Opinion  EC-COI-81-162

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

A former state employee may work for a private organization in particular matters related to the former employee’s state agency, subject to post-employment restrictions. G.L. c. 268A, § 5 prohibits the former state employee from acting as agent or receiving compensation in connection with challenges to regulations the employee helped draft or approve, as those are particular matters in which the employee participated. The former employee may, however, advise on policy, assist with compliance, and work on matters involving regulations developed after the employee’s departure. For one year after leaving state service, the former employee is also prohibited from appearing before state agencies in matters that were under the employee’s official responsibility.

Facts

You were the Deputy Director of a program (Program) of a state agency (ABC) until your resignation in 1981. You are presently the Director of Government Programs for a private organization (DEF).

Question

You ask the Commission for general guidance with regard to the limitations, if any, that you may be subject to in your new position under the conflict of interest law, G.L. c. 268A.

Discussion

In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts. As the Program Deputy Director, you were responsible for reviewing proposed policy and approving drafts of regulations. You also supervised the Director of units responsible for Administration, Program Control, Program Operations, Systems Development, and Policy, Planning and Compliance. In your present position with DEF, you are only involved with particular issues and you would like to know the extent to which you can represent various entities who are part of DEF in these matters. Since you have resigned from state service, the provisions applicable to former state employees, s.5, will apply to you. Section 5(a) prohibits you from ever knowingly acting as agent or attorney for, or receiving compensation from, anyone other than the Commonwealth or a state agency in connection with any particular matter^[1] in which the Commonwealth is a party or has a direct and substantial interest and in which you participated^[2] as a state employee. Regulations are not expressly included in the definition of "particular matter". However, in order to avoid unwarranted restrictions on those who leave public service after participating in the drafting of regulations, the Commission has concluded the regulations in and of themselves are not particular matters. However, the process by which they are adopted, including the drafting of the regulations, and the determination that was initially made as to their validity will be considered particular matters. See, EC-COI-81-79; 81-34.

Decision

Therefore, since you participated in reviewing and approving regulations, you would be barred forever from acting as agent or attorney for or receiving compensation from anyone other than the Commonwealth in a subsequent challenge to the validity of regulations which you help draft because that would be considered "in connection with" that particular matter in which you participated. However, you may clarify Program policies for DEF, check on the implementation of policy and instruct members of DEF on how to comply with Program policies. Furthermore, you may represent DEF's interests in challenging any regulations that were promulgated subsequent to your resignation if you did not participate in drafting them. You may also provide DEF with public information on the distribution of Program results as long as you are not doing so pursuant to challenging the basis of the information. Section 5(b) prohibits you, for one year from appearing personally before any court or agency of the Commonwealth in connection with any particular matter as previously described, which was under your official responsibility during the last years of your state employment.^[3] This section expands the prohibition against personal appearances beyond those matters in which you participated to include all matters within your official responsibility. Therefore, for one year from your date of resignation, you would be prohibited from appearing before any state court or state agency in any particular matters over which you had official responsibility during your last two years of state service. This prohibition would include any particular matters in the several units which were under your supervision. However, based on the general information which you have provided, the Commission cannot be more specific on the extent of the limitations which s.5(b) imposes on you. If you have any further questions based upon actual situations, please feel free to contact the Commission.

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] For the purposes of G.L. c. 268A, "participate" is defined as participate in agency action in a particular matter personally and substantially as a state, ... employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[3] For the purposes of G.L. c. 268A, "official responsibility" is defined as the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinate to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s.1(i).