As of January 1, 2010, will a former state employee violate c. 268A, § 5(e) by engaging in strategizing, planning, and research as part of lobbying-related activities, if the former employee does not personally make any "lobbying communications," as that term is used in c. 3, § 39, to the governmental body with which he or she was formerly associated?
No. Pursuant to c. 3, § 39, a person is not within the definition of an executive or legislative agent unless he or she has "at least one lobbying communication with a government employee." Therefore, a former state employee does not violate c. 268A, § 5(e), which prohibits "act[ing] as legislative or executive agent" before one's former agency for one year after leaving state employment, unless he or she has "at least one lobbying communication with a government employee."
Two former state employees seek guidance under G.L. c. 268A, § 5(e), in light of recent amendments to that statute, and to the definitions of "legislative agent" and "executive agent" set forth in G.L. c. 3, § 39 and referenced in § 5(e). One former state employee was employed by the General Court, and the other by the Executive Branch; both currently work for entities engaged in lobbying. Both former employees wish to conform their conduct to the law as amended by Chapter 28 of the Acts of 2009.
Employees of the General Court and of the Executive Branch are state employees for purposes of the conflict of interest law.
Section 5 regulates the actions of former state employees. Section 5(e) provides that a former state employee or elected official "who acts as legislative or executive agent, as defined in section thirty-nine of chapter three, for anyone other than the commonwealth or a state agency before the governmental body as determined by the state ethics commission with which he has been associated, within one year after he leaves that body," violates the conflict of interest law.
Five years ago, in Advisory Opinion EC-COI-05-3, the Commission addressed the restrictions § 5(e) imposed on a former employee of the General Court who wished to act as a legislative agent before the General Court. We concluded then that § 5(e) prohibited a former legislative employee not only from directly lobbying his former governmental body, but also from indirect "strategic lobbying." We explained that "strategic lobbying" included developing strategies for one's current employer to use in opposing or supporting relevant legislation, assisting activities in planning which legislators to contact, drafting letters to be signed under a third party's signature, strategizing with an employer or client on which legislative districts to target, obtaining information on legislation from legislative agents, and discussing an employer's position on legislation with a legislative agent. Under EC-COI-05-3, any of those activities could be considering lobbying for purposes of § 5(e) even in the absence of any contact between the former state employee and any government employee.
We agree with the requestors that changes in the relevant statutory language made as part of Chapter 28 of the Acts of 2009, subsequent to our issuance of EC-COI-05-3, require us to reconsider our former opinion, and to reach a different conclusion.
At the time we decided EC-COI-05-3, § 5(e) prohibited former state employees from "act[ing] as [a] legislative agent, as defined in section thirty-nine of chapter three," for anyone other than the state, within one year of leaving state service. A "legislative agent" was defined by c. 3, § 39 as any person "who for compensation or reward does any act to promote, oppose or influence legislation, or to promote, oppose or influence the governor's approval or veto thereof." (Emphasis added)[1] Relying upon the statutory words "any act," we concluded that " all actions undertaken with the purpose of promoting, opposing or influencing legislation or the governor's approval or veto thereof are the types of activities in which a legislative agent engages," and that, therefore, a person who engaged in such activities "for compensation or reward" within one year of leaving public service and before his or her former agency would violate the statute, "whether that activity is labeled as public advocacy, strategic lobbying, or direct lobbying."
Chapter 28 of the Acts of 2009 amended the statutory language on which our earlier opinion was based in several pertinent respects. First, it added a reference to executive as well as legislative agents. In addition, and determinative here, Chapter 28 significantly rewrote the definition of "legislative agent," added a parallel definition of "executive agent," and added new definitions of "executive lobbying" and "legislative lobbying." As revised, the definition of a "legislative agent," and the new, parallel definition of an "executive agent," both omit the critical "does any act to promote, oppose, or influence" language upon which our prior opinion relied. Furthermore, the new definitions of "executive agent" and "legislative agent" both specify instead that to be an executive or legislative agent, a person must engage in "at least one lobbying communication with a government employee."[2]
It is true that the definitions of "executive lobbying" and "legislative lobbying" in the amended statute include the strategizing, planning, and research activities that we previously categorized as "strategic lobbying" within the one-year prohibition of § 5(e). However, § 5(e) prohibits former state employees from "act[ing] as legislative or executive agent" before their former agencies within one year of leaving state service - not from "executive lobbying" or "legislative lobbying." In interpreting revised § 5(e), therefore, we look to the revised definition of "legislative agent" and the new definition of "executive agent," and not to the new definitions of "legislative lobbying" and "executive lobbying."
The new statutory definitions of "executive agent" and "legislative agent" are clear and unambiguous, and must be given effect. Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123, 124 (2006); Casey v. Mass. Electric Co., 392 Mass. 876, 880 (1984). The express legislative statement that to be an "executive agent" or a "legislative agent" there must be "at least one lobbying communication with a government employee made by said person," combined with the elimination of the former "any act" language, establishes that a person does not act as an executive or legislative agent unless he or she has "at least one lobbying communication with a government employee." Consequently, a former state employee does not violate § 5(e) by engaging in lobbying activity unless he or she has "at least one lobbying communication with a government employee."
In addition to the changes described above, Chapter 28 of the Acts of 2009 gave the Secretary of State regulatory power and the power to issue advisory opinions on the requirements of c. 3, §§ 39-50. Our conclusion that a former employee acts as an executive or legislative agent only when he or she engages in at least one lobbying communication with a government employee is consistent with a January 21, 2010 informal opinion of the Secretary, concluding that "absent a direct, personal communication with a covered legislative or executive official by an individual, the participation of that individual in strategizing, planning and research activities does not trigger registration."
In sum, we conclude that the changes in c. 3, § 39 and c. 268A, § 5(e) require that, to the extent that EC-COI-05-3 held that "strategic lobbying" of one's former agency within one year after leaving state service, absent a direct lobbying communication with a government employee, would violate § 5(e), it should be overruled. A former state employee acts as an executive or legislative agent for purposes of § 5(e) only when he or she has "at least one lobbying communication with a government employee," and the other requirements of § 5(e) and of c. 3, § 39 are met.
The requestors have not asked us to interpret the statutory phrase "lobbying communication." Absent any expression of opinion about the meaning of this phrase from the Secretary of State, who is charged with its interpretation, we do not address the interpretation of that phrase.
For the above-stated reasons, we conclude that the conflict of interest law, G. L. c. 268A, § 5(e), permits a former state employee to engage in "strategic lobbying," including strategizing, planning, and research, as part of lobbying-related activities, as long as the former state employee does not have at least one lobbying communication with a government employee.
