September 20, 1989

FACTS:


You are a member of state agency ABC. You are also a private
attorney and have represented Mr. X and his company in real
estate transactions. Although at one time you served as clerk for
Mr. X's company, you have resigned from that position.

Recently, the ABC purchased some property from Mr. X's
company. You did not represent Mr. X's company in the
transaction and received no remuneration in connection with the
transaction. You state that the transaction was a straight
purchase with no mortgages or other interests retained by Mr. X
or his company.

Pending before the ABC is an offer from Mr. Z to purchase the
same property. Neither Mr. X or his company has any financial
connection with Mr. Z. You have filed a letter and documents with
your appointing official pursuant to G.L. c. 268A, s.23(b)(3)
disclosing your prior relationship with Mr. X.

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QUESTION:


Does G.L. c. 268A permit you to participate as an ABC member
in the sale of this property?


ANSWER:


Yes, subject to certain restrictions.[1]


DISCUSSION:

1. Jurisdiction


We conclude that the ABC is a "state agency" within the
meaning of G.L. c. 268A, s.1(p)[2] and you are a state employee
within the meaning of G.L. c. 268A, s.1(q)[2] through your
membership in the ABC. The definition of state agency includes
"any independent state authority ... [or] instrumentality but not
an agency of a county, city or town." G.L. c. 268A, s.1(p). The
ABC's enabling statute expressly identifies the ABC as a public
instrumentality, and we have previously regarded the ABC to be an
agency subject to G.L. c. 268A. (citations omitted). Although the
ABC's enabling statute preceded the enactment of G.L.c. 268A and
is silent as to the proper characteriiation of the ABC for G.L.
c. 268A purposes, we have consistently treated agencies similar
to the ABC as state agencies for G.L.c. 268A. (citations
omitted). While there are organinational provisions in the ABC's
enabling statute which could arguably suggest that the ABC is
analogous to a regional municipal district, and therefore a
municipal agency, EC-COI-82-25, we deem controlling the fact that
the commonwealth is required under the enabling statute to assume
any deficit incurred by the ABC.

In view of your uncompensated statute as an ABC member, you
are also considered a special state employee under G.L. c. 268A,
s.1(o). As a special employee, you remain subject to
prohibitions under G.L. c. 268A but are eligible for exemptions
permitting your private deals with certain State agencies.


2. Limitations on Your Official Activities


Under G.L. c. 268A, s.6, a state employee must abstain from
official participation[4] in any particular matter[5] which
affects the financial interest, in relevant part, of either the
employee or any business organization for which the state
employee serves as officer or employee. Based on the information
you have provided, we conclude that s.6 does not require your
abstention from participation as an ABC member in the proposed
sale of this property to Mr.X. The proposed sale is between the
ABC and Mr. Z and does not affect the interests of Mr. X's
company. Inasmuch as the previous sale by Mr. X's company to the
ABC was a straight sale with no mortgages or other interests
retained by Mr.X, as a prior owner he does not have a financial
interest in the subsequent proposed sale. Moreover, even assuming
that Mr.X's company could be regarded as having a financial
interest in the sale, your relationship with Mr. X does not
appear to be one which is covered by s.6. As long as you refrain
from serving as clerk, you are not an officer of the
corporation.[6]

Although your prospective participation in the conveyance is
permissible under G.L. c. 268A, s.6, you must observe the
safeguards of s.23 to avoid any actual or apparent undue
favoritism. Specifically, to dispel any appearance of
favoritism, you must disclose to your appointing officials the
relevant facts concerning your relationship with Mr. X and the
property in question GI. & 268A, b(b)(3)must also avoid using
your official positiontogrant any unwarranted privileges of
substantial value to anyone in connection with the conveyance
decision. G.L. c. 268A, s.23(b)(2). To satisfy the provisions of
s.23(b)(2), you should base your decision as an ABC member on
objective standards, as opposed to your personal connections with
respect to the property.[8]


3. Limitations on your private activities


While not directly posed by your opinion request, G.L. c.
268A, s.4 places some restrictions on your activities as private
attorney. Specifically, s.4 prohibits your either representing or
receiving compensation from a non-state party in connection with
any matter which is within your official responsibility as an
Authority member. For example, if Mr. X has any matters pending
before the ABC, you must continue to refrain from representing
Mr. X or receiving compensation from Mr. X in connection with
those matters.

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[1] This opinion is intended to provide prospective guidance to
you and is not intended to evaluate the propriety of conduct
which has already occurred.

[2] "State agency," any department of a state government
including the executive, legislative or judicial, and all
councils thereof and thereunder, and any division, board, bureau,
commission, institution, tribunal or other instrumentality within
such departments and any independent state authority, district,
commission, instrumentallty or agency, but not

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an agency of a county, city or town.

[3] "State employee," a person performing services for or holding
an office, position, employment, or membership in a state agency,
whether by election, appointment, contract of hire or engagement,
whether serving with or without compensation, on a full, regular,
part-time, intermittent or consultant basis, including members of
the general court and executive council.

[4] "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.

[5] "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 orgamnations, powers, duties, finances and
property.

[6] Your status as attorney performing legal services for Mr. X
does not appear to make you an "employee" of Mr. X for G.L. c.
268A, s.6 purposes. See, EC-COI-83-34. Should you find that your
attorney duties for Mr. X increase and comprise a more
substantial part of your time, you should seek and receive
written permission from your appointing official to participate
in matters affecting Mr. X pursuant to G.L. c. 268A, s.6(3).

[7] We note that you have complied with the s.23(b)(3) disclosure
requirement. Contrary to your wish that the disclosure be
confidential, however, G.L. c. 268A, s.24 requires that your
disclosure be open for public inspection. You must therefore
notity your appointing official accordingly.

[8] Because your participation is permissible, there is no need
to address whether a "rule of necessity" could be invoked to
permit your participation where one of the ABC members is sick.
Compare, EC-COI-82-10.

End Of Decision