April 13, 1988

 

FACTS:


You recently completed a five year term as undersecretary of the Executive Office of Environmental Affairs (EOEA). As undersecretary, you had no specific statutory responsibilities and were assigned responsibilities by the EOEA Secretary. See, G.L. c. 21A, s.1 ("[s]aid undersecretary... shall perform such duties as may be assigned by the secretary.")

Your responsibilities generally involved policy development and service as liaison between EOEA and its agencies, external constituencies such as the legislature and general public, and interested groups. From time to time, you were assigned responsibility for working with an EOEA agency on development of specific policy for example, development of state policies on low level radioactive waste, source reduction, solid waste capacity and response to the hazardous waste initiative petition.

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Specific application of policy to a particular situation was most often the responsibility of the agency, particularly in the instance of application of rules and regulations. Depending on the issue, the EOEA Secretary would assign official responsibility for a particular issue to other staff in the office. For example, although you had responsibility for supervising EOEA staff, you were not specifically assigned responsibility for overseeing the budget preparation for the various agencies.

You are now a former state employee and seek guidance regarding the application of G.L. c. 268A to the following employment opportunities.


1. Fall River Harbor Development


The City of Fall River (City) is developing a master plan for the Fall River Harbor. You have been offered an opportunity to advise the City for up to fifty days per year on issues concerning the use of the state pier, the relevance of Coastal Zone Management (CZM) policies on designated ports, and the impact of Department of Environmental Quality Engineering (DEQE) waterways regulations under G.L. c. 91. Although the Fall River Harbor master plan will not require approval by state agencies, any specific projects developed under the plan will require state approval. You state that the City has recenlly sought DEQE consultation and assistance in preparing the master plan, but that no consultations have yet taken place. In carrying out your advisory responsibilities for the City, you expect to meet with staff from state agencies within EOEA.

You state that, with one exception, you have had no prior involvement with the subject of the development of a Fall River Harbor master plan. In late 1986, the Mayor of Fall River indicated to you in a telephone conversation that the City was interested in developing property on the state pier in Fall River. You responded that the state pier was not currentiy developable and could only be developed in the context of a plan. The gist of your conversation, which lasted for five to ten minutes, was that the City needed a process to develop property on the state pier.


2. Brown Ferris Industries (BFI)


BFI, a waste management company, has offered you a contract to advise it on regulatory issues regarding landfill expansions and the development of new landfill capacity. While employed as EOEA undersecretary, you discussed disposal capacity issues with BFI and other waste companies, but were not involved in DEQE or Massachusetts Environmental Protection Act Unit (MEPA) determinations of landfill site assignments or plan approvals. While such determinations were within the jurisdiction of the particular state agencies within EOEA, you assisted in expediting certain environmental impact reports (EIR's) which were under consideration by MEPA.


3. ORFA


You have been offered a contract with ORFA, a resource/recovery recycling company, to manage its Northeast projects. ORFA currently has received EIR approval for a Somerville project, and since 1985 has submitted requests to MEPA for examination of a transfer station on the same site. You state that you had no involvement or review responsibility for the MEPA review for the ORFA Somerville project.

You may also be assigned by ORFA to work on a project in the Holyoke area. Previously, you participated as Undersecretary in discussions about the suitability of a Holyoke site for resource recovery in connection with an incinerator project proposal submitted by HERCO, a different company. Following a DEQE hearing, the initial HERCO project proposal was denied. ORFA now intends to submit a new proposal on either a Chicopee or Granby site. ORFA's proposal would propose a resource recovery/recycling technology, as opposed to the "mass burn" technology proposed earlier by HERCO.


4. Law Firm


You intend to join the law firm of McCormack and Putziger (Firm) as "of counsel." You will be identified as "of counsel" on the Firm's letterhead and will be provided the use of an office and a secretary. You will not participate in any partnership distributions and will receive revenues derived only from cases in which you provide legal services. As "of counsel", you will not be required to participate in any matter in which the Firm is involved nor can you require the Firm to become involved in any of your cases.

During your EOEA tenure, you worked with MEPA in examining a proposed expansion of a Framingham shopping center which allegedly intruded into wetlands. MEPA denied the proposal and determined that no mitigation would be acceptable in connection with the proposed expansion. The Firm did not appear before MEPA or you in connection with the matter because the Firm had doubts about the ownership of the project. The Firm now wishes to represent a client in connection with the project. You state that you will not participate as "of counsel" in any of the Firm's activities representing the client.


QUESTION:


How does G.L. c. 268A apply to your prospective employment opportunities?


ANSWER:


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You will be subject to the limitations described below.


