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Opinion

Opinion EC-COI-87-34

Date: 08/17/1987
Organization: State Ethics Commission

A former state attorney may not represent private clients in connection with negotiations, discussions and other communication about the continued promulgation of draft regulations where he had participated in the initial draft in his official capacity.

Facts

Members of the board of selectmen are municipal employees within
the meaning of the conflict of interest law and, therefore, are
subject to its provisions. G.L. c. 268A, s.1(q). The conflict of
interest law prohibits a municipal employee, such as a member of
the board of selectmen, from participating in a particular matter
in which the employee, or a member of her immediate family, has a
financial interest.[1] G.L. c. 268A, s.19(a). A determination to
create a new position of captain is a particular matter, G.L.c.
268A, s.1(k), and any discussion or vote on this matter would
constitute participation. See, Graham v. McGrail, 370 Mass.
133(1976); EC-COI-82-10. The remaining issue is whether your son,
an immediate family member, has a financial interest in the matter.
The disqualifying financial interest in a determination to create
the captain's position must be "direct and immediate or at least
reasonably foreseeable" EC-COI-84-123see also, 84-96 and 84-98.

In this case, the decision to create the new position of captain
would foreseeably impact the financial interest of your son.

This is because you have stated that the appointment of captain
will create a vacancy in one of the four sergeant positions, and
your son has a current interest in being promoted to sergeant.
Thus, there is a line of causation which will impact on your son.
Cf. EC-COI-87-16 (where the individuals who might have potential
interests in a future vacant elected position were not

Page 172

sufficiently identifiable).

Since the opening for the sergeant's position will affect your
son's financial interest as long as he is interested in the
promotion, you will be prohibited from participating in any
decision to appoint any one of the four sergeants to the position
of captain. Similarly, you are prohibited from participating in the
selection of a sergeant if your son in fact applies for the
resulting vacant position.

Discussion

Members of the board of selectmen are municipal employees within the meaning of the conflict of interest law and, therefore, are
subject to its provisions. G.L. c. 268A, s.1(q). The conflict of
interest law prohibits a municipal employee, such as a member of
the board of selectmen, from participating in a particular matter
in which the employee, or a member of her immediate family, has a
financial interest.[1] G.L. c. 268A, s.19(a). A determination to
create a new position of captain is a particular matter, G.L.c.
268A, s.1(k), and any discussion or vote on this matter would
constitute participation. See, Graham v. McGrail, 370 Mass.
133(1976); EC-COI-82-10. The remaining issue is whether your son, an immediate family member, has a financial interest in the matter.

The disqualifying financial interest in a determination to create
the captain's position must be "direct and immediate or at least
reasonably foreseeable" EC-COI-84-123see also, 84-96 and 84-98.

In this case, the decision to create the new position of captain
would foreseeably impact the financial interest of your son.

This is because you have stated that the appointment of captain
will create a vacancy in one of the four sergeant positions, and
your son has a current interest in being promoted to sergeant.
Thus, there is a line of causation which will impact on your son.
Cf. EC-COI-87-16 (where the individuals who might have potential
interests in a future vacant elected position were not

Page 172

sufficiently identifiable).

Since the opening for the sergeant's position will affect your
son's financial interest as long as he is interested in the
promotion, you will be prohibited from participating in any
decision to appoint any one of the four sergeants to the position
of captain. Similarly, you are prohibited from participating in the
selection of a sergeant if your son in fact applies for the
resulting vacant position.

Answers

1. No.

2. Yes.

Discussion

You contend that the proposed regulations under consideration do not constitute "particular matters" within the meaning of s.5(a). While it is true that the Commission has ruled that regulations, once promulgated, are not "particular matters", we also have held that the decisions and determinations made during the process of promulgation are "particular matters." ECC-COI-81- 34. In this case the proposed regulation is in draft form and policy considerations are still on the table. We conclude that the former employee would be prohibited from challenging the policy, judgment or wisdom of those draft regulations. The XYZ regulations are part and parcel of the promulgation process which included initial draft regulations. In substance, the two regulations are similar, and indeed, most of the provisions have been copied verbatim. See, EC-COI-81-34 (that a prior set of regulations were no longer in effect but had been superceded by a single regulation did not result in the conclusion that the subsequent single regulation was part of a separate promulgation process).

The former employee rendered advice and made decisions or determinations regarding the draft form of XYZ Regulations. Therefore, he participated personally and substantially in the promulgation process and made

Page 173

decisions or determinations regarding the public policy of some or all of the regulations in this set. If the former employee were now to appear on behalf of a private client who was potentially affected by these regulations and opposed their promulgation as drafted, he would be, as stated in EC-COI-81-AA-34, "in essence seeking to tear down that which he had helped to build." Thus, the former employee is permanently prohibited from challenging the wisdom or legality of the draft regulation and you are similarly prohibited for a one-year period after the termination of the employee's state service.[1]

In EC-COI-81-34, we recognized that, once the regulation is in final form, there exists a permissible scope of representation. We held that a former state employee may properly represent a private party in a case related to the interpretation or application of a regulation which he had previously participated in drafting as a state employee.[2] This interpretation is consistent with the policy that lawyers who develop a specialized area of expertise should not be perpetually precluded from representing private clients in that area of expertise. Such a ban would unduly restrict the livelihood of specialized attorneys and deprive clients of needed expertise. The Commission held, however, and reaffirms that such representation may not include an attack on the validity of the regulations.

In EC-COI-81-34, we recognized that such a subsequent challenge to the validity of regulations may take many forms. For example, there are certain prerequisites to the adoption of regulations which are set out in G.L. c. 30A, s.s.2 thru 6. A challenge based on a claim that the agency did not properly meet the prerequisites to the adoption of regulations would be a challenge to their validity. A complaint that an agency did not properly take into consideration the views of the industry which it regulates in adopting a draft set of regulations, although not technically a challenge pursuant to G.L. c. 30A, s.2 thru 6, would nevertheless be a challenge to the decisions made in the process by which the regulations were formulated, and therefore, would be a challenge to the validity of the process.[3]

Whether a particular representation will be considered a challenge to the validity of regulations or merely related to their interpretation or application must be decided on a case-by-case basis. If there is a question as to whether a particular form of representation involves a challenge to validity or an issue of application, you may obtain a subsequent opinion specific to the form of representation in question.

[1] This conclusion would apply equally to representation in support of the wisdom of the draft regulations, since such communication would also be in connection with determination, made in the promulgation process.

[2] This interpretation of the conflict law is consistent with the current interpretation of federal law as enunciated in the Code of Federal Regulations. In discussing the restrictions on former federal government employees, the Federal Office of Governmental Ethics provides examples. One example is as follows:

An employee is regularly involved in the formulation of policy, procedures and regulations governing department procurement and acquisition functions. Participation in such activities does not restrict the employee after leaving the government as to particular cases involving the application of such policy, procedure or regulations. 5 CFR s.737.5(7)(c).

[3] These examples are provided for illustrative purposes. Other examples include, but are not limited to, a claim the regulation is "arbitrary, capricious, or unlawful", is beyond the authority of the agency to promulgate, it unconstitutional (i.e. irrational), is contrary to the plain language of the enabling statute, or did not take into consideration those factor's which the enabling statute or law requires be taken into consideration. All of these standard claims are a challenge to the underlying assumption of the lawfulness of the promulgation process. EC-COI-81-34.

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