Advisory Opinion No. 2001-30

Application Of Conn. Gen. Stat. §1-84b(a) To The Former General Counsel Of The Department Of Revenue Services

Attorney Richard Nicholson, former General Counsel and First Assistant Commissioner of the Department of Revenue Services (DRS) has asked the Commission for an advisory opinion regarding the application of Conn. Gen. Stat. §1-84b(a) to his post-state employment.

Subsection 1-84b(a) states, in pertinent part, that: "No former executive branch…official…shall represent anyone other than the state, concerning any particular matter (1) in which he participated personally and substantially while in state service and (2) in which the state has a substantial interest." By its terms, the prohibition has a lifetime duration and pertains whether the representation occurs before one’s former agency or in another forum.

In this instance, the work in question involves Attorney Nicholson’s representation of taxpayers before the DRS. In no case would Attorney Nicholson represent a taxpayer regarding a matter in which he previously took part as a public official. His legal work will, however, involve representation regarding the application of statutory and regulatory provisions which were enacted during his tenure and with his official participation (i.e., oversight and drafting).

As a consequence, Attorney Nicholson wishes to know whether the term "particular matter" as used in §1-84b(a) applies to statutes and regulations.

It does not. Rather, in this context "particular matter" was intended to prohibit "switching sides by a government official" to represent a private party in an ongoing case or controversy. See, Report To The General Assembly By The Codes Of Ethics Study Committee (1983) at pps. 20-24. See also, the Federal Regulations regarding Governmental Ethics which limit "specific matters" to judicial and administrative proceedings, and expressly exempt rulemaking and legislation. 5 CFR2637.201(c).

To hold otherwise would unfairly and unnecessarily prohibit former state officials and employees from the legitimate use of their expertise. Consequently, once the §1-84b(b) one year ban on representation before an official’s former agency has elapsed, an attorney may represent private clients regarding the agency’s application of statutes or regulations which they participated in promulgating.

By order of the Commission,

Rosemary Giuliano
Chairperson