Opinion  EC-COI-81-161

Date:	12/01/1981
Organization:	State Ethics Commission

A former state employee may advise clients and appear before a state agency regarding regulations, provided certain limitations are observed. G.L. c. 268A, § 5 prohibits the individual from acting as agent or attorney in connection with challenges to the validity of regulations in whose development the employee participated while in state service. However, the former state employee may advise clients and represent them in matters involving regulations that are substantively different from those in which the employee previously participated.

Facts

For four years you served as Director of a Division of the Attorney General. In 1978, you became Chairman of a Blue Ribbon Task Force (Task Force) established by another state agency (ABC) to develop a set of regulations pursuant to a new statute. After leaving the Attorney General's office for private practice, you continued to serve as Task Force Chairman until the spring of 1980 and were paid to do so by ABC. The Task Force developed a set of regulations that were neither published nor promulgated. Later, a new task force was set up which drafted another set of regulations different in substance from those on which you and your Task Force worked. These regulations have been published for public comment.

Question

You ask whether you may advise legal clients and comment to the state on their behalf in regards to these and other regulations without violating the state conflict of interest law, G.L c. 268A.

Answer

The Commission concludes that you may.

Discussion

In rendering this opinion, the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts. You are a former state employee and, therefore, subject to the prohibitions of s.5 of G.L. c. 268A. Section 5(a) prohibits you from acting as agent or attorney for anyone other than the Commonwealth in connection with any "particular matter"^[1] in which the state is a party or has a direct and substantial interest and in which you participated as an Assistant Attorney General or Chairman of the Task Force. In the past, the Commission has ruled that not all post-government activity with respect to regulations with which a state employee had some connection during state service is prohibited, but, that s.5 considerations only arise when the former state employee challenges the validity of those regulations on his or another's behalf. See, EC-COI-81-34, 81-35.

Decision

Therefore, although you may not appear as agent or attorney for anyone other than the Commonwealth in connection with a challenge to the validity of regulations in whose drafting, publication or promulgation you participated, you are not restricted in advising clients on and appearing in their behalf concerning the ABC regulations.^[2]

End Of Decision

[1] For the purposes of G.L. c. 268A, "particular matter" is defined as 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. G.L. c. 268A, s.1(k).

[2] If, as you indicate, the regulations published by ABC are so different in substance and content that they are unrelated to any of the work of your Task Force, then you did not "participate" in regards to those regulations and could even challenge their validity without restriction.