DISCUSSION:


Upon your departure from EOEA, you became a former state employee. As a former state employee, three paragraphs of G.L. c. 268A will apply to you.


1. Section 5(a)


This paragraph prohibits you from receiving compensation from or acting as attorney or agent for anyone other than the commonwealth in connection with any particular matter[1] in which you previously participated[2] as EOEA Undersecretary.


2. Section 5(b)


This paragraph prohibits you from personally appearing, during a one year period following the completion of your EOEA services before any state court or state agency, in connection with any particular matter which was under your official responsibility[3] during a two year period prior to your departure from EOEA.

For the purposes of s.5(b), we will assume, as you represent, that you possessed no authority to direct, approve or disapprove action by any EOEA agencies, and that your official responsibility was limited to those matters expressly assigned to you by the EOEA secretary.[4] If the scope of your official responsibility were greater than you represent, the one year appearance bar of s.5(b) would also be greater.


3. Section 23(c)


This paragraph prohibits you from disclosing confidentia information which you acquired as an EOEA employee, or from engaging in professional activities which would require your disclosure of such confidential information.
Applying these principles to your four employment opportunities


1. Fall River Harbor Development


Based on the information you have provided, we conclude that s.5 does not prohibit your accepting an appointment by the City to provide advice on the application of state law and regulations to particular proposals considered for inclusion in a master plan. While s.5 would place restrictions on your working on proposals or other matters in which you previously participated or had official responsibility for at EOEA, none of your proposed activities is in connection with matters which were the subject of your previous participation or official responsibility, or were pending in EOEA during your tenure. Your brief conversation with the Mayor in 1986 does not affect this conclusion. Your advice to the Mayor regarding the need for a plan to develop the state pier was not "personal and substantial" participation in the City's decision to develop a master plan for the entire harbor, G.L. c. 268A, s.1(j), nor is your advisory role for the City "in connection with" any matter in which you did participate or had official responsibility for. As we understand it, your advice will be offered in connection with the feasibility under state law of particular proposals. As long as these proposals were not matters in which you previously participated or had official responsibility for, s.5 will not prohibit your activities in connection with these proposals.

We would also add that once you have been hired by the City, you will become a municipal employee for the purposes of G.L. c. 268A. Your outside activities will be governed primarily by G.L. c. 268A, s.17. If the City Council classifies your position as a "special municipal employee" and you serve in your advisory capacity for less than sixty days in any 365 day period, s.17 will restrict only those outside activities which relate to matters in which you participate or have official responsibility for as a municipal employee. If your position is not classified as a "special municipal employee," s.17 prohibits your receiving compensation from or acting as agent for any non-City party in relation to any particular matter in which any City agency is either a party or has a direct and substantial interest. We are available to assist you with the application of s.17 to particular fact situations as they occur.


2. BFl


Your proposed advisory contract with BFI will be permissible under s.5 as long as the particular proposals or controversies for which you will be advising BFI are new matters in which you did not previously participate or have official responsibility for as an EOEA employee. The restrictions of s.5 (a) would apply, for example, with respect to any EIR which you assisted in expediting with MEPA, as well as with respect to your challenge of the validity of any EOEA agency regulations which you assisted in drafting. EC-COI-81-34.


3. ORFA


Your proposed management consultation activities for ORFA appear to be permissible under s.5. The ORFA Somerville project does not involve matters in which you previously participated or had official responsibility for as an EOEA employee. Further, the ORFA resource recovery proposal in western Massachusetts is a different particular matter from the HERCO Holyoke proposal in which you did previously participate. Because the ORFA

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proposal is a new submission involving a different technology in a different location from the initial HERCO proposal, your ORFA activities would be regarded as in relation to a different particular matter for the purposes of G.L. c. 268A. Compare, EC- COI-84-31; 8414.


4. Law Firm


The restrictions of s.5(a) also apply to partners of former state employees. For example, with respect to those decisions, determinations and other particular matters in which you participated at EOEA, your partners are subject to a one year bar on their receiving compensation from or representing clients in relation to these same matters. Based upon the information you have provided, you will not be considered as having "partners" in the Firm for the purposes of s.5(c). This result will continue to apply long as your "of counsel" status continues as you have described it. See, EC-COI-8O-43. Of course, s.5(a) will continue to apply to you with respect to matters in which you previously participated, for example, the proposed expansion of the Framingham shopping center. 

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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] "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.


[2] "Participate." 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.


[3] "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.


[4] In light of your representation, we do not reach the question of whether the EOEA Secretary possessed "official responsibility" for all particular matters pending within his secretariat.

 

End Of Decision