May 13, 1991

FACTS:

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You are a former employee of the Department of Industrial Accidents (Department), now engaged in the private practice of law. You have asked whether the conflict of interest law applicable to former state employees, M G.L. c. 268A, s.5, would prohibit you from representing private sector employees and employers in workers compensation matters which were pending prior to your departure from the Department. Specifically, you raise the question as to whether the Commonwealth has a direct and substantial interest in workers compensation matters which involve two or more private parties - the worker and the employer.[1]

You inform us that, pursuant to M.G.L. c. 152, the Department is the forum in which all workers compensation claims are made by employees in the Commonwealth. Other than those claims in which the Commonwealth or a political subdivision of the Commonwealth is the employer, a workers compensation claim is made by a private litigant against a private employer. In addition, you inform us that the Department receives virtually all of its funding from private sector employers through a premium payment procedure. Based upon those facts, you would characterize the workers compensation proceeding as merely a forum to resolve private litigation. In effect, you would analogize such proceedings to civil litigation pending in courts of the Commonwealth - matters in which the Commonwealth usually does not have a direct and substantial interest.

 

QUESTION:

Under M.G.L. c. 268A, s.5, may a former employee of the Department of Industrial Accidents represent private employees or employers on matters in which he participated, or which were pending during the final two years of his tenure?  

 

ANSWER:

No, for the reasons stated below.

 

DISCUSSION:

Section 5

As a former employee of the Department, you are considered a former state employee for purposes M.G.L. c. 268A, s.5.
Section 5(a) prohibits a former state employee from knowingly acting as an agent or attorney for, or receiving compensation, directly or indirectly, from anyone other than the Commonwealth or a state agency, in connection with any particular matter[2] in which the Commonwealth or a state agency[3] is a party or has a direct and substantial interest and in which he participated[4] as a state employee while so employed.

Section 5(b) prohibits a former state employee, within one year after his last employment has ceased from appearing personally before any court or agency of the Commonwealth as an agent or attorney for anyone other than the Commonwealth in connection with any particular matter in which the Commonwealth is a party or has a direct and substantial interest and which was under his official responsibility[5] as a state employee at any time within a period of two years prior to the termination of his employment.[6]
As a general rule, matters pending in state agencies are "particular matters" within the meaning of M.G.L. c. 268A, s.1(k). See, e.g., EC-COI-80-48 (employee of state agency may not represent private litigant on care and protection/adoption matters because those matters are ones in which the Commonwealth is a party); EC-COI-80-54 (assistant attorney general may not act as a mediator (in a privately sponsored program designed to remove certain matters from the court's docket) in any civil matter in which the Commonwealth has a direct and substantial interest, or in any criminal matter).

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This Commission has held that all judicial proceedings, even civil cases between private litigants, are particular matters within the meaning of the statute. EC-COI-82-132. Litigation between two private litigants in a judicial proceeding will not, however, automatically result in restrictions under c. 268A for former state employees. Such matters are not normally ones in which the Commonwealth or a state agency is a party or has a direct and substantial interest. See, e.g. EC-COI-82-132 (judicial civil proceedings, while "particular matters" within the meaning of c. 268A, s.1(k), are not generally matters in which the state has a direct and substantial interest); EC-COI-80-54 (ordinarily in a lawsuit between private parties, there is no state interest). Where, however, the Commonwealth is a party or has a direct and substantial interest in the outcome of the litigation, issues under s.5 are raised.

While it is obvious through examination of court papers when the state is a party to litigation ( EC-COI-80-54 ), there is a vast range of cases in which the Commonwealth is not a party but still may have a direct and substantial interest in the outcome of a matter, thus requiring analysis under s.5. See, e.g., EC-COI-80-108 (private action involved same claim previously investigated by former state employee); 85-73 (state had direct and substantial interest in bankruptcy proceedings of private company where Commonwealth prepared proof of claim for property damages caused by company's product); 85-16 (application by private company for Commonwealth grant money); 88-25 (state has a direct and substantial interest in referrals of district court "operating under" clients to private driver alcohol education program); see also,[7] EC-COI-85-8 (town may have a direct and substantial interest in outcome of application where town resident applies to state agency for waiver to develop a piece of land); 88-1 (litigation which implicates a city's rights and liabilities would be of direct and substantial interest to the city); 88-6 (town solicitor may not privately represent town councillor in connection with a case pending before Ethics Commission because town may later be subjected to litigation as a result of outcome); 88-7 (assistant city solicitor may not represent, for compensation, a criminal defendant arrested by city police in connection with a motion to suppress hearing).

In each of these cases, the Commission has looked to the ultimate impact upon governmental agencies. Where, for example, an outcome could cause a governmental agency (i) to expend public funds, or (ii) to take some action, or (iii) to be exposed to liability, or (iv) to otherwise implicate its rights or responsibilities, the government has been considered to have a direct and substantial interest.

