develop a specialized area of expertise should not be perpetually precluded from representing private clients in that area of expertise. Such a ban would unduly restrict the livelihood of specialized attorneys and deprive clients of needed expertise. The Commission held, however, and reaffirms that such representation may not include an attack on the validity of the regulations.

In EC-COI-81-34, we recognized that such a subsequent challenge to the validity of regulations may take many forms. For example, there are certain prerequisites to the adoption of regulations which are set out in G.L. c. 30A, s.s.2 thru 6. A challenge based on a claim that the agency did not properly meet the prerequisites to the adoption of regulations would be a challenge to their validity. A complaint that an agency did not properly take into consideration the views of the industry which it regulates in adopting a draft set of regulations, although not technically a challenge pursuant to G.L. c. 30A, s.2 thru 6, would nevertheless be a challenge to the decisions made in the process by which the regulations were formulated, and therefore, would be a challenge to the validity of the process.[3]

Whether a particular representation will be considered a challenge to the validity of regulations or merely related to their interpretation or application must be decided on a case-by-case basis. If there is a question as to whether a particular form of representation involves a challenge to validity or an issue of application, you may obtain a subsequent opinion specific to the form of representation in question.

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[1] This conclusion would apply equally to representation in support of the wisdom of the draft regulations, since such communication would also be in connection with determination, made in the promulgation process.

[2] This interpretation of the conflict law is consistent with the current interpretation of federal law as enunciated in the Code of Federal Regulations. In discussing the restrictions on former federal government employees, the Federal Office of Governmental Ethics provides examples. One example is as follows:

An employee is regularly involved in the formulation of policy, procedures and regulations governing department procurement and acquisition functions. Participation in such activities does not restrict the employee after leaving the government as to particular cases involving the application of such policy, procedure or regulations. 5 CFR s.737.5(7)(c).

[3] These examples are provided for illustrative purposes. Other examples include, but are not limited to, a claim the regulation is "arbitrary, capricious, or unlawful", is beyond the authority of the agency to promulgate, it unconstitutional (i.e. irrational), is contrary to the plain language of the enabling statute, or did not take into consideration those factor's which the enabling statute or law requires be taken into consideration. All of these standard claims are a challenge to the underlying assumption of the lawfulness of the promulgation process. EC-COI-81-34.

 

End Of Decision