May 14, 1992

 

FACTS:


Page 410

You are the former General Counsel of the Massachusetts
Department of Environmental Protection (DEP). You were last
employed in that position on July 12, 1991. You are now considering
submitting a bid for a contract to provide legal services to
another state agency.
 


QUESTIONS:

Given the above facts:

1. will you be barred from appearing before any court or
agency of the Commonwealth in connection with any particular matter
which was under your official responsibility at DEP for a period of
one year after your last employment in your contemplated contract
position with another state agency?

2. if you become a special state employee by virtue of your
contemplated contract with another state agency, for purposes of
the application of 4 of G.L. c. 268A, would the clause limiting the
scope of that section by virtue of the number of days of service
during the past year apply only to time served as a special state
employee?
 


ANSWER:


1. No, 5(b) of the conflict of interest law prohibits your
appearance before any court or agency of the Commonwealth in
connection with any particular matter which was under your official
responsibility while at DEP for a period of one year from your last
employment by DEP, notwithstanding any subsequent services provided
to the Commonwealth or one of its agencies.

2. Yes, those provisions of s.4 concerning special state
employees refer only to service as a special state employee.
 


DISCUSSION:


Upon the termination of your position with the DEP, you became
a former state employee for purposes of G.L. c. 268A. If you are
successful in contracting with another agency of the
Commonwealth, you will again become a state employee, but most likely, 
a special state employee.[1]


1. Section 5(a)


Section 5(a) prohibits a former state employee from acting as
an agent or attorney for or receiving compensation directly or
indirectly from anyone other than the Commonwealth in connection
with[2] any particular matter[3] in which the state or a state
agency is a party or has a direct and substantial interest and the
matter was one in which the employee officially participated.[4]
Therefore, in regard to matters in which you officially
participated as a DEP employee, this section will restrict
indefinitely your ability to act as agent or attorney for or
receive compensation from anyone other than the Commonwealth.

Page 410

We note that participation may be found with regard to legal
matters which were pending during your DEP employment, where you
did not personally handle the matter, but rather, you supervised
the work of subordinates. See EC-COI-89-7 (a state employee's
participation in discussion or approval of subordinate's
recommendation is more than ministerial in nature); EC-COI-79-57
(in the case of a state agency general counsel who consulted
occasionally with the Office of the Attorney General as well as his
agency's legal staff concerning a particular case, that employee's
awareness and tacit approval of the work of direct subordinates
concerning the case constitutes participation).


2. Section 5(b)


Section 5(b) prohibits a former state employee from personally
appearing[5] before any court or agency of the Commonwealth within
one year after leaving state service in connection with any
particular matter in which the state or a state agency is a party
or has a direct and substantial interest and if the matter was
under the official responsibility[6] of the employee within the two
years prior to the termination of such state employment.

If, for example, you had official responsibility for several
attorneys who made their own litigation decisions (you did not
supervise their work) you would still be restricted from personally
appearing before any court or state agency for a period of one year
in connection with those matters handled completely by your
subordinates during your final two years in your DEP position. Such
matters were under your official responsibility as general counsel,
notwithstanding the fact that you did not participate in them.

Based upon your facts, under s.5(b), you may not appear before
a court or agency of the Commonwealth until July 12, 1992 in
connection with a particular matter which was under your official
responsibility between July 12, 1989 and July 12, 1991. This is so
because we will interpret the time limits set out in 5(b) to apply
to your employment with the DEP, notwithstanding any future
contract employment with an agency of the Commonwealth. See
EC-COI-79-8
(5(a) and 5(b) are not applicable to a contract with
another state agency because employee is not receiving compensation
from or acting on behalf of anyone other than the Commonwealth);
see also EC-COI-88-12 (former state employee provisions do not
apply to one who resigns one state job in order to accept another
concerning ability to act in second state position).[7]


3. Section 4


The prohibitions of 4 will apply to you in your contract
position as a special state employee. See EC-COI-82-114. Section 4
generally prohibits a state employee from receiving compensation
from, or acting as attorney or agent for, anyone other than the
Commonwealth in connection with a particular matter in which the
Commonwealth is a party or has a direct and substantial interest.
See EC-COI-92-2. These restrictions apply in a less restrictive
manner to special state employees. Accordingly, as a special state
employee, you would be prohibited from receiving compensation from,
or acting as an agent or attorney for, anyone other than the
Commonwealth only in relation to a particular matter which (a) you
have participated in as a state employee, (b) is or within one year
has been a subject of your official responsibility, or (c) is
pending within the state agency in which you are serving. We note
that clause (c) is not applicable to a special state employee who
serves (in his special state employee position) on no more than
sixty days during any period of three hundred and sixty-five days."

Your opinion request raises the issue of the simultaneous
applicability of the restrictions of s.s.4 and 5. In EC-COI-79-2
the Commission advised a former assistant district attorney, who
was engaging in private practice and then sought to contract with
the district attorney's office as a special district attorney, that
he would be subject to the prohibitions of 5(a) and 5(b) with
regard to his private practice in light of his previous work as an
assistant district attorney. The Commission went on to advise of
the applicability of 4 to the attorney as a special state employee
in light of his work as a special assistant district attorney, thus
implicitly recognizing that the restrictions of 5 continue to
operate even as to a current special state employee.

As applied to you as a special state employee, 4 is ambiguous
because a literal reading of the statute does not make clear
whether the restrictions on your private activities relate to your
former state service (at DEP) in addition to your contemplated work
as a special state employee (rather than merely from your special
state employee work). For example, 4 prohibits a special state
employee from receiving compensation from anyone

Page 411

other than the Commonwealth in connection with a particular matter
in which the employee has participated as a state employee.
However, the statute does not specify that participation "as a
state employee" refers to participation only in the current role as
a special state employee. We find that the statute should be so
construed, although the effect of such an interpretation appears to
be of no relevance with regard to your situation. Because of the
application of 5(a) to all matters in which you participated as a
DEP employee, you are already prohibited under that section
regardless of whether we interpret "as a state employees, as found
in 4, to include matters in which you participated at DEP as
opposed to only those matters in which you will participate as a
special state employee.

With regard to the provision of 4 which applies to special
state employees concerning matters that are or have been under
their official responsibility, we will similarly interpret that
language in 4 to apply only to matters under the official
responsibility of the special state employee. See EC-COI-79-2.
Therefore, in your case, you will be restricted by 4 as a special
state employee from receiving compensation or acting as an agent or
attorney for anyone other than the Commonwealth in connection with
any particular matter which is or within one year has been under
your official responsibility as a special state employee. We remind
you, however, that 5(b) will continue to prohibit your appearance
before any court or agency of the Commonwealth for a period of one
year from the date when you left your DEP position in connection
with matters which were under your official responsibility at DEP
during your last two years of service at that state agency.
However, s.5(b) does not restrict your mere receipt of compensation
in connection with those DEP matters which were under your official
responsibility.

*Pursuant to G.L. c. 268B, 3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

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

[1] "Special state employee," a state employee:

1. who is performing services or holding an office, position,
employment or membership for which no compensation is
provided, or

2. who is not an elected official and

(a) occupies a position which, by its classification in the
state agency involved or by the terms of the contract or
conditions of employment, permits personal or private
employment during normal working hours, provided that
disclosure of such classification or permission is filed in
writing with the state ethics commission prior to the
commencement of any personal or private employment, or

(b) in fact does not earn compensation as a state employee for
an aggregate of more than eight hundred hours during the
preceding three hundred and sixty-five days. For this purpose
compensation by the day shall be considered as equivalent to
compensation for seven hours per day. A special state employee
shall be in such a status on days for which he is not compensated not compensated as well as on days on which he earns compensation.
G.L. c. 268A, 1(o).

[2] We emphasize the "in connection with" language found in
s.5(a) and (b). Compensation and/or representation may be
prohibited if sufficiently related to the former state employee's
prior work. We therefore advise that you seek additional advice
from us if you contemplate working on a matter which is related to
a particular matter in which you participated or which was under
your official responsibility while at DEP.

[3] "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, 1(k).

[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, 1(j).

[5] The Commission has previously interpreted "personally
appearing" to include, in addition to physically appearing before
a court or agency of the

Page 412

Commonwealth, contacting an agency or court in person or in
writing. See EC-COI-87-27.

[6] "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, 1(i).

[7] Presumably the 60 day limitation found in this portion of
4 applies to state employment in the special state employee
position since it modifies clause (c), which refers to particular
matters which are pending in the state agency in which the special
state employee is serving (emphasis added). Therefore, the 60 days
of service must also refer to the employee's service as a special
state employee. In your case, if your contemplated contract
employment will be for 60 days or less, then you will not be
restricted by 4 concerning matters which are pending in the agency
by which you will be employed, but in which you are neither
participating as a special state employee, nor are part of your
official responsibility in that position.
 

End Of Decision