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May a former employee of a state Commission appear before the Mass. Division of Hearing Offices to represent client who is aggrieved by an action of the Commission the employee was formerly employed by?
All identifying information has been deleted from this opinion as required by Chapter 268B, section 3(g).
You were employed at a state commission between February, 1978 and September, 1979. You ask whether consistent with the Conflict of Interest Law, General Laws Chapter 268A, you may now appear before the Massachusetts Division of Hearing Offices to represent a client who is aggrieved by the action of the same commission in making a particular determination. The Commission concludes that you may.
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.
At the state commission, you were employed at (name of division). Your (general description of duties.). Between December, 1978 and April, 1979, you were one of several people assigned to draft a new set of regulations and cost reports. Those particular regulations are no longer in effect but have been superseded by a single regulation (citation omitted) many sections of which remain substantially the same. In substance, the regulations establish a procedure for making certain determinations.
You are a former state employee and therefore subject to the prohibitions set out in section 5 of Chapter 268A. Section 5(a) prohibits you from acting as agent or attorney for, or receiving compensation from, anyone other than the state in connection with any particular matter in which the state is a party or has a direct and substantial interest and in which you participated as a state employee. Particular matter is defined in section 1(k) as "any judicial or other proceeding, application, submission, request for ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding but excluding enactment of general legislation by the General Court."
Regulations and rule-making activity are not expressly mentioned in the definition of "particular matter." However, what has been stated about the objectives of the ABA Cod of Professional Responsibility is applicable to the objectives of the Conflict of Interest Law, to wit, "[u]niversal exclusion of rule-making activity as the basis for post-government restrictions is not acceptable . . . but . . . an approach which precludes all post-government professional activities in a rule-making area with which an official had some connection during government service would be unnecessarily harsh and would impede recruitment to responsible positions in government." R.E. Jordan, III, Ethical Issues Arising from Present and Past Government Service, in ABA, Professional Responsibility: A Guide for Attorneys, 196 (1978). To strike the appropriate balance between these two considerations, the Commission concludes that regulations in an of themselves are not particular matters. However, the process by which they are adopted and the determination that was initially made as to their validity will be considered particular matters. A subsequent challenge to, or controversy surrounding, the validity of regulations will be considered "in connection with" that initial determination as to their validity. And one who participated in the drafting of the regulations will generally be deemed to have participated in that determination. Otherwise, the public could conclude that in challenging regulations which he had participated in drafting, an attorney was "in essence seeking to tear down that which he had helped to build." M.H. Gordon & Son, Inc. v. ABCC, Suffolk Superior Court Nos. 38250, 37348, 8MLW654. "Where a former government attorney challenges a regulation with which he had some contact, there is an appearance of evil. In addition, he may be taking advantage of weakness that he discovered while in government service." Jordan, supra, at p. 196, 65. Cf. EC-COI-79-57 and EC-COI-81-8.
Whether the activity of a former state employee will be considered a challenge to regulations or merely related to their interpretation or application must, of course, be decided on a case by case basis. Here, your contention is not that the regulations are invalid, but that the action of the state commission is inconsistent with those regulations. Accordingly, the Commission concludes that section 5(a) would not prohibit the activity you wish to undertake.
Compare the exclusion in section 1(k) with respect to general legislation. The exclusion speaks not of "general legislation" but the "enactment of general legislation."
End of Opinion