October 19, 1995

 

FACTS:



Until last year, you were Chairman of the Zoning By-law Study
Committee in a town ("Town"). The Committee, which was established
by and reports to the Board of Selectmen, is made up of town
residents and has been assigned the project of revising and
restructuring the Town's zoning bylaws. The Committee intends to
completely revise and rewrite the entire zoning bylaws, rather than
recommend amending only certain parts.

Although you no longer reside in the Town, the Board of
Selectmen would like to retain you as paid counsel to assist
the Committee in preparing the revised zoning bylaws, because current
Committee members are not familiar with certain legal requirements
of zoning.

Your private law practice occasionally requires you to
represent clients before the Town's boards and agencies.


QUESTIONS:


1. May you represent property owners before the Zoning Board
of Appeals or other authorities in Town?

2. After the new zoning bylaws are enacted, may you represent
clients before the Zoning Board of Appeals or other Town
authorities?
 


ANSWER:

1. Yes, subject to the limitations set forth below.

2. Yes, subject to the limitations set forth below.

 


DISCUSSION:


If you were to be retained by the Town as legal consultant to
the Committee, you would become a municipal employee.[1] EC-COI-
87-8. Sections 17, 18, and 23 of the conflict law apply to your
questions.


 

Restrictions as a Current Municipal Employee


Section 17


Section 17(a) prohibits a municipal employee from receiving
compensation[2] from anyone, other than the municipality, in
connection with a particular matter[3] in which the municipality is
a party or has a direct and substantial interest. In addition,
s.17(c) prohibits a municipal employee from acting as an agent or
attorney for anyone other than the municipality in any claim
against the municipality or in connection with any particular
matter in which the municipality has a direct and substantial
interest.

The broad sweep of s.17 would preclude you as a current
municipal employee from representing private parties in any matter
in which the Town had a direct and substantial interest, not only
matters involving the Zoning Board of Appeals, zoning issues or
other permit granting authorities. See, e.g., EC-COI-89-30; 88-21.

Section 17 would apply somewhat less restrictively to you,
however, if you were designated a special municipal employee.[4]
A special municipal employee is subject to the restrictions of
s.17(a) and (c) only in relation to a particular matter (a) in
which he has at any time participated[5] as a municipal employee,
or (b) which is or within one year has been subject of his official
responsibility, or (c) which is pending in the municipal agency in
which he is serving. Clause (c) does not apply in the case of a
special municipal employee who serves on no more than sixty days
during any period of three hundred and sixty-five consecutive
days.[6]

For example, if you were a special municipal employee as a
consultant to the Committee, you would be prohibited from also
representing a client seeking

Page 645

to amend the zoning bylaws, because amending the bylaws would
constitute a particular matter in which you participated or which
was within your official responsibility.[7] Section 17 would not,
however, preclude you from representing private clients in zoning
and permitting issues where you were retained only to interpret and
apply the current bylaws or in matters involving other municipal
agencies or boards.

If you were to serve for more than 60 days during a 365-day
period, however, the s.17 prohibition would apply to any particular
matter pending before the agency in which you serve. In your case,
the consultant position was established by and reports to the Board
of Selectmen. Therefore, you could not represent private clients
or be compensated by anyone other than the Town in connection with
a particular matter before the Board of Selectmen.


 

Section 23


Section 23 describes standards of conduct that apply to all
public employees. Section 23(b)(2) provides that no municipal
employee may use his official position to secure unwarranted
privileges or exemptions for himself or others. Section 23(b)(3)
prohibits a municipal employee from engaging in any conduct which
gives a reasonable basis for the impression that any person or
entity can improperly influence or unduly enjoy his favor in the
performance of his duties, or that he is likely to act or fail to
act as a result of kinship, rank, or position of any person. If
there is an appearance of a conflict under s.23(b)(3), you must
file a written disclosure in advance to your appointing authority
of all the facts and circumstances about the matter and continue to
perform your Committee work using objective criteria. EC-COI-89-
19.
For example, a challenge to the validity of a current zoning
bylaw could raise concerns under s.23 if the issue were peculiar to
your client and the same issue were being contemplated by the
Committee.

Finally, s.23(c) prohibits a municipal employee from engaging
in any business or professional activity that will require him to
disclose confidential information which he has gained by reason of
his official position or authority, and from improperly disclosing
such confidential materials[8] or using such information to further
his private interests.[9]


 

Restrictions after Municipal Employment


Section 18


Section 18(a) prohibits a former municipal employee from
acting as an agent or attorney for, or receiving compensation from,
anyone other than the municipality or a municipal agency in
connection with any particular matter in which the municipality or
a municipal agency is a party or has a direct and substantial
interest and in which he participated as a municipal employee.

Section 18(b) prohibits a former municipal employee, for one
year, from appearing personally[10] before any officer or agency of
the municipality as an agent or attorney for anyone other than the
municipality or a municipal agency in connection with any
particular matter in which the municipality is a party or has a
direct and substantial interest and which was under official
responsibility[11] any time within a period of two years prior to
the termination of his municipal employment.

As a former legal consultant to the Committee, you will be
barred from working for anyone other than the Town in challenging
the validity, or supporting the wisdom,[12] of the Town's revised
zoning bylaws because you participated in their revision. The only
particular matter that will be under your official responsibility
also will be the only matter in which you participate as a
municipal employee --- the revision of the zoning bylaws.
Therefore, the prohibition under s.18(b) will be subsumed under
s.18(a).[13]

The Commission has concluded that regulations, once
promulgated, are not "particular matters" as defined in s.1(k),
however, "the process by which they are adopted and the
determination that was initially made as to their validity will be
considered particular matters." EC-COI-81-34. See also, EC-COI-
87-34; 85-11
. Although we concluded in EC-COI-85-22 that a
proposed zoning amendment is a particular matter under s.1(k),[14]
we have not heretofore determined whether a comprehensive revision
of zoning bylaws should be analyzed, for the purposes of the
conflict law, in the same manner as the creation of regulations.
Applying our analysis in EC-COI-87-34, we conclude that the
revision process should receive the same treatment under the
conflict law.

In EC-COI-87-34, a state employee had reviewed a draft of
proposed regulations, suggested changes, and met with industry
representatives regarding the draft. As a former state employee,
he then wished to represent private clients in discussions with
state officials in connection with promulgating the draft. We
concluded that because the employee had participated
personally and substantially in the promulgation process and
made decisions about the public policy of some or all of the
regulations, he was permanently prohibited from challenging
the wisdom or legality of the draft regulation.

The underlying principle in our reasoning was that former
public employees should not be able to attack

Page 646

regulations they helped create. EC-COI-87-34. As in that case,
there may be circumstances in which your private clients'
challenges to the revised bylaws raise the same issues being
addressed in your Committee work. Therefore, your consulting work
to rewrite the zoning bylaws and a challenge by your private client
to the validity of those bylaws would involve the same
determination or particular matter.

Once the revised bylaws have become effective, you may
represent private parties in cases related to the interpretation or
application of the new bylaws. EC-COI-87-34. The goal of s.18 is
not to bar former public employees from benefitting from the
general subject-matter expertise they acquired in government
service, but rather from selling to private interests their
familiarity with the facts of particular matters that are of
continuing concern to their former government employer. EC-COI-92-
17
.[15] Lawyers who develop an area of expertise should not be
prohibited from representing clients in that area, because such a
prohibition would unduly restrict their practice and deprive their
clients of needed expertise. EC-COI-87-34.[16] [17]

 


-------------------------


[1] "Municipal employee," a person performing services for or
holding an office, position, employment or membership in a
municipal 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,
but excluding (1) elected members of a town meeting and (2) members
of a charter commission established under Article LXXXIX of the
Amendments to the Constitution. G.L. c. 268A, s.1(g).

[2] "Compensation," any money, thing of value or economic
benefit conferred on or received by any person in return for
services rendered or to be rendered by himself or another. G.L. c.
268A, s.1(a).

[3] "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. G.L. c. 268A, s.1(k).

[4] "Special municipal employee", a municipal employee who is
not a mayor, a member of the board of aldermen, a member of the
city council, or a selectman in a town with a population in excess
of ten thousand persons and whose position has been expressly
classified by the city council, or board of aldermen if there is no
city council, or board of selectmen, as that of a special employee
under the terms and provisions of this chapter; provided, however,
that a selectman in a town with a population of ten thousand or
fewer persons shall be a special municipal employee without being
expressly so classified. All employees who hold equivalent
offices, positions, employment or membership in the same municipal
agency shall have the same classification; provided, however, no
municipal employee shall be classified as a "special municipal
employee" unless he occupies a position for which no compensation
is provided or which, by its classification in the municipal agency
involved or by the terms of the contract or conditions of
employment, permits personal or private employment during normal
working hours, or unless he in fact does not earn compensation as
a municipal employee for an aggregate of more than eight hundred
hours during the preceding three hundred and sixty-five days. For
this purpose compensation by the day shall be considered as
equivalent to compensation for seven hours per day. A special
municipal employee shall be in such status on days for which he is
not compensated as well as on days on which he earns compensation.
All employees of any city or town wherein no such classification
has been made shall be deemed to be "municipal employees" and shall
be subject to all the provisions of this chapter with respect
thereto without exception. G.L. c. 268A, s.1(n).

[5] "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. G.L. c. 268A, s.1(j).

[6] The calculation of the sixty-day limit is based upon the
following factors. First, a day is not counted unless services are
actually performed for the Town on that day. Second, if you serve
only part of a day for the Town, you will be considered to have
served for a complete day. Third, if you assign one of your firm's
associates to perform the work under your supervision, you will be
considered as having performed billable services on such days.
See EC-COI-85-49.

[7] See discussion infra under Section 18.

[8] The materials are defined as "materials or data within the
exemption to the definition of public records as defined by G. L.
c. 4, s.7." G. L. c. 268A, s.23(c)(2).

[9] As legal consultant to the Committee, you also will be
subject to additional restrictions under s.19. The pertinent
restriction is that a municipal employee may not participate in any
particular matter in which he, an immediate family member or
partner, a business organization in which he is an officer,
director, trustee, partner, or employee has a reasonably
foreseeable financial interest. Such a financial interest may be
of any size and may be either positive or negative, but it must,
however, be direct and immediate or reasonably foreseeable in order
to implicate s.19. EC-COI-86-25; 84-123; 84-96. You could not,
for example, continue to revise the zoning bylaws if you or any of
the

Page 647

interested parties under s.19 had a reasonably foreseeable
financial interest in the outcome of your official work.

If there is such an interest, however, you may qualify for an
exemption. Under s.19(b)(1), you may participate in a particular
matter affecting such a private financial interest if, prior to
participating, you (1) advise your appointing official of the
nature and circumstances of the particular matter; (2) make a full
written disclosure to your appointing official of the financial
interest; and (3) receive a written determination in advance from
your appointing official that the financial interest is not so
substantial as to be deemed likely to affect the integrity of your
services to the Town.

For example, s.19 issues would be raised if other members of
your firm were to represent a client for a fee when the client
sought to expand a commercial zoning district to include a site
formerly restricted from commercial development. We have presumed
that a law firm has a financial interest in all matters in which it
represents a client for a fee. EC-COI-89-5 n. 7.

[10] Appearing personally includes the submission of written
correspondence, telephone calls, or any contact with the intent to
influence. See EC-COI-87-27.

[11] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s.1(i).

[12] See EC-COI-87-34, n. 1.

[13] We do not have sufficient information about the Committee
to determine whether it constitutes a municipal agency under the
conflict law. See, e.g. EC-COI-88-2 and 85-22 (for discussions of
the criteria required to make such a determination). If the
Committee were deemed to be a municipal agency, then, as a
former Chairman, you would be considered now to be a former municipal
employee. As such, the advice under s.18 currently would apply to
you. In the event you decide not to accept employment as a legal
consultant for the Town and you intend to represent private clients
before the Town in matters involving the revised zoning bylaws, you
should seek further guidance from the Commission in order to
determine whether your prior participation as Chairman of the
Committee constituted municipal employment under the conflict law.

[14] The proposed amendment in that case was needed to allow
developing a specific multifamily housing project.

[15] "[O]nce the regulation is in final form, there exists a
permissible scope of representation. . . . [A] former state
employee may properly represent a private party in a case related
to the interpretation or application of a regulation which he had
previously participated in drafting as a state employee. This
interpretation is consistent with the policy that lawyers who
develop a specialized area of expertise should not be perpetually
precluded from representing private clients in that area of
expertise. Such a ban would unduly restrict the livelihood of
specialized attorneys and deprive clients of needed expertise. . .
. [S]uch representation may not include an attack on the validity
of the regulations." EC-COI-87-34 (emphasis added).

[16] You also ask whether s.18 would impose a limit on your
compensation for your services to the Committee in order to permit
you to appear before the Zoning Board of Appeals or other Town
boards after you complete municipal employment. This question
relates to the following paragraph in s.18:

Notwithstanding the provisions of clause (b), a former
town counsel who acted in such capacity on a salary or
retainer of less than two thousand dollars per year shall
be prohibited from appearing personally before any agency
of the city or town as agent or attorney for anyone other
than the city or town only in connection with any
particular matter in which the same city or town is a
party or has a direct and substantial interest and in
which he participated while so employed. (emphasis added)

This paragraph allows the restrictions of s.18(b) to be applied
less restrictively to counsel whose legal services for a
municipality may have had a limited scope. The implication is that
such counsel should not be overly restricted in other matters
simply because of his rather limited municipal employment. In your
circumstances, however, we need not decide whether you would be
considered a former "town counsel" under this paragraph because
this restriction would apply neither to your compensation from the
Town nor to the scope of your private practice before Town
agencies. Whether you were to receive more or less than $2,000 per
year for your Committee work would not change the effect of
s.18(b)'s restrictions upon your private practice because you would
have had official responsibility over and participated in only the
revision of the zoning bylaws.

[17] You should also note that s.s.18(c) and (d) may apply to
your fellow attorneys in your law practice. Under these
provisions, the partners of a former municipal employee are subject
to the same restrictions as the municipal employee. The Commission
has concluded that the term "partner" is not limited to formal
partnership agreements. See, e.g., EC-COI-93-24; 93-9; 85-62.
Because the letterhead for your law practice includes the
designation "P.C.", we call your attention especially to the
analysis in EC-COI-93-24 about whether a law practice set up as a
professional corporation is considered a partnership under the
conflict law. In that case, we concluded that a professional
corporation was not a partnership. Should your law practice's
professional corporation not meet the tests of that analysis, you
should seek further guidance from the Commission.

Page 648

 

End Of Decision