Former Employee, 042913 AKAGO, AGO AN2010100308

Docket Nº:AGO AN2010100308
Case Date:April 29, 2013
Court:Alaska
 
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Former Employee
AGO AN2010100308
No. AN2010100308
Alaska Attorney General Opinions
April 29, 2013
         Former Employee          Re: Post State Employment Restrictions          Dear Former Employee:          This letter responds to your April 18, 2013 email request for advice regarding the parameters and restrictions on your future employment or contract work after you leave state service on April 30. You currently serve as a division director in a state executive branch department. You indicate that you are familiar with the Executive Branch Ethics Act, AS 39.52, and have taught an ethics class for many years in which you have reviewed the restrictions on employment after state service. At this time, you do not have a specific assignment, contract, or employment opportunity in mind and therefore this letter provides only general guidance.          As you know, there are several provisions of the Ethics Act that apply to former state employees. We discuss them below.          I. TWO-YEAR BAR ON WORK ON THE SAME MATTER          Alaska Statute 39.52.180(a) imposes a two-year prohibition on certain post-state employment. For two years after leaving state service, a former state officer may not “represent, advise, or assist a person for compensation regarding a matter that was under consideration by the administrative unit served by that public officer, and in which the officer participated personally and substantially through the exercise of official action.” The Department of Law has consistently read this prohibition in accord with the legislature’s intent that AS 39.52.180 be narrowly applied.[1] Thus, paragraph 180(a) prohibits an activity during the two-year post-state employment period only if the activity meets each of the elements of that subsection. The goal is to protect the integrity of state actions but recognize that state employees gain expertise and knowledge on the job that they rightfully take with them when they leave state service.          The Ethics Act and related regulations define most of the terms used in AS 39.52.180(a).[2] That paragraph defines the term “matter” to include “a case, proceeding, application, contract, or determination, proposal or consideration of a legislative bill, a resolution, a constitutional amendment, or other legislative measure, or proposal, consideration, or adoption of an administrative regulation.” In applying the provision, we focus on the relationship, if any, between matters you worked on while in state service and the matter you propose to work on after leaving state service.          Whether participation in a matter is “personal and substantial” depends on the circumstances of each case. Routine processing of documents, general supervision of employees without direct involvement in a matter, and ministerial functions not involving the merits of a matter do not constitute “personal and substantial” participation.[3] The term “official action” means “advice, participation, or assistance, including, for example, a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction, by a public officer.”[4]          In an early interpretation of AS 39.52.180(a), we focused particularly on the terms “matter” and “exercise of...

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