April 12, 1989

FACTS:


You are currently Commissioner for a county and your present term expires in 1990. You expect to join a consulting firm as a consulting in the near future and will represent clients in real estate and health care issues before municipal, state and federal agencies. You also may act as legislative agent for private clients before the General Court. You have previously served as a member and employee of the General Court, and as a consultant to a state agency.


QUESTION:


What limitations does G.L. c. 268A place on your proposed activities?


ANSWER:


You will be subject to the limitations set forth below.


DISCUSSION:

In your capacity as a County Commissioner, you are a county employee for the purposes of G.L. c. 268A.[1] Three sections of G.L. c. 268A are relevant to your question.

[Page 241]

1. Section 11

This section limits your activities on behalf of the firm. Under s.11 you may neither be paid by the firm or a client nor represent the firm or a client in connection with an decision, contract, claim or other "particular matter"[2] in which the county or a county agency is either a party or has a direct and substantial interest. Prohibited matters under s.11 would include decisions regarding the use of county retirement funds, In the Matter of James Collins, 1985 Ethics Commission 228,230; county insurance contracts, EC-COI-83-150, and civil actions in which the county is a party, EC-COI-80-42. On the other hand, where the interest of a county agency is too remote or tenuous, the prohibition of s.11 does not apply. See, EC-COI-85-46, (filing of documents with County Registry); EC-COI-81-21 (criminal prosecutions by district attorneys); EC-COI-81-166 (campaign manager activities on behalf of state office candidate). Accordingly, you will need to examine each matter you are assigned by the firm to ascertain the degree of interest of which the county has in the matter. To the extent that you do not intend to appear before county agencies on a regular basis, the restrictions of s.11 should not unduly limit your representational activities.


2. Section 13


This section places limitations on your official County Commissioner activities. Under s.13 you must abstain from participating in any particular matter which affects the financial interests of either you, your immediate family, your partner, a business organization for which you are serving as an officer, director, trustee, partner or employee, or any person or organization with whom you are negotiating or have an arrangement for future employment. For example, should a determination foreseeably affecting the consulting firm's financial interest came before you as a County Commissioner, you must abstain from discussing, voting or otherwise participating in that matter.  While s.13 provides an exemption avenue under certain conditions for appointed county officials, that avenue is not available to you as an elected official. District Attorney for the Hampden District v. Grvcci, 384 Mass. 525 (1981).


3. Section 23 (b)(2) and (b)(3)


This section prohibits you from using your official County Commissioner position to secure unwarranted privileges of substantial value for yourself or others. It also prohibits your creating the appearance of undue favoritism towards anyone. To comply with these provisions, you must keep your County Commissioner duties separate from your consulting firm work and refrain from using county resources such as telephones, stamps, word processors and office support for your consulting work. 


You must also bear in mind the safeguards of s.23 should a client of the firm appear before the County Commissioners. At a minimum, to dispel any appearance of undue favoritism, you should publicly disclose the fact that the individual or organization is a client of your firm.[3]

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[1] Certain provisions of G.L. c. 268A apply less restrictively to special county employees under G.L. c. 268A, s.1(m). As a paid, elected county official, however, you do not qualify for special county employee status. EC-COI-83-150.

[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] Inasmuch as more than one year has passed since the completion of your legislative duties, the restrictions in s.5(e) on your acting as legislative agent before the General Court will not apply to you. The remaining restriction which will apply to you as a former state employee is s.5(a). Under s.5(a), you may not work for the firm or a client in connection with any particular matter in which you previously participated at a state agency or the General Court. Should you need clarification of this restriction in connection with a specific matter, you may renew your opinion request with us.

 

End Of Decision