Opinion  EC-COI-85-11

Date:	01/31/1985
Organization:	State Ethics Commission

A former state employee may not work for a private firm in connection with matters in which he previously participated as a state employee. Examples of prohibited matters include permit determinations and proceedings challenging the validity of regulations which he drafted.

Facts

You currently serve as the director of a division [Division] within state agency ABC [ABC]. Several of your responsibilities relate to the administration of [an Act], under which ABC may review permits issued by local agencies. You personally participate in the establishment and interpretation of regulations and policies which guide the Division's permit decision-making process, and you make the actual decisions with respect to certain permits. You state that you also have official responsibility for all decisions issued by other Division staff members, even though you do not personally participate in them.

You are about to leave the Division to work for a private firm in the same subject area. You expect to represent clients before local agencies and state agency ABC in the process of applying for permits.

Question

What limits does G.L. c. 268A place on your activities with the firm?

Answer

You will be subject to the limitations set forth below.

Discussion

Following your departure from the Division, you will be a former state employee for the purposes of G.L. c. 268A, and therefore subject to the restrictions of G.L. c. 268A, §§ 5 and 23.

Section 5(a) prohibits you from receiving compensation from the firm or acting as the firm's agent in connection with 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 previously participated^[2] as a Division employee. For example, each permit determination which you made as Division director will fall within the § 5(a) prohibition, as will each decision you made with respect to Division proceedings.^[3] On the other hand, § 5(a) does not preclude you from working for the firm in relation to Division regulations which you assisted in promulgating. As the Commission stated in EC-COI-81-34, p. 2 "...regulations in and 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." Therefore, you may represent clients in the process of applying for permits as long as your requests are consistent with and pursuant to the regulations which you drafted. You may  not, in the course of such representation, attack the validity of the regulations or assert a procedural defect in the process by which the Division or ABC promulgated the regulation, because you would "in essence be seeking to tear down that which you had helped to build" M.H. Gordon and Son, Inc. v. ABCC, Suffolk Superior Court Nos. 38250, 37348, 8 MLW 654, as quoted in EC-COI-81-34, p. 2.

Section 5(b) establishes an independent limitation on your post-employment appearances before state agencies and courts. This provision relates to those particular matters in which you did not personally participate but which were nonetheless under your "official responsibility"^[4] as Division director. Under § 5(b), for a one-year period following the completion of your Division services, you may not personally appear on behalf of a private client before any state agency or court in connection with particular matters which were under your official responsibility during the previous two-year period. Included within the § 5(b) prohibition are the permit rulings and determinations made by other Division employees, which you state were under your official responsibility. The § 5(b) limitation will apply to all appeals from local agency permit rulings which were pending in your Division at the time of your departure. EC-COI-84-9. Therefore, prior to appearing before the Division, ABC, or other state agencies or state courts, you should ascertain the official Division filing date of the appeal.

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 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^[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 Division or ABC.

 

End Of Decision 

^[1] For the purposes of  G.L. c.  268A, § 1(k), "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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property."

^[2] For the purposes of G.L. c. 268A, § 1(j), "participate" is defined as "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."

^[3] In view of the hypothetical nature of your question, this advisory opinion cannot address the application of § 5(a) to each particular matter in which you previously participated. Although, in general, each permit application is treated as a separate particular matter, this will not invariably be the result. For example, if a new permit application is no more than a resubmission of a permit application which you previously denied, then the Commission may regard the permits as the same particular matter for § 5 purposes. See, EC-COI-84-31. Should a question arise on this point, you may renew your opinion request with the Commission.

^[4] For the purposes of G.L. c. 268A, § 1(i), "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 action."

^[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]."