April 13, 1992

FACTS:


You are the members of the Board of Selectmen in a town
(Town). For several years, the Town has actively opposed the
development of a privately owned project to be located in a
neighboring town (Town II), just over the Town's border. The Town
has retained a law firm as special town counsel in connection with
this matter. Similarly, a citizens group composed of Town and Town
II citizens has also opposed the project and has retained another
law firm (the "law firm") for the same purpose.

Presently pending in Superior Court are two actions filed by
the Town and the private group which seek to overturn approval
given to the project developer by a state agency. These two actions
have been consolidated, and the Town and the private group have
jointly prepared pleadings and memoranda.

The Town would like to pool its resources with the private
group through an appropriate Town Meeting mechanism to fund the
services of the law firm for future administrative and judicial
litigation. Both the Town and the private group have limited
resources available to oppose the project and believe that the
pooling of resources would advance a compelling interest of the
Town. In connection with this desire, the Town has proposed the
adoption of a by-law to ensure compliance with G.L. c. 268A, s. 17.
The by-law, if adopted, would

Page 397


define the official duties of a special town counsel to include, on
a case-by-case basis, representation of individual citizens in
matters in which the Town is also a party. Specifically, the by-law
states that:

The purpose of this by-law is to allow the Town from time to
time to retain counsel who may also represent individual
citizens in matters in which the Town is also a party without
violating G.L. c. 268A, s. 17(a) and s. 17(c). Such dual
representation allows the Town to pool resources for a common
purpose and preserve scarce Town funds.

Pursuant to this by-law, the official duties of special town
counsel include representing individual citizens in
administrative and judicial proceedings in which the Town is
also a party, provided the interests of the Town would be
advanced by such dual representation and provided that such
dual representation would not cause a violation of rule
governing attorney conduct. Special town counsel shall
discharge such duties only when requested to do so in writing
by the Board of Selectmen. Prior to making such a request, the
Board of Selectmen shall consult with town counsel, who shall
advise the Board as to whether the interests of the Town would
be advanced by such dual representation. Town counsel shall
also supervise special town counsel in such instances and from
time to time shall render advice to the Town as to whether
this dual representation advances the interests of the Town
and conforms to law.


QUESTION:


Assuming that the above by-law is duly adopted by the members
of the Town Meeting, would the by-law permit a special town counsel
to represent, and be compensated by, both the Town and private
parties in connection with the same particular matters within the
confines of G.L. c. 268A, s. 17?


ANSWER:

Yes, because the by-law, which requires a case-by-case
determination as to whether the dual representation would advance
the interests of the Town, reflects an explicit legislative
authorization for all such contemplated arrangements.


DISCUSSION:


Section 17(a) of c. 268A, the Massachusetts conflict of
interest statute, provides that no municipal employee[1] shall,
otherwise than as provided by law for the proper discharge of
official duties, directly or indirectly receive or request
compensation[2] from anyone other than the city or town or
municipal agency in relation to any particular matter[3] in which
the same city or town is a party or has a direct and substantial
interest.

Section 17(c) of c. 268A provides that no municipal employee
shall, otherwise than in the proper discharge of his official
duties, act as agent or attorney for anyone other than the city or
town or municipal agency in prosecuting any claim against the same
city or town, or as agent or attorney for anyone in connection with
any particular matter in which the same city or town is a party or
has a direct and substantial interest.

Together, these sub-sections of c. 268A are designed to
prohibit divided loyalties. In other words, a municipal employee is
a municipal employee first and foremost and owes a duty of loyalty
to the municipality. Consequently, s. 17 is designed to prohibit an
individual from splitting his loyalties between a municipal job and
a private interest. See EC-COI-92-4 (discussing state counterpart
provision, s. 4); see also EC-COI-92-1; 90-12; 90-16; Buss, The
Massachusetts Conflict of Interest Statute: An Analysis
, 45 B.U.L.
Rev. 299, 322 (1965) (whenever a person is both a private and a
public employee, "[t]he appearance of potential impropriety is
raised - influence peddling, favoring his private connections, and
cheating the government. Whether or not any or all of these evils
result, confidence in government is undermined because the public
cannot be sure that they will not result"); Commonwealth v. Canon,
373 Mass. 494, 504 (1977) (dissent) (s. 17(a) reflects the maxim
that "a man cannot serve two masters." It seeks to preclude
circumstances leading to a conflict of loyalties by a public
employee. As such, it does not require a showing of any attempt to
influence - by action or inaction - official decisions. What is
required is merely a showing of an economic benefit received by the
employee for services rendered or to be rendered to the private
interests when his sole loyalty should be to the public interest).

In Town of Edgartown v. State Ethics Commission, 391 Mass. 83
(1984), the Massachusetts Supreme Judicial Court held that a
private attorney[4] was barred by s. 17 from simultaneously acting
as attorney for private parties

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and for the Town of Edgartown in a "common defense effort on
liability" in an Indian land claim case pending in federal court,
even though the interests were not adverse. The Court found that
the

language of the statute unambiguously prohibits the multiple
representation at issue here. Had the Legislature intended
that these prohibitions be limited to matters in which the
municipal employee is an adverse party or has a direct and
substantial adverse interest, the Legislature easily could
have accomplished that by inserting the word "adverse" before
"party" and before "interest,"or by employing some other
equally simple language.

Id. at 87 (emphasis in original); see also Commission Advisory No.
13 (Agency)
.

Even Edgartown makes clear, however, that s. 17 provides for
such dual representation under certain circumstances. Id. at 87
("[t]he only limitation on the statute's broad prohibition of
multiple representation is for conduct by an employee 'as provided
by law for the proper discharge of official duties'"). If the dual
representation is provided by law for the proper discharge of
official duties, s. 17 will not proscribe the conduct. G.L. c.
268A, s. 17(a), (c).[5]

We find that a by-law duly enacted by a municipality is a
"law" within the meaning of s. 17. See Amendment Article 2, s. 6
(as appearing in Amend. Art. 89) of the Amendments to the
Massachusetts Constitution which provides that:

Any city or town may, by the adoption, amendment, or repeal of
local ordinances or by-laws, exercise any power or function
which the general court has power to confer upon it, which is
not inconsistent with the constitution or laws enacted by the
general court in conformity with powers reserved to the
general court by section eight, and which is not denied,
either expressly or by clear implication, to the city or town
by its charter.

In addition, the Supreme Judicial Court has often defