| Date: | 12/20/1984 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
A full-time employee of the Governor's Office may leave to become a lobbyist, and may, within one-year of leaving that employment, lobby the General Court, the budget bureau and the Office of Human Services without violating G.L. c. 268A, § 5(e). The employee will be subject to the provisions of § 23 for the duration of employment in the Governor's Office.
You currently serve as a full-time employee in the governor's office. (Identifying information omitted). You are considering leaving the governor's office to work for ABC, a lobbyist. You plan to serve as a lobbyist before the legislative branch, the budget bureau of the Executive Office of Administration and Finance, and the Executive Office of Human Services.
During the one-year period after leaving the governor's office, does G.L. c. 268A permit you to serve as legislative agent before the General Court, the budget bureau, or the Office of Human Services?
You may serve as legislative agent before the General Court, the budget bureau and Office of Human Services, subject to the limitations set forth below.
As a full-time employee in the governor's office, you are a "state employee" for the purposes of G.L. c. 268A. The provisions of G. L. c. 268A apply to your activities both during the period in which you remain a state employee, and during the period following the termination of your employment with the governor's office.
As a state employee, you are subject to the standards of conduct contained in G.L. c. 268A, § 23. Two provisions are relevant to your situation. The first, § 23 (paragraph 2)(3) prohibits you from, by your conduct, giving reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official duties, or that you are unduly affected by the kinship, rank, position or influence of any party or person. Issues under this section would arise if, during the period of your negotiation or arrangement for future employment with ABC, you are called upon by the governor's office to review and make a recommendation concerning legislation in which ABC has been involved as legislative agent. Inasmuch as your current responsibilities are ministerial and do not include a substantive review of the merits of legislation, you will not be creating the impression of undue favoritism toward ABC in your official capacity. However, you should remain aware of the principles of this paragraph. Of greater importance are the restrictions contained in § 23(paragraph 3), which prohibit you from
(1) accepting employment or engage in any business or professional activity which will
require you to disclose confidential information which you have gained by reason of
your official position or authority; and
(2) improperly disclosing materials or data within the exemptions to the definition of public
records as defined by section seven of chapter four, and were acquired by you in the course
of your official duties nor use such information to further your personal interests.
In view of your insider status within the governor's office, you necessarily have access to strategic information concerning the governor's position on legislation. For example, in light of the expected legislative prorogation during December, you have access to information and strategy concerning bills which the governor intends to sign or pocket veto. Because both the information and strategy are confidential, you may not disclose them to ABC or use them to further your personal interests.[1]
Aside from the aforementioned confidentiality provisions, the only restriction in G.L. c. 268A relevant to your situation is § 5(e), which provides as follows:
A former state employee or elected official including a former member of the general
court, who acts as legislative agent, as defined in section 39 of chapter 3, for anyone
other than the commonwealth or a state agency before the governmental body with
which he has been associated within one year after he leaves that body, shall be
punished by a fine of not more than three thousand dollars or by imprisonment for not
more than two years, or both.[2]
The one-year bar would clearly apply to your legislative agent activities before the governor's office, but would not apply to your activities before the General Court. Whether § 5(e) would also apply to your activities before the budget bureau and Office of Human Services, which are agencies within the executive branch, is less clear. The Commission has not previously addressed the question of whether the scope of the term "governmental body" in G.L. c. 268A, § 5(e) applies to all executive branch agencies or merely the particular state agency at which the person was employed. For the reasons stated below, the Commission advises you that the § 5(e) restriction will apply only to your activities before the Governor's office.
The term "governmental body" is defined neither in G.L. c. 268A, § 5(e) nor in the definition provisions of G.L. c. 268A, §1. However, the term is defined in G.L. c. 268B, § 1(h).[3] and the Commission concludes that the General Court intended the G. L. c. 268B definition of "governmental body" to apply to G.L. c. 268A, § 5(e) as well.
Both G.L. c. 268B and G.L. c. 268A, § 5(e) were enacted in 1978 as the culmination of an effort to strengthen the public's confidence in its officials. See, 1978 House Doc. No. 5151; St. 1978, c. 210. Moreover, both the Supreme Judicial Court and Commission have confirmed the relationship between G. L. c. 268A and G.L. c. 268B; specifically, that financial information disclosed through G.L. c. 268B may identify potential violations of G.L. c. 268A. See, Opinions of the Justice, 375 Mass. 795, 810, 811; In the Matter of John R. Buckley, 1980 Ethics Commission 2, 8. Because the two laws were enacted contemporaneously and relate to the same subject, the G.L. c. 268B definition of governmental body may be appropriately applied to G.L. c. 268A, s.5(e) as well. See, Commonwealth v. Baker, 368 Mass, 58(1975); Pereira v. New England LNG Co. Inc., 364 Mass, 109(1973).
For the purposes of G.L. c. 268B, the governor's office is treated as a different governmental body from the executive offices such as administration and finance and human services. Not only does the G.L. c. 268B, § 1(h) definition distinguish state agencies, but also G.L. c. 268B, § 3(j) expressly identifies the governor's office as a separate governmental body from the executive offices. See, G.L. c. 268B, §3(j)(8), (9).[4]
The application of the definition of governmental body rests on the name and organizational location of the agency rather than on the functional accountability of one agency to another. Had the General Court intended to incorporate into the definition those agencies which are functionally accountable, it could have done so. Cf. EC-COI-80-66 (application of § 4 to special state employees in matters pending in their state agency turns on operational dependence of state agencies). Even accepting that the budget bureau plays a role in the governor's budget process, the governor has a deliberative function separate from the budget bureau in determining budget priorities, deciding how much to recommend in each line item of the annual budget, deciding whether to veto a line item passed by the General Court, and deciding whether and when to release funds. The purpose of G.L. c. 268A, § 5(e) was to establish a one-year cooling off period for former state employees who might otherwise be in a position to take undue lobbying advantage of former associates whose loyalties they acquired as state employees. The budget bureau is an agency within the fiscal affairs division of the Office of Administration and Finance, which in turn is an agency under the governor. See, G.L. c. 7. § 4B; c. 6, § 17; c. 7, § 4. In view of the intervening state agency layers between the budget bureau and governor's office, you will not be in a position to take undue lobbying advantage of your former associates.
Accordingly, the § 5(e) restrictions will not apply to your legislative agent activities before the budget bureau or the Office of Human Services.
End Of Decision
