February 3, 1988

 

FACTS:

You are Town Counsel for the Town of ABC. The Enforcement Division of the State Ethics Commission (Commission) has alleged that one of the selectmen violated the state conflict of interest law by voting on a salary increase in which a family member had a financial interest. The vote for the increase was unanimous. You state that you did not advise the selectmen on the application of the conflict of interest law to this situation prior to the vote. You were present when the vote was taken.

The Commission has found reasonable cause to believe that the selectman violated s.19 of G.L. c. 268A by his participation in the vote on the salary increase. The selectman now wishes to retain you as his legal representative.
 

QUESTION:

May you, consistent with the conflict of interest law, be retained privately by the selectman to represent him in connection with the case against him before the Commission?
 

ANSWER:

No, as the representation will inevitably involve matters of direct and substantial interest to the Town.
 

DISCUSSION:

As Town Counsel, you are a municipal employee within the meaning of the G.L. c. 268A, the conflict of interest law. Section 17 of the conflict of interest law, which governs a municipal employee's "after-hours" employment, is relevant to your inquiry.


Section 17


Section 17 of the conflict of interest law provides that a municipal employee, such as a town counsel, may not act as the attorney for anyone other than the municipality in connection with any particular matter[1] in which the [municipality] is a party or has a direct and substantial interest." G.L. c. 268A, s.17(c).
Thus, your private representation of the selectman is only appropriate if the subject matter of the representation (the charge of a conflict of interest),the proceedings before the Commission, and the Commission's ultimate decision are not matters in which the Town "has a direct and substantial interest." G.L. c. 268A, s.17.
Whether the Town has a direct and substantial interest in a selectman's alleged violation of the conflict of interest law will depend on the specific circumstances of the case. In this case, the conflict of interest allegations and Commission proceedings and decision will inevitably affect the Town's interest in a number of ways.

A decision by the Commission concerning whether the selectman illegally participated in the vote in favor of the salary increase will provide direction to the Town's elected officials concerning similar votes in the future.[2] Beyond that, it is possible that if the vote were taken illegally, an action for recession of the vote may be advanced.

Furthermore, the Town itself might be subject to litigation as a result of a potentially prohibited action by one of its elected officials.

In addition, the board of selectmen may take action to censure publicly a selectman if he is found to have violated the conflict law. See, e.g., May v. Hall, Worcester Superior Court Action No.86-34501 (February 26, 1987) (where two Lunenberg Selectmen censured the third Selectman for a violation of s.23 of the
conflict law). Thus, under these circumstances, the Town will inevitably have a direct and substantial interest in the proceedings of the Commission to determine whether one of its officials violated the law.

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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, 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.

[2] The decision could also address the role of town counsel in such situations, particularly where you were present during the vote in question.

End Of Decision