Opinion  EC-COI-84-45

Date:	03/27/1984
Organization:	State Ethics Commission
Location:	Boston, MA

Section 5 will not prohibit a former member of a state hazardous waste site safety council who participated in awarding a technical assistance grant to a town local assessment committee from providing legal services to the committee in connection with negotiations with a site developer.

FACTS

From 1980 to 1983, you were a member of the Massachusetts Hazardous Waste Facility Site Safety Council (Council).  By statute, the Council reviews proposed projects for the siting of hazardous waste facilities to determine if the projects are feasible and deserving of state assistance.  G.L. c. 21D, §7.  Council members also vote on whether to award technical assistance grants (TAGs) to a town which has been proposed as a site for such a facility.  Each TAG is limited by statute to $15,000, and the community may petition the Council for an additional grant as the need arises.  G.L. c. 21D, §4(5).

You state that you were out of the country for several months in 1981 during which time the Council discussed and found feasible a proposal by a corporation to develop a major hazardous waste facility site in a Massachusetts town.  You did, however, take part in the subsequent discussions and votes to award TAGs to the town as the host community.

Since leaving the Council, you have become of counsel to a law firm which represents the Local Assessment Committee (LAC} for the town.       Pursuant to G.L. c. 21D, §5, the LAC is the formal recipient of TAGs and represents the host community in all negotiations with the developers of proposed facilities in the community, including negotiations concerning a siting agreement.

QUESTION

Does G.L. c. 268A permit you to assist the town's LAC in preparing for negotiations with the developer corporation?

ANSWER

Yes, subject to the restrictions outlined below.

DISCUSSION

While serving as a Council member, you were a state employee for the purposes of G.L. c. 268A, and, upon leaving that position, you became a former state employee.  See G.L. c. 268A, §l(p) and (q).  As such, you are prohibited by §5(a) of Chapter 268A from acting as agent or attorney for, or receiving compensation from, anyone other than the Commonwealth in connection with a "particular matter" in which the Commonwealth or a state agency 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 l(k) to include "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy ... decision, determination, finding..."   Under G.L. c. 268A, participate means to "participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise."  G.L. c. 268A, §l(j).

Although your consulting services for the town's LAC would be connected with the same project with which you were associated as a state employee, the Commission does not generally view an entire project as a "particular matter" for §5 purposes. EC-COI-84-21.   But see EC-COI-84-31.  Instead, the various decisions, determinations and proceedings related to a project, and the former state employee's role in them, are examined.

While you were on the Council, that body made the determination that a proposed project for the siting of a hazardous waste facility in the town was feasible and deserving of state assistance.   Because you were out of the country during this time, you did not participate in that determination.  Upon your return, you did participate as a Council member in the granting of TAGS to the town.   The funds from those TAGs have since been expended, and the town's LAC is currently operating with monies from TAGs awarded to it since your departure from the Council.

Therefore, even though your work for the town LAC would involve the same overall project with which you were associated as a Council member, the LAC negotiations with the developer constitute a new particular matter.  These negotiation preparations will focus on the best interests of the town.  They will develop provisions and conditions for a written agreement to be negotiated with the developer as to a particular site, which will protect the public health, safety and environment of the town as the host community, as well as promoting the fiscal welfare of the town through special benefits and compensation.  G.L. c. 21D, §5(2).  In contrast, the concerns of the Council had been on the feasibility of siting a facility in the town at all, in which discussion you did not participate; and whether or not to award state monies via TAGs to such a project.  Furthermore, you state that you would be compensated from funds received through TAGs obtained from the Council subsequent to your resignation from the Council.  Section 5(a) therefore does not prohibit you from being employed by the town's LAC in connection with its negotiations with the developer.^1/

Section 5(b) of Chapter 268A proscribes a state employee's personal appearance before a state agency on behalf of a non-state party for one year in connection with particular matters in which the state or a state agency is a party or has a direct and substantial interest and which was within his official responsibility during the last two years of his state employment.  Although you state that you would not be representing the town's LAC before any state agency or in any court of law, you should be aware that the §5(b) prohibition remains in effect for you for one year from the time you left the Council.

Section 23 outlines standards of conduct applicable to former state employees with regard to confidential information available to them by virtue of their prior state employment.  These provisions prohibit a former state employee from accepting employment or engaging in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority and from, in, fact, improperly disclosing such materials^2/ or using such information to further his personal interests.  Because of your prior role as a state employee and your access to personnel and information connected with the project, you must take great care to abide by these
provisions.^3/

^1/ Compare EC-COI-84-31 [former state employee prohibited under §5(a) from being paid by or representing a non-state party in connection with an application which was essentially a resubmission of an application, the review of which she had participated in as a state employee].  See EC-COI-84-14 (former municipal employee may assess a piece of property for its owner that he assessed for the town in previous years because different considerations may be taken into account in the assessment determination process].

^2/ These materials are defined as "materials or data within the exemption to the definition of public records as defined by [G.L. c. 4, §7]."

^3/ As an attorney, you must also conform your conduct to the Code of Professional Responsibility, which addresses the "revolving door" problem by prohibiting a lawyer from accepting private employment in a matter in which he had substantial responsibility while he was a public employee.  See Mass. Supreme Judicial Court Rule 3:22, ABA Code of Professional Responsibility, DR9-10l(B).   Any question which you may have over the application of that Disciplinary Rule to your situation, however, is beyond the Commission's jurisdiction and should be addressed to either the Massachusetts Bar Association or to the Board of Bar Overseers.