September 29, 1997
John Ray, Esq.
Manatt, Phelps, Phillips
Attorneys At Law
1501 M Street, N. W.
Washington, DC 20005-1702
Re: Post-Employment Conflict of Interest
Dear Mr. Ray:
This responds to your request for an opinion concerning the appropriateness of your representation of a prospective client, a telecommunication carrier, before the Public Service Commission regarding DC Law 11-154, the “Telecommunications Competition Act of 1996" (Act), the “Federal Telecommunication Act of 1996", and an existing interconnection agreement in light of your role in introducing the Act before the Council while a member of the District of Columbia Council.
As you are aware, 18 U.S.C. §207 and 18 D.P.M. §§ 1814 and 1815 govern the post-employment activities of former District of Columbia Government employees; and that the District of Columbia regulations cited herein are enforced by the Office of Campaign Finance for certain former public officials, including former members of the DC Council. These regulations state that “[a] former government employee shall be permanently prohibited from knowingly acting as an attorney, agent, or representative in any formal or informal appearance before an agency as to a particular government matter involving a specific party if the employee participated personally and substantially in that matter as a government employee”. 18 D.P.M § 1814.4. Further, there is a permanent prohibition on “making any oral or written communication to an agency with the intent to influence that agency on behalf of another person as to a particular matter involving a specific party if the employee participated personally and substantially in that matter as a government employee”. 18 D.P.M. § 1814.5. Additionally, a former government employee is prohibited for two (2) years after terminating District government employment from “knowingly acting as an attorney, agent, or representative in any formal or informal appearance before any agency as to a particular government matter involving a specific party if the former employee had official responsibility for that matter.” 18 D.P.M. §1814.6.18 D.P.M § 1814.1 defines “particular government matter involving a specific party” to mean “any judicial or other proceeding, . . ., or other particular matter in which the District government is a party or has a direct and substantial interest, and which has application to one (1) or more specifically identified persons or entities.”
A review of the District “Telecommunication Competition Act of 1996" (Act), introduced to the Council by you in 1995 and later enacted in 1996, indicates that this legislation may be characterized as a matter in which you certainly “participated personally and substantially”, and for which you assumed “official responsibility”. Moreover, we may infer that your representation of your prospective client is “with the intent to influence” the Public Service Commission on your client’s behalf. However, our interpretation of these regulations must be guided by the aforementioned definition of a “particular government matter involving a specific party.” While the District government would have a “direct and substantial interest” in expanding and regulating the telecommunications industry in the District of Columbia, the “particular government matter involving a specific party”, i.e., the subject legislation, must have application to “one (1) or more specifically identified persons or entities” (emphasis added).
Pursuant to federal guidelines interpreting 18 U.S.C. § 207 concerning a “particular matter involving a specific party”, “[s]uch a matter typically involves a specific proceeding affecting the legal rights of the parties or an isolatable transaction or related set of transactions between identifiable parties. Rulemaking, legislation, the formulation of general policy, standards or objectives, or other action of general application is not such a matter.”
The preamble to the legislation at issue states as its purpose to “authorize and encourage” the Public Service Commission to “facilitate entry to District of Columbia markets for telecommunications services providers, and to direct the Public Service Commission to regulate telecommunications services providers in a manner consistent with federal law . . .”. Moreover, the legislation effectively directed the divestiture of the monopoly of telecommunications services held exclusively by Bell Atlantic and its operating companies in the District of Columbia consistent with federal law. Consequently, the legislation is not limited in its application. In fact, it sets forth policy to open the District of Columbia telecommunications market to other carriers and regulatory standards for execution by the Public Service Commission pursuant to DC Code § 43-402.
Therefore, it is the opinion of the Office of Campaign Finance that the provisions of the post-employment regulations containing prohibitions pertaining to a “particular government matter involving a specific party” do not apply in this instance. Consequently, it would be permissible for you to make representations before the Public Service Commission concerning the Act on behalf of your prospective client.