April 18, 1990

 

FACTS:

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You are a partner in a law firm which currently contracts with
a state board (Board) to provide legal services. You indicate that
the Board has divided administrative responsibilities so that your
law partner, Mr. X, assists the Board staff in its prosecutorial
function, while you assist the Board hearing officer and the Board
in its adjudicatory function.
 


QUESTION:


Does G.L. c. 268A permit you and Mr. X to perform your
proposed services for the Board?
 


ANSWER:


Yes, subject to certain conditions.
 


DISCUSSION:


1. Jurisdiction


The "state employee" provisions of G.L. c. 268A apply to you
and Mr. X, inasmuch as you are performing services for Board, a
state agency. See, G.L. c. 268A, s.1(q). We note that the Board has
also classified you as "special state employees" within the meaning
of G.L. c. 268A, s.1(o). While this status will provide an
exemption from certain G.L. c. 268A restrictions on your outside
activities, special state employee status will not affect the
application of G.L. c. 268A to the questions which you have posed.


2. G.L. c. 268A, s. 6


Under s.6, you are required to abstain from participating as
Board counsel in any contract determination, controversy or other
particular matter[1] in which either you, your partner or firm has
a financial interest. Issues under s.6 may arise when you are
called upon to review, in the context of an adjudication, the
merits of legal issues in which Mr. X has developed and advocated
as the prosecutor. Notwithstanding the application of the s.6
restriction, however, s.6 contains an exemption procedure which
would permit your participation following your disclosure of the
relevant facts and the receipt of written permission from your
appointing official pursuant to the standards of s.6(3).[2] Because
your appointing official has expressly granted permission to you
and other firm employees to participate in connection with matters
in which you are assigned, the abstention requirements of s.6 do
not apply to you or other firm employees.


3. G.L. c. 268A, s. 23


Under s.23(b)(2), you may not use or attempt to use your
official position to secure any unwarranted privilege or exemption
of substantial value for yourself or others. Further, s.23(b)(3)
requires that you avoid creating an appearance of undue favoritism
towards your partner in carrying out your adjudicatory functions.
By disclosing the relevant facts to your appointing official, you
have dispelled any appearance of favoritism. To comply with
s.23(b)(2), there need to be sufficient safeguards to insure that
you are not providing unwarranted favoritism to positions advocated
by your partner. One such safeguard would be your refraining from
any ex parte communication with Mr. X concerning matters in which
you are assisting in the adjudicatory process. Another safeguard
would be your basing your advice to the Board on objective
standards, such as established administrative, judicial and
statutory precedent. See, EC-COI-82-181, in which the Commission  
concluded that an assistant city solicitor could serve as a hearing officer in a
civil service disciplinary proceeding in which his supervisor was
an advocate subject to similar safeguards under s.23.
 

Conclusion:


Given your receipt of a s.6(3) exemption your continued
arrangement under which you perform divided administrative
responsibilities for the Board is permissible under G.L. c. 268A
as long as you continue to observe the safeguards of s.23. Whether
your participation in any case could rise to the level of bias is
more appropriately addressed through an appeal of an Board
administrative decision to the courts. See, G.L. c. 30A, s.14.
Finally, we do not have the authority to construe either the Code
of Professional Responsibility or the Code of Judicial Conduct, and
we suggest that you pursue constructions of those codes with
appropriate sources.

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[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling

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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. (G.L. c. 268A, s.1(k)).

[2] Under s.6(3), an appointing official following receipt of
a disclosure of a financial interest from a subordinate state
employee may make a written determination that the interest is not so
substantial as to be deemed likely to affect the integrity of
the services which the commonwealth may expect from the
employee, in which case it shall not be a violation for the
employee to participate in the particular matter. Copies of
such written determination shall be forwarded to the employee
and filed with the state ethics commission by the person who
made the determination. Such copy shall be retained by the
commission for a period of six years.

 

End Of Decision