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?


Page 192


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 alfect 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