In the present case, you describe the board as a "forum" to hear disputes between two private litigants. Accordingly, you would analogize such litigation to private civil litigation where the Commonwealth has no direct interest in the outcome of the dispute. Such an interpretation would permit you to now represent one of those private litigants (on appeal, for example) even where you personally and substantially participated in the same particular matter when it was pending in your agency. We conclude, however, that you may not do so.

Our conclusion is based upon the Department's specific institutional interest in the enforcement of the workers compensation law, and on the broad interest that the Commonwealth has in workers compensation matters generally. In Chapter 152, the Legislature expressed a clear concern for ensuring the enforcement of the workers compensation laws for the benefit, protection and safety of all employees within its borders. See, e.g., Swift v. American Mutual Insurance Company, 399 Mass. 373 (1987) (purpose of the act is to eliminate or reduce industrial hazards, as well as compensating injured workers); Ciszewski v. Industrial Accident Board, 367 Mass. 135 (1975) (Board has authority to promulgate rules concerning inspections of private businesses where industrial accidents occur). In addition, the Department has a direct interest in ensuring that its worker compensation rules are complied with. See, e.g., c. 152, s.25A which expressly empowers the Department to promulgate and enforce rules concerning compensation payment mechanisms; c. 152, s.25C which (a) empowers the Department to issue a stop work order, and levy monetary penalties, against any private company which does not comply with the Department's rules and regulations concerning workers compensation payment rules, (b) directs that all state and local licensing agencies withhold the issuance or renewal of a license/permit to operate any business not in compliance, and (c) empowers the Commissioner to bring complaints against employers for violations of this section, and to prosecute such complaints in the district court; c. 152, s.25G which establishes requirements for workers compensation self- insurance groups, including the holding of security deposits or bonds in an amount to be determined by the Commissioner of Insurance, sufficient to pay workers compensation and other claims and associated expenses in the event of insolvency of such groups. The security deposit is for "the benefit of the Commonwealth solely to pay" such claims. In other words, if such a group becomes bankrupt, the Commonwealth is potentially liable for workers compensation claims. In addition, the Commissioner of Insurance is appointed as each groups' attorney to receive service of legal process issued against it in the Commonwealth; and c. 152, s.6A which makes the division of administration responsible for monitoring the furnishing of workers compensation benefits by the employer or insurer to ascertain that correct benefits are being provided in cases accepted as compensable injuries.
Given the Commonwealth's broad interest in enforcing workers compensation laws for the safety and protection of all employees in the Commonwealth, and the Department's express statutory power and obligation to enforce those laws, we must conclude that the Commonwealth has a direct and substantial interest in all workers compensation matters. Accordingly, we do not view the Department as analogous to the courts of the Commonwealth, which have no interest in the outcome of

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any given judicial proceeding (except, perhaps, for the institutional interest of having their decisions upheld on appeal). See, EC-COI-84-9 (Commonwealth has direct and substantial interest in matters pending before Appellate Tax Board).

Finally, we note Attorney General Conflict Opinion No. 144 (August 1, 1963). That opinion suggested, in dicta that the Commonwealth might not have a direct and substantial interest in matters involving clients who have claims under the Workmen's Compensation Act in which the Commonwealth is not a party. No rationale was included. Based upon our review of present c. 152, however, we cannot reach the same conclusion. Although guided by prior Attorney General conflict opinions, the Commission is not bound by the conclusions stated therein. See, e.g., EC-COI-79-2; 79-7; 79-22. St. 1978, c. 210, s.24 (The Commission may modify or reverse prior opinions issued by the Attorney General).
In summary, if a given matter was one in which you either participated or was one which was under your official responsibility as the Commissioner, s.5 will apply to your activities on those matters, potentially restricting your work for any of the parties involved in that matter. See, M.G.L. c. 268A, s.s.5(a), 5(b).[8]
 


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[1] You recognize that the Commonwealth has a direct and substantial interest in all workers compensation matters which involve the Commonwealth as an employer. Your opinion request does not concern the representation of private parties in connection with those matters.

[2] "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. 26BA, s.1(k).

[3] "State agency," any department of a state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town. G.L. c. 268A, s.1(p).

[4] "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).

[5] "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).

[6] Note also that Section 5(c) will apply to "partners" of former state employees.

[7] These cases apply the analogous municipal sections, 1-7 and 18.

[8] Given your description of your previous responsibilities as Commissioner, it is unlikely that you will have personally and substantially "participated" in many of the cases which were pending in the Department. More likely, the one-year appearances ban of Section 5(b) will apply in your case, because all such matters would appear to have been within your official responsibility. You may wish to seek specific, additional advice as matters arise.

 

End Of Decision