Opinion  EC-COI-84-9

Date:	01/30/1984
Organization:	State Ethics Commission

A former employee of the Appellate Tax Board who is now a municipal attorney is prohibited from receiving compensation from or acting as an agent or attorney for any non-state party in relation to any submission, application or determination in which he participated as a tax board employee. The employee is also prohibited from appearing for one year before any state agency in relation to particular matters which had been under his official responsibility for two years prior to his resignation.

Facts

You resigned from your employment with the Appellate Tax Board (ATB) and were thereafter appointed as the part-time municipal attorney for municipality DEF (DEF); you are also engaged in the private practice of law. The ATB is a state agency comprised of five members who are responsible for administering G. L. c. 58A, et seq. and c. 59, §§64-65. Among the categories of cases which the ATB decides are appeals of local assessments, abatement classifications and exemption determinations. While employed by the ATB, you refrained from participating in any proceeding involving assessments by DEF. During that time, matters involving DEF assessments were pending within the ATB and were handled by the ATB clerical and legal staff and by ATB employees. In both your DEF and private capacity, you anticipate representing parties in proceedings before the ATB.

Question

What restrictions does G. L. c. 268A place on your representing either the DEF or private parties in proceedings before the ATB?

Answer

You will be subject to the limitations set forth below.

Discussion

       Following your resignation from the ATB, you became a former state employee and are therefore subject to the provisions of G. L. c. 268A, §§5 and 23 as they apply to former state employees. Under §5 (a), you are prohibited from receiving compensation from or acting as the agent or attorney for any non-state party in relation to any particular matter^1/ in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated^2/ while serving as an ATB employee. Submissions, applications and determinations of the ATB are particular matters within the meaning of §1 (k) and are also of direct and substantial interest to the ATB, a state agency. see, EC-COI-83-12; 81-3.^3/ Therefore, you are now prohibited from receiving compensation from or acting as agent or attorney for any non-state party in relation to any submission, application or determination in which you participated while an ATB employee.

       Section 5 (b) of G. L. c. 268A prohibits you for one year following your resignation from appearing before any state agency [and in particular the ATB] in relation to any particular matter which was under your "official responsibility"^4/ during the two-year period prior to your resignation. The scope of this restriction covers those matters which were within your official responsibility during your employment, even though you may not have participated in those matters. For example, if an appeal of an assessment by DEF were filed with the ATB while you were an employee, it might be considered under your "official responsibility" for the purposes of §5 (b). On the other hand, appeals filed with the ATB after you resigned would not have been within your official responsibility. Prior to appearing before the ATB, you should therefore ascertain the ATB filing date of the matter and refrain from appearing until one year after your resignation on those cases which were within your official ATB responsibility. There are no statutory exemptions to §5 (b).

       You should also be aware that §23 of the conflict law contains certain standards of conduct applicable to all former state employees. This section prohibits a 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^5/ or using such information to further his personal interests. Although these standards are largely self-explanatory, you should keep them in mind when preparing and presenting cases before the ATB.^6/
 

End of Decision

DATE AUTHORIZED:                            January 30, 1984

^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, §1(k) .

^2/ For the purposes of G. L. c. 268A, “participate” is defined as participate in agency action or 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, §1(j)

^3/ The commonwealth would also have a direct and substantial interest in the municipal assessment determinations which are at issue. See, EC-COI-79-14.

^4/ 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 subordinates, to approve, disapprove or otherwise direct agency. G. L. c. 268A, §1 (i).

^5/ 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].”

^6/ You should also be aware that, as a part-time municipal attorney, you are a municipal employee for the purposes of G. L. c. 268A. Although your advisory opinion request does not ask specific questions which turn on your status as a municipal employee, you may renew your request if fact situations should arise which would involve these sections of G. L. c. 268A.

Inasmuch as you served as ATB employee for less than eight days in 1984, you will not be required to file a Statement of Financial Interests in 1985 for calendar year 1984. See, G. L. c. 268B, §5(c).