Docket No.: 248
Date: January 20, 1984
This disposition agreement ("agreement") is entered into between
the State Ethics Commission ("Commission") and Cornelius J. Foley,
Jr. ("Mr. Foley") pursuant to section 11 of the Commission's
Enforcement Procedure. This agreement constitutes a consented to
final order of the Commission enforceable in superior court under
G. L. c. 268B, s.4(d).
On February 4, 1983, the Commission initiated a preliminary
inquiry into possible violations of G.L. c. 268A, s.5(e), by Mr.
Foley, formerly employed as the principal administrative assistant
to the Health Care Committee of the Massachusetts House of
Representatives and subsequently (and currently) employed as
Director of Government Affairs by the Massachusetts Medical Society
("MMS"). The Commission concluded that preliminary inquiry and, on
December 13, 1983, found reasonable cause to believe that Mr. Foley
had violated chapter 268A.
The parties now agree to the following findings of fact and
conclusions of law:
1. Mr. Foley was principal administrative assistant to the House
Health Care Committee from approximately 1979 until July 1981. As
such, Mr. Foley was a state employee, as that term is defined in
s.1(q) of G.L. c. 268A.
2. Before he left the legislature, Mr. Foley sought and received
an advisory opinion from the Commission concerning any limitations
imposed by chapter 268A on his activities on behalf of his
prospective employer, the Massachusetts Medical Society ("MMS").
3. The Commission's opinion (EC-COI-81-80, dated June 30, 1981)
advised Mr. Foley that s.5(e) of G.L. c. 268A prohibited him, for
one year after leaving state service, from acting as a legislative
agent as that term is defined in s.39 of Chapter 3 for anyone other
than the Commonwealth before the governmental body with which he
was then associated. The Commission's opinion concluded that Mr.
Foley could not therefore act as a "lobbyist on behalf of MMS
before either branch of the General Court" for the year after he
left. The opinion referred Mr., Foley to an opinion by the attorney
general for general guidance in the area of what activities on his
part, on behalf of MMS, more specifically would constitute lobby.
4. Mr. Foley began work for MMS on July 13, 1981 as its Director
of Government Affairs. In this position, his responsibilities
included identifying matters coming before the legislative and
executive branches of state government that were of interest to the
MMS membership, following the progress of those matters and
reporting on their status to the appropriate MMS personnel and
5. During the course of the year in which s.5(e) restricted his
activities (July 13, 1981 - July 12, 1982), Mr. Foley obtained from
MMS's principal legislative agent information about legislation,
which Mr. Foley
communicated to MMS. Mr. Foley also communicated MMS's positions
on different pieces of legislation to MMS's principal legislative
agent, who used this information in his own lobbying activities
for MMS, including such activities before the General Court,
between July 13, 1981 and July 12, 1982.
6. During the legislature's closing sessions in December 1981,
Mr. Foley, according to his expense memorandum, "remained on the
hill during the late night sessions because we (MMS) had several
important pieces which we were following, and which could have gone
either way if there was no one to answer late night inquiries or
give other information concerning such issues if necessary."
7. Also during the course of his first year with MMS, Mr. Foley
participated in discussions of MMS's strategy on particular pieces
of legislation. He helped draft letters to legislators from MMS
concerning MMS's stand on different bills. These letters went out
under the signatures of MMS's president and the chairman of its
committee on legislation.
8. In addition, Mr. Foley, during the July 13, 1981 - July 12,
1982 period, wrote to the president of the Massachusetts
Radiological Society suggesting that the society send letters in
support of MMS's opposition to a bill to particular legislators in
addition to those to whom the radiologists had already written.
9. By the actions described above in paragraphs 5-8--
communicating information about legislation and MMS's positions to
and from MMS and MMS's principal legislative agent, helping to
formulate and articulate those positions, and soliciting and
assisting the lobbying activities of others by participating in the
drafting of letters to legislators and by advising others how most
effectively to support MMS's positions Mr. Foley violated s.5(e)
of chapter 268A.* That section prohibited him from acting as a
legislative agent on MMS's behalf before the General Court, and
those actions constituted acting as a legislative agent.
10. 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" (emphasis
added). (Section 5(e) of chapter 268A cites this definition in
identifying the activities to which it applies.) In addition, the
preamble to the statute enacting G. L. c. 3 states that lobbying
activities are reimbursed efforts to persuade legislators to take
specific legislative action both by "direct communications" to
members of the General Court and by "solicitation of others to
engage in such efforts." (This part of the preamble was quoted in
the attorney general opinion referenced in the Commission's
advisory opinion to Mr. Foley.)
In the Commission's view, this broad concept of lobbying
promotes one of s.5(e)'s purposes: to prevent a former legislator
or legislative staff member from using his special knowledge of or
access to the General Court to promote private interests during his
first year away from that body. The need to insulate the
legislative process from the former employee's inevitable special
knowledge and access during this initial period is the same
whether the former employee is doing the lobbying directly or is
instead advising and directing the lobbying activities of someone
11. For all these reasons, Mr. Foley should have known that his
activities as described in paragraphs 5-8 herein violated s.5(e).
At a minimum, Mr. Foley should have appreciated the risk that they
did and asked for clarification.
Based on the foregoing, the Commission has determined that the
public interest would be served by the disposition of this matter
without further Commission enforcement proceedings on the basis of
the following terms, to which Mr. Foley has agreed:
(a) that he pay to the Commission the sum of $500.00 forthwith
as a civil penalty for violating G.L. c. 268A, s.5(e), by
acting as a legislative agent on behalf of his private
employer on legislative matters within one year of leaving the
staff of the legislature; and
(b) that he waive all rights to contest the Frndings of fact,
conclusions of law and terms contained in this agreement in
this or any other related administrative or judicial
proceeding in which the Commission is a party.
* During the course of its preliminary inquiry. the Commission
found insufficient evidence for reasonable cause to believe that
Mr. Foley had violated G.L. c. 268A, s.5(e) by directly lobbying
legislators or their aides.
End Of Decision