| Date: | 06/18/1985 |
|---|---|
| Organization: | State Ethics Commission |
The current director of legislative and business affairs with the Executive Office of ABC will be subject to a limited one-year lobbying ban upon his leaving ABC to serve as a legislative agent for a private entity. The restrictions will apply to his appearances before ABC and agencies within ABC but will not apply to appearances before the legislature and secretariats other than ABC.
You are currently employed as director of legislative and business affairs for the Executive Office of ABC. Your responsibilities include the preparation of draft legislation which the Secretary submits; recommending action to the Secretary on legislation filed by or affecting agencies within ABC; monitoring activities of ABC agency legislative liaisons with respect to legislation and budget; consulting with certain committees of the General Court in order to advise the Secretary, and advocating for legislation of interest to the Secretary.
You are considering leaving your ABC position to take a new position as a legislative agent with DEF. You anticipate that your activities will include advocacy on behalf of DEF before the General Court and/or its committees, and before agencies within the executive branch.
1. How broadly does the one-year bar under G.L. c. 268A, § 5(e) apply to your legislative agent activities on behalf of DEF?
2. Aside from § 5(e), what other limitations does § 5 place on your proposed activities on behalf of DEF?
1. During the one-year period following your resignation from ABC, you may act as DEF's legislative agent before the General Court and executive branch agencies other than those within ABC. During that period, you may not act as DEF's legislative agent before ABC or before agencies within ABC.
2. In general, § 5 will not impose additional limitations on your proposed activities because your ABC position primarily involves the enactment of general legislation, or legislation which is limited to a specific legislative session.
Upon leaving your ABC position as director of legislative and business affairs, you will be subject to the restrictions of § 5(e) which provide 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,[1] 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.
Unlike other provisions within § 5, the focus of § 5(e) is not on whether the particular matter on which the former employee is now working is the same matter on which the employee previously worked or had responsibility for as a state employee. As the Commission stated in EC-COI-84-146, "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 scope of the § 5(e) prohibition, as applied to you, turns on whether your activities as legislative agent will be before the same governmental body with which you have been associated.
Although 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, the term is defined in G.L. c. 268B, § 1(h),[2] and the Commission has concluded 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. See, EC-COI-84-146.
The definition of governmental body clearly includes ABC and the agencies within ABC. ABC is treated as the governmental body responsible for each governmental body within ABC for the purposes of G.L. c. 268B. See, G.L. c. 268B, § 3(j)(8).[3] Given the broad range of responsibilities in your current position, and particularly as they involve your relationship with agencies within ABC, the scope of the one-year bar will cover your appearing as DEF's legislative agent before ABC and any agency within ABC.[4] By way of example, for one year you could not appear before ABC Department officials or staff members to seek that agency's approval of legislation or regulations in which DEF is interested. The prohibition would also extend to your arranging meetings between DEF and ABC agencies with respect to the passage of legislation or approval of regulations. See, In the Matter of Cornelius J. Foley, Jr., 1984 Ethics Commission 172. On the other hand, you may act as legislative agent for DEF before the General Court and governmental bodies other than ABC and agencies within ABC. In response to your specific inquiry, § 5(e) would similarly not prohibit .you from attending meetings of the Coalition[5] as a representative of the DEF. Given the purpose of the Coalition, your attendance as a DEF representative would not be treated as an appearance before a governmental body. However, your subsequent lobbying efforts on DEF's behalf will be subject to § 5(e) if they involve your appearing before ABC agencies in relation to legislation or regulations.
In addition to the restrictions of § 5(e), discussed above, you are also subject to G.L. c. 268A, § 5(a). This paragraph prohibits you from receiving compensation from or acting as DEF's agent in relation to any particular matter[6] in which you previously participated[7] as an ABC employee.
On the basis of the information which you have provided, this paragraph should not place substantial limitations on you for two reasons. To the extent that most of the legislative activities in which you have been involved in your ABC capacity have been in the enactment of general, as opposed to special legislation, the definition of particular matter excludes those matters from the scope of § 5(a). For example, the enactment of St. 1982 c. 372 (the cost containment act) would be treated as general, as opposed to special, legislation for the purpose of § 5(a). Second, each legislative session lasts one year. Even if you had previously participated in proposed special legislation as an ABC employee, the commencement of a new legislative session makes the refiling of such legislation a different particular matter for the purposes of § 5(a).[8] Compare, EC-COI-80-2 (each annual budget is a separate particular matter for § 5 purposes).
Finally, you should be aware that once you leave your ABC position you will be subject to the restrictions of § 23(¶3). This paragraph prohibits you from accepting employment or engaging 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 improperly disclosing materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and which you acquired in the course of your official duties nor use such information to further your personal interests.
End Of Decision
