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Opinion EC-COI-89-34

Date: 12/21/1989
Organization: State Ethics Commission

A former state employee who previously participated in the preparation and presentation of a report on certain pending legislation may, under section 5, assist and represent a prospective developer in connection with a redraft of the bill to be reconsidered in a subsequent legislative session.


For several years until 1987, you served as a manager for state agency, ABC. In that capacity, you participated in the preparation and presentation of a report relating to pending legislation which proposed the transfer of certain state property. Pending in the current legislative session is a redraft of this bill. The bill establishes a comprehensive master plan for the development of the state land. The redraft represents a substantial change from any of the prior legislative proposals regarding the reuse of the property. You have engaged in the private practice of law. You have recently been asked by a developer who would be interested in submitting a development proposal to monitor the progress of the redraft and to make recommendations for drafting changes, if appropriate.


Does G.L. c. 268A permit you to assist and represent the potential developer in connection with the enactment of this land use bill?




Following the completion of your services for the ABC, you became a former state employee for the purposes of G.L. c. 268A In light of the passage of more than one year since the completion of your services, you are subject only to the restrictions of G.L. c. 268A, s.5(a).[1] Under s.5(a), you are prohibited from either receiving compensation from or acting as agent or attorney far any non- state party if your activities are in connection with any particular matter[2] in which you previously participated[3] as a state employee. We conclude that your proposed activities in connection with the land use bill will not be in connection with the same particular matter[4] in which you previously participated as a state employee. Initially, we note that your previous participation as a state employee occurred in prior legislative sessions. It is well- established that the duration of proposed legislation is the length of the legislative session in which it is considered, and no longer. Under Article X of the amendments to the state constitution, each legislative year begins on the first Wednesday of January, and the General Court may proceed to conduct its business until the session is dissolved automatically on the first Wednesday of January of the next year. "The language of Article X contemplates that the business of each annual session of the General Court is to be separate and distinct from that of each other session ... If action on a particular matter has not been completed by the end of the legislative year, that matter if it is to be treated at all must be considered ab initio in the following session." Opinion of The Attorney General, January 7, 1966.

The annual legislative consideration of a bill relating to the disposition of the land therefore involves a deliberation which is separate and distinct from preceding sessions. Stated differently, the two prior proposals relating to this land are not continuing particular matters but rather are matters whose duration was limited to the session in which the proposals were considered. Your proposed activities in connection with the enactment of the current bill are therefore not considered to be in connection with the same legislation in which you participated in earlier sessions. Compare, EC-COI-79-34 (each annual renewal of a grant is considered to be a separate particular matter, and the s.5 prohibition ceases upon termination or renewal of that grant).[5]

[1] While other restrictions in s.5(b), (c) and (e) applied to you or your partners for a one-year period following your resignation, the one-year period expired in 1988.

[2] "Particular matter," 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.

[3] "Participate," 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.

[4] For the purpose of this opinion, we will assume that each legislative proposal relating to the disposition of the property is sufficiently specific so as to be regarded as special legislation and therefore, a "particular matter" under s.1(k). See, ,EC-COI-89-8.

[5] Even assuming for the sake of argument that the earlier legislation has a continuing status as a particular matter, we would conclude that the current house bill is so substantially different from proposals which you reviewed as a state employee that the particular matters would be considered different for s.5 purposes. Compare, EC-COI-84-31; 84-14.


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