Opinion  EC-COI-85-84

Date:	10/29/1985
Organization:	State Ethics Commission

An independent special state commission comprised of legislative and gubernatorial appointees is a state agency for the purposes of G.L c. 268A, and a consultant who left the special commission is a former state employee. The lobbying ban of § 5(c) will therefore prohibit his acting as legislative agent before the special commission for one year following his termination of employment. Because the special commission is a governmental body independent of the General Court, § 5(e) will not restrict his acting as legislative agent before the General Court.

Facts

You formerly served on a full-time basis as a consultant to a Special Commission created by statute. The Special Commission is composed of gubernatorial and legislative appointees, and is chaired by two members of the General Court. The Special Commission is funded under a line item within the budget of the General Court, and its offices are located outside of the State House. Your work for the Special Commission involved primarily background research.

You are currently employed by a private employer (ABC) and are interested in lobbying on behalf of ABC before the General Court.

Question

Does G.L. c. 268A, § 5(e) permit you to act as the legislative agent of ABC before the General Court during the one year period following the completion of your services for the Special Commission?

Answer

Yes.

Discussion

1. Jurisdiction

Initially, the Commission advises you that the Special Commission is a "state agency" for the purposes of G.L. c. 268A^[1] and, as a consultant to the Special Commission, you were therefore a state employee.^[2] EC-COI-84-18. The definition of state agency specifically includes independent state commissions such as the Special Commission. Further, in view of the statutory mandate for the creation of the Special Commission, the Special Commission's entity status is distinguishable from the temporary, ad hoc advisory groups which the Commission has regarded as outside of G.L. c. 268A. Compare, EC-COI-82-157, 82- 139, 82-81. Moreover, prior opinions of the Attorney General have concluded that other special commissions with enabling statutes similar to the Special Commission are state agencies for the purposes of G.L. c. 268A. See, Attorney General Conflict Opinion Nos. 633, 843. Upon the completion of your services for the Special Commission, you became a former state employee and are now subject to the restrictions of G.L. c. 268A, § 5.

2. Substantive Limitations

The principal restriction raised by your opinion request is G.L. c. 268A, § 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 § 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.

As a former state employee who wishes to act as an ABC legislative agent, you will be subject to a one-year lobbying ban before the governmental body with which you have previously been associated.

In EC-COI-84-146, the Commission noted that the term "governmental body" was not defined in either G.L. c. 268A, § 5(e) or in the definitional sections of G.L. c. 268A, § 1, but concluded that the General Court intended the definition of "governmental body" contained in G.L. c. 268B, § 1(h)^[3] to apply to G.L. c. 268A, § 5(e). Id. pp. 4-5.

The Special Commission is a "governmental body" within the meaning of G.L. c. 268B, § 1(h) because it is an independent state commission. Therefore, the § 5(e) ban would clearly prohibit you from acting as ABC legislative agent before the Special Commission. On the other hand, you would not be prohibited by § 5(e) from lobbying before the General Court, its committees or staff, because the General Court was not a governmental body with which you were formerly associated.

This conclusion is based on the independence of the Special Commission from the organization and operation of the General Court, See, EC-COI-84-146, compare EC-COI-82-52. Unlike the standing legislative committees of the General Court, the Special Commission has no operational accountability to the General Court and exists as an independent entity comprised of legislators and non-legislators intended for the purpose of investigation and research. Therefore, the one-year lobbying ban will apply only to your acting as ABC legislative agent before the Special Commission and will not apply to lobbying before the General Court.^[4]

 

End Of Decision

^[1] G.L. c. 268A, § 1(p) defines state agency as "any department of a state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agent, but not an agency of a county, city or town."

^[2] G.L. c. 268A, § 1(q) defines state employee. in relevant part, as "a person performing services for or holding an office, position, employment, or membership in a state agency. whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council."

^[3] G.L. c. 2688, § 1(h) defines governmental body as "any state or county agency, authority, board, bureau, commission, council, department, division, or other entity, including the general court and the courts of the commonwealth." 

^[4] The other two paragraphs of § 5 relevant to former state employees will not limit your ABC activities, since the legislation for which you would lobby would not be in relation to any "particular matter" in which you previously participated or had official responsibility while employed It the Special Commission.