February 3, 1988

 

FACTS:

You are a part-time Assistant City Solicitor. Your position as Assistant City Solicitor has been designated by the City Council (and in your employment contract) as a "special municipal employee.  [1] In your capacity as Assistant City Solicitor, you give legal advice to the City Council.  You also maintain a private law practice. A potential client is a corporation which receives part of its funding from a municipal block grant.

You also are a principal stockholder and officer in two corporations which propose to enter into contractual arrangements with the City Redevelopment Authority (CRA).
 

QUESTIONS:

1. Does G.L. c. 268A permit your corporation to contract with the CRA?

2. Does G.L. c. 268A permit you to represent privately a corporation which receives half of its funding from private sources and half from a municipal block grant?

3. Does G.L. c. 268A permit you to represent privately an applicant before the City Council for a zoning variance or special permit?
 

ANSWERS:

1. Yes.

2. Yes, if you are paid by the corporation's private funding or qualify for an exemption to the law.

3. No.
 

DISCUSSION:

1. Contract with CRA

Section 20 generally prohibits a municipal employee from having a direct or indirect financial interest in a contract made by a municipal agency. The CRA is a municipal agency. G.L. c. 121B, s.7. If corporations in which you hold one percent or more of the stock[2] contract with the CRA, you would have a prohibited
financial interest in the contract unless you qualified for an exemption. Because your position as Assistant City Solicitor has been designated as a "special municipal employee," you may qualify for the exemption discussed below.

The conflict of interest law provides that a special municipal employee may have a financial interest in a city contract provided that she "does not participate in or have official responsibility for any of the activities of the contracting agency..." (which in this case is the CRA) and she files with the clerk of the city' a statement making full disclosure of her interest in both her employment contract and the contract with the CRA. G.L. c. 268A, s.20(c). As Assistant City Solicitor you do not participate in or have official responsibility for the activities of the CRA;[3] therefore, you qualify for this exemption to the law and should file the written disclosure statement with the City Clerk.


2. Representation of Private Corporation

You propose to represent a private corporation which receives half of its funding from a municipal block grant. A grant is considered a contract for purposes of the conflict of interest law.  EC-COI-82-75; 81-172; 81-64; 81-7. You would have a prohibited financial interest in the corporation's receipt of this block grant
money if the company used this money to compensate you as its attorney. You may not have a financial interest in this contract (i.e., the grant money) unless you qualify for an exemption to the law.[4]

A s.20(d) exemption allows a special municipal employee, who discloses with the city clerk her interest in municipal contracts, to have a financial interest in such contracts if the city council exempts her interest from the conflict law. Thus, you may request the City Council to review this situation and, if they approve of
this exemption, you may represent the private corporation and be paid by public money to do so.[5]

If you comply with the restrictions of the conflict of interest law and are eligible for an exemption to the law so that you may be paid (in part by public money) to represent the private corporation, you are still required to observe the prohibitions of s.17. Section 17 addresses permissible "after hours" employment for
municipal employees; it states that a municipal employee may not act as the attorney for a private party "in connection with any particular matter in which the city has a direct and substantial interest." G.L. c. 268A, s.17(c).[6] For example, any litigation which implicated the City's rights and liabilities would be of direct and substantial interest to the City, whereas a lawsuit between two private parties generally would not be of direct and substantial interest.


3. Representation of Applicant for Zoning Variance

As set forth above, you may represent a private party, provided the representation is not "in connection with any particular matter in which the city has a direct and substantial interest."  The only available exemption is for a special municipal employee who has not participated in the matter as a municipal employee and has not had official responsibility for the matter, provided that the matter is not pending in the municipal agency in which the employee works.

The City-Solicitor's Office is responsible for providing the City-Council legal advice concerning the granting or denying of a zoning variance and defending the Council's actions if there is an appeal. Consequently, this matter is pending in the City Solicitor's Office, the municipal agency where you work. Thus, you may not represent a private party on this matter.

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[1] "Special municipal employee," is defined as "a municipal employee who is not a mayor, a member of a board of aldermen, a member of a city council or a selectman in a town with a population in excess of five thousand persons, and whose position or employment has been expressly classified by the city council, or
board of selectmen as that of a special employee under the terms and provisions of this chapter. 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 she 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."  G.L.c. 268A, s.1(n).

[2] The prohibitions of 20 do not apply if the "financial interest consists of the ownership of less than one percent of the stock of a corporation." G.L c. 268A s.20(2).

[3] You have stated that the CRA retains its own legal counsel, separate and distinct from the City Solicitor's Office.

[4] An exemption is available to a special municipal employee who has a financial interest in a municipal contract provided that the employee does not participate in or have official responsibility for any of the activities of the contracting agency and files a disclosure statement with the city clerk. The city block grant is awarded by the City Council. As assistant City Solicitor, you do participate in the activities of the City Council (to the extent that you advise the City Council on the legality of its actions) Therefore, you are ineligible for a s.20 (c) exemption.

[5] If the corporation compensates you entirely from private funds (i.e., the block grant money is used for other purposes), you will nonetheless be subject to the s.17 (c) limitations described above.

[6] An exemption to the law allows special municipal employees to act as the attorney for private parties unless the subject of the representation is one (a) in which the employee has participated, (b) is, or within one year was, the subject of the employee's official responsibilities, or (c) is pending in the municipal agency in which the employee works. Because you are an Assistant City Solicitor, any legal matter which is of direct and substantial interest to the City will necessarily be pending in the City's Law Department Therefore, this exemption would not appear to change the results set forth above unless you work as assistant City Solicitor less than 60 days for any period of 365 consecutive days. See, EC-COI-85-49.

End Of Decision