September 14, 1988

FACTS:


You are an attorney with a state agency. You also currently
serve as a conservation commissioner for a city. This position does
not have special municipal employee status. You are considering
leaving state service and becoming an associate in a private law
firm that represents clients before municipal agencies of the city
you serve and that represents clients before state agencies on
matters involving the city.


QUESTIONS:


1. May you, consistent with the conflict of interest law, appear
before the city's conservation commission or other municipal
agencies on behalf of private clients?

2. May you, consistent with the conflict of interest law, appear
before state agencies such as the Appellate Tax Board, the
Alcoholic Beverages Control Commission, or the Massachusetts
Housing Appeal Commission on behalf of private clients who are
appealing decisions of the city's municipal agencies?

3. Would the conflict of interest law constrain the partners or
other employees of the firm that would employ you in their
representation of clients before the municipal agencies or before
state agencies on behalf of private clients on matters involving
the city?


ANSWER:


1. No, as the representation would inevitably involve matters
of direct and substantial interest to the city.

2. No, as the representation would inevitably involve matters
of direct and substantial interest to the city.

3. No, as the restrictions found in G.L. c. 268A, s.s.5 and 18
extend only to the partnership relationship.


DISCUSSION:


1. Current Municipal Employee


In your capacity as a member of the city's conservation
commission, you are a municipal employee for the purposes of the
conflict law, See, G.L. c. 268A, s.1(g). Sections 17,19 and 23
would apply, therefore, to your situation.


Section 17


This section prohibits you, in relevant part, from directly or
indirectly receiving or requesting compensation from anyone other
than the city in relation to any particular matter[1] in which
the city is a party or has a direct and substantial interest. For
example, you may not represent clients before the city's
conservation commission since those matters would be particular
matters in which the city is a party or has a direct and
substantial

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interest. This prohibition effectively precludes any case work you
might like to do, on behalf of anyone other than the city, before
city's boards and agencies or any case work on behalf of private
entities you might like to do before state agencies such as the
Appellate Tax Board, the Alcoholic Beverage Control Commission, or
the Massachusetts Housing Appeal Commission where a decision of a
municipal agency would be in controversy. It is hard to hypothesize
a 'particular matter' involving municipal action in which it can
be said with assurance that the municipal interest is indirect or
insubstantial." Braucher, Conflict of Interest in Massachusetts,
in Perspectives of Law: Essays for Austin Wakeman Scott 1,16
(1964); EC-COI84-117. In addition, this section of the statute
would require you to guard against the indirect receipt, through
your associate's salary, of compensation in these matters, See,
EC-COI-83-128; EC-COI-81-12.


Section 19


Unders.19, you are prohibited, in relevant part, from
participating[2] as a municipal employee in a particular matter in
which you, your immediate family[3] or a business organization in
which you are serving as an officer or employee has a financial
interest. This section would be implicated if members of the law
firm that employs you represented parties before the conservation
commission while you were a member of the Commission. See, In the
Matter of Henry A. Brawley
, 1982 Ethics Commission 84.

One of the s.19(b)'s exemptions may be available to you,
however, if you advise your appointing authority of the nature and
circumstances of the particular matter and disclose your financial
interest. Your appointing official may then 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
municipality may expect from you. You must abstain from all matters
covered by this section unless and until such a determination is
made.


2. Current State Employee


For the purposes of the conflict of interest law, as a full time
attorney with a state agency, you are a state employee. See, G.L.c.
268A, s.1(q). Accordingly, s.4 is applicable to your situation.
This section indicates that you may hold elective or appointive
office in the city provided that, in that office, you do not vote
or act on any matter which is within the purview of the state
agency by which you are employed or over which you have official
responsibility. See, EC-COI-8-62. You may not, for example,
participate in city's conservation commission decisions on G.L. c.
61 land in the city in that the state is involved in the
classification of forest lands and the removal of lands from that
classification.


3. Former State Employee


Once you terminate your state employment, you will be a former
state employee for the purposes of G.L.c. 268A.


Section 5(a)


Section 5(a) prohibits a former state employee from acting as
an agent for or receiving compensation directly or indirectly from
anyone other than the state in connection with any particular
matter in which the state or a state agency is a party or has a
direct and substantial interest and the matter was one in which the
employee officially participated. This section focuses on matters
in which you participated as a state employee. A particular matter
may include a recommendation, decision, or determination. For
example, under this section, if prior to leaving the state agency,
you recommended litigation in a particular case, you would be
forever barred from participating in any aspect of that matter. In
addition, this section of the statute would require you to guard
against the indirect receipt, through your associate's salary, of
compensation in these matters.


Section 5(b)


Section 5(b) prohibits a former state employee from personally
appearing before any court or agency of the Commonwealth within one
year after leaving state service in connection with any particular
matter in which the state or a state agency is a party or has a
direct and substantial interest and that matter was under the
official responsibility of the employee within two years prior to
the termination of such state employment. In other words, the date
you terminate from state service would determine the two year
period in which particular matters under your official
responsibility would count for the purposes of this section. See,
EC-COI-82-138
. You would be prohibited from personally appearing,
for one year, as an agent of anyone other than the state, before
any court or state agency in connection with any particular matter
which was under your responsibility at the state agency for the
two years prior to your leaving state employment. For example, if
you had official responsibility for several attorneys or paralegals
who made litigation decisions, you may not receive compensation
from anyone other than the state and you may not personally appear
before any state agency for one year after you terminate state
service, in connection with these matters.


Section 23


Section 23, the standards of conduct provision, would also apply
to you as a former state employee. Section 23(c) prohibits a former
state employee from disclosing

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confidential information which was acquired in his state position
or from using such information to further his personal interest.
EC-COI-85-23.

You should also be aware that issues under the standards of
conduct provision might be raised by your appearance before your
former agency. Section 23(b) (3) applies to a current state
employee who deals with you if that employee's actions could
reasonably appear to be improperly affected by a prior business
relationship. For example, this section might present issues for
any state employee who your co-worker or subordinate if that
employee unduly favors you in his or her official acts.


4.Employer of a Current Municipal Employee and a Former State
Employee


Although G.L. c. 268A, s.18 places restrictions on the partners
of a former or current municipal employee, none of these
restrictions are applicable to the employer of a former or current
municipal employee. The relationship you would have to this firm
appears to have none of the characteristics of partnership and, as
a result, s.18(d)'s restrictions are not implicated in this
situation. Similarly, although G.L. c. 268A, s.5 places
restrictions on the partners of a former state employee, they would
not be applicable here.[4]

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[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, deternnination, finding, but excluding enactment
of general legislation by the general count 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] "Participate," participate in agency action or in a particular
matter personally and substantaally 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).

[3] "Immediate family," the employee and his spouse, and their
parents, children, brothers and sisters. G.L. c. 268A, s.1(e).

[4] You should note that partnership status may be easily acquired
if, for instance, a group create a public appearance of a
partnership. See, e.g., EC-COI-84-78; EC-COI-80-43.

End Of Decision