February 8, 1989

FACTS:


You recenlly completed a five-year term as Secretary of the
Executive Office of Environmental Affairs (EOEA). As Secretary of
EOEA, a cabinet level agency, you had responsibility for
implementing and overseeing all state policies aimed at preserving,
protecting and regulating the natural resources and the
environmental integrity of the Commonwealth, and for supervision
of all departments that comprise EOEA the Metropolitan District
Commission (MDC), the Massachusetts Water Resources Authority
(MWRA), the Department of Environmental Quality Engineering (DEQE),
the Department of Environmental Management (DEM) (including the
Division of Water Resources and the Water Resources Commission),
the Department of Food and Agriculture (DFA), and the Department
of Fisheries, Wildlife and Recreational Vehicles (DFW&RV) -- as
well as the three operating units within EOEA that reported
directly to the Secretary: Division of Conservation Services (DCS),
the Massachusetts Environmental Policy Act and Review Unit (MEPA),
and the Office of Coastal one Management (CZM).

During your term as EOEA Secretary, you regularly met and worked
with all of these agencies on the development of their rules and
regulations and of specific environmental policies, including
policies with respect to the disposal of solid, hazardous and
radioactive wastes. In connection with the work of the three EOEA
operating units, you personally participated in one way or another
in the decisions on most of the particular matters which came
before them. In the case of the departments, however, the specific
application of rules, regulations and policies to particular
situations was typically the responsibility of and performed by the
department heads themselves, with little or no participation by
you.

The most significant exception to this departmental pattern was
the MRA, on whose Board of Directors you served, by virtue of its
enabling act, as ex officio member and Chairman from its creation
in January, 1985 through December 2, 1988. In that capacity, you
participated in the decisions regarding all of the MWRA's
activities, particularly its operation of the wholesale water and
sewer functions for forty-three cities and towns, including the
City of Boston, in eastern Massachusetts, the launching of its
multi-billion dollar Boston Harbor clean-up program, and the
development of short and long-term plans for protecting and
augmenting the water supply for eastern Massachusetts.

As of January 3, 1989, you became Of Counsel to the law firm of
Choate, Hall & Stewart (the firm), at 53 State Street, Boston,
Massachusetts. The firm, a general partnership consisting of fifty-
five partners, three of counsel and eighty-five associates, is
engaged in the general practice of law, with emphasis on litigation
and on corporate, securities, banking, creditors' rights, tax, real
estate, health care, trust, probate, labor, land use and
environmental law. You will not be described or held out by the
firm as a partner of the firm. Your financial arrangement with the
firm will involve an annual fixed salary, with a

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prospect of a possible merit bonus (not measured by profits) at
the end of each year's employment. You will have no "equity"
interest of share in the profits of the firm (including any profits
from business which you may originate); will not be responsible for
contributing to any losses or to any capital or operating expenses;
will not have any interest in the assets of the firm; and will not
have a vote on partnership decisions, although it is anticipated
that you will attend most partnership meetings and functions and
participate in discussions of matters affecting the area of
practice in which you will be involved. As is the firm's policy
with respect to lawyers who become "Of Counsel" to the firm, after
a period of anywhere from one to three years, you shall, if you
choose to remain with the firm, become eligible to request
consideration for partnership on the same basis as all other
candidates for partnership. No promises or guarantees of
partnership have: however, been made to you.

As "of counsel" to the firm, you shall be engaged full-time in
assisting and advising the firm's Land Use and Environmental Law
Practice Group, under the direction of its Chairman, Donald L.
Connors. This group's practice involves all aspects of the
regulation of the use and development of land and other natural
resources and consists of advising public and private clients on
local, state and federal laws, assisting them in obtaining
required licenses and permits for their desired activities, assisting them
in complying with applicable laws and regulations, and assisting
them with respect to environmental policy analysis, initiatives,
and legislation/regulation. It is presently anticipated that your
legal efforts will concentrate on assistance to lients concerning
solid waste management and facility operations but will also
involve advice to clients regarding compliance with land use and
environmental legal requirements and assistance with the firm's
land use and environmental consulting practice. Because of your
concentration in this area of practice, it is likely that your
official tide will be "environmental counsel" to the firm, rather
than merely "of counsel."

You are now a former state employee and seek guidance regarding
the application of G.L. c. 268A to the work you propose to do for
the firm's Land Use and Environmental Law Practice Group.


QUESTION:


What are the general principles and definitions under G.L. c.
268A that would apply to you as a former state employee?


ANSWER :


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, five paragraphs of G.L. c.
268A are relevant to your situation.


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 Secretary of EOEA.


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
during a two-year period prior to your departure from EOEA.

A "particular matter" includes any application, submission,
request for ruling, decision or determination. G.L c. 268A,
s.1(k). The environmental impact review process on a particular
project, culminating in an environmental impact report, is a
particular matter within the meaning of the statute. Although the
Secretary makes several different decisions at different stages in
the process of producing the report, each of these decisions is not
a different particular matter in that each is a related step in the
development of the final environmental impact report. We have
indicated that an entire project is not one particular matter where
the different phases of the project are distinct and
distinguishable, see EC-COI-85-22, but we decline to extend that
analysis to the various stages of development of an environmental
impact report where the decisions made, although technically
distinct, clearly involve the same particular matter. See EC-COI-
84-31
.

Participate is defined in G.L. c. 268A, s.1(j) as to participate
in a particular matter "personally and substantially." Not all
participation by a government employee will be deemed personal and
substantial. "In those instances where a government employee is
involved in ministerial activity not directly affecting a

Page 236

particular matter, the conduct may not constitute substantial
participation as defined in the statute." In the Matter of John
Hickey
, 1983 SEC 158, 159.

We have indicated that participation that is ministerial and
after the fact is not substantial. The forwarding of a letter, for
example, is not personal and substantial, In the Matter of Paul H.
Sullivan
, 1988 SEC 340 (Commission Adjudicatory Docket No. 319),
and that providing general information to decision-makers may not
constitute personal and substantial participation in the decision
eventually made, EC-COI-82-82. Participation that is superfluous,
nondeterminative, or not part of the decision-making process is
more likely to be deemed ministerial. See, e.g., EC-COI-82-138;
EC-COI-82-46
.

Participation in discussions involving a particular matter is
not ministerial, however. See Graham v. McGrail, 370 Mass. 133
(1976). (Approving a recomendation made by a subordinate is not
ministerial. See EC-COI-86-6; EC-COI-86-3 ). The act of merely
assigning complete responsibility for reviewing and approving or
responding to filings by parties involved in the environmental
impact review process to one of your undersecretaries would not be
deemed personal and substantial participation in that matter on
your part in that you would play no role in the decision-making
process. Similarly, the fact that the undersecretary would prepare
and sign, over your typewritten name, the responsive document
without any further involvement or oversight by you is not enough
for you to be deemed to have participated in the matter. Your
typewritten name, in this context, would only indicate that you had
authorized them to respond. Were you to play an active oversight
role, however, your awareness of and tacit approval of the work of
your direct subordinates could then constitute participation within
the meaning of the statute. See, EC-COI-79-57.

You would have had official responsibility for all MEPA matters
assigned to your undersecretary, however. We have indicated that
something a subordinate does may still be within your official
responsibility. See, e.g., EC-COI-85-11; In the Matter of Donald
P. Zerendow
1988 SEC 352 (Commission Adjudicatory Docket No. 357).
Official responsibility turns on the authority to act, and not on
whether that authority is exercised. EC-COI-84-48; EC-COI-83-37;
Buss, The Massachusetts Conflict of Interest Statute: An Analysis,
45 B.U. Law Rev. 299,321(1965). The fact that these comments would
be signed over your name would be further evidence that the matter
was within your official responsibility as were all particular
matters filed in the EOEA and the departments that comprise EOEA,
including the independent agencies like the MDC and the MWRA,
during your tenure as Secretary. This is Consistent both with the
broad legislative mandate the Secretary receives to supervise the
entire EOEA, see G.L. c. 21A, s.1, and the general intent of the
conflict law that section 5(b)'s restrictions become greater, the
greater the authority found in the former state employee's
position.

To summarize the restrictions placed on you by paragraphs 5(a)
and (b),then, you are forever barred from acting as agent or
attorney for anyone other than the state in connection with
particular matters in which you personally participated as the
Secretary, and you are barred for one year from appearing before
the state in connection with those particular matters that were
within your official responsibility, i.e., all matters pending
within EOEA and its departments, during your last two years of
service as the Secretary.


Section 5(e)


This paragraph prohibits you from acting as legislative agent[4]
for anyone other than the Commonwealth or a state agency before
any EOEA agency or unit within one year of the time you left EOEA.
See EC-COI-85-52. You may, as a result, act as legislative agent
for someone other than the Commonwealth before any non-EOEA agency,
provided that the other provisions of section 5 are not violated.
You should note that the Commission has indicated that acting as
a legislative agent includes any act done to promote, oppose or
influence legislation. In the Matter of Cornelius J. Foley, Jr,
1984 SEC 172. This broad definition of lobbying promotes section
5(e)'s purposes whether or not the former state employee involved
is a former legislator or legislative staff member. The potential
for abuse of special knowledge of or access to a state agency is
not limited to former legislators or legislative staff members.


Section 5(c)


This paragraph prohibits any partner you might have, for one
year period following the termination of your employment the
Commonwealth, from engaging in any activity in which you are
prohibited from engaging by section 5(a) of the statute. In that
you will not be a partner of the firm, the partners of the firm
will not be Constrained by this section of the statute.

Although the term "partner" is not restricted to those who enter
into formal partnership agreements, EC-COI-80-43, we find nothing
in the "of counsel" or "environmental counsel" relationship you
describe that

Page 237

would cause us to impute partnership status to you. In particular,
the receipt of a merit bonus of the size normally awarded to an
associate and your non-voting attendance and participation in
partnership meetings (a role consistent with that played by senior
associates at the firm) will not, without more, trigger partnership
status. Your identiilcation as "of counsel" or "environmental
counsel" on firm documents and your salary arrangement indicate
that section 5(c) does not apply to the firm. See EC-COI-88-11.


Section 23(c)


This paragraph prohibits you from disclosing confidential
information which you acquired as the Secretary, or from engaging
in professional activities which would require your disclosure of
such confidential information. We have previously defined
"confidential information" as information that is unavailable to
the general public. EC-COI-85-23. This is to be distinguished from
information that, although not well known, is a matter of public
record.

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

*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. G.L. c. 268A, s.1(k).

[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. G.L. c. 268A,
s.1(j).

[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. G.L. c. 268A, s.1(i).

[4] The statutory definition of legislative agent contained in G.L.
c. 3, s.39 includes "any person who for compensation or reward does
any act to promote, oppose or influence legislation."

End Of Decision