Until 1978, you were an employee of an Executive Office (the office). You now work full time as an attorney for ABC Company (ABC), a private organization.
You have requested an opinion whether the provisions of the conflict of interest law, G.L. c. 268A, require you to restrict your activities as an attorney for ABC in any way. Specifically, you ask about possible restrictions c. 268A might impose on your appearing before agencies under the jurisdiction of the office in connection with matters which ABC has pending before those agencies.
We conclude that G.L. c. 268A precludes you only from working as an attorney for ABC on any individual regulatory proceeding or matter in which you previously participated as a state employee. This prohibition applies to those matters which were pending in the various agencies under the office's jurisdiction in which you participated, as well as to matters directly within office itself. Our reasons are explained below.
The executive office oversees a number of state agencies. The duties of the Secretary of the office include review of budget requests and reports of all constituent agencies, as well as duties of a general supervisory nature. (Citation omitted.) However, no statute delineates the duties of your former position. We turn therefore to the description of your duties you have provided. You are an attorney and a member of the bar of the Commonwealth. In your capacity as a state employee, you advised the Secretary concerning his legal responsibilities, drafted and reviewed proposed legislation, and wrote legal memoranda regarding activities of the office and its agencies. You indicate that you did not review or participate in any regulatory decisions of agencies within the office's jurisdiction. You also state in your letter that ABC conducts activities regulated by several agencies within the jurisdiction of the office. You seek our advice because you are concerned about your ability to represent ABC on regulatory matters pending before those agencies.[1]
In the position you held, you were a "state employee" as that term is defined in G.L. c. 268A, § 1(g), and thus are now a former state employee. General Laws, c. 268A, § 5, governs the conduct of former state employees, and both § 5(a) and (b) have relevance to you. Section 5(a) prohibits a former state employee from receiving compensation from or acting as attorney for anyone other than the Commonwealth of a state agency, in connection with any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest, and in which she participated as a state employee. Licensure, certifications, applications, and other similar matters which ABC may have pending before agencies within the office are clearly "particular matter[s]"[2] of direct and substantial interest to those agencies and thus to the Commonwealth. By its terms, § 5(a) precludes your working as an attorney for ABC in relation to any such matters if you "participated"[3] in them while serving as a state employee.[4] See, e.g., Conf. Op. Atty. Gen. Nos. 845, 642. You may of course work on any applications or other matters which ABC may have filed with those agencies after you left you state position, since by definition you could not have participated in them as a state employee. See, Conf. Op. Atty. Gen. No. 845.
Turning to G.L. c. 268A, § 5(b), that section regulates the activities of former state employees with respect to personal appearances before any Massachusetts court or agency. In particular, § 5(b) prohibits a former state employee from appearing...personally before any court or agency of the commonwealth as agent or attorney for anyone other than the commonwealth in connection with any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest and which was under his official responsibility at any time within a period of two years prior to the termination of his employment...(emphasis supplied.) The critical term in s. 5(b) is "official responsibility". The conflict statute defines it as...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). You have stated that your particular duties as a state employee did not include reviewing or participating in any regulatory decisions of any agency within the office. Moreover, the statues defining the functions of the office and its secretary indicate that review of such regulatory decisions are not generally within the purview of the office. See Conf. Op. Atty. Gen. No. 704.
On the facts presented, we conclude that regulatory matters concerning ABC which were before various agencies other than the office itself were not within your "official responsibility" as a state employee even if they were pending while you still served in your position.[5] CF. Conf. Op. Atty. Gen. No. 848; compare Conf. Op. Atty. Gen. Nos. 841 and 845. Accordingly, G.L. c. 268A, § 5(b) imposes no limitations on your ability to represent ABC before the agencies within the jurisdiction of your office with respect to such matters, provided, as stated above, that you did not participate in the matters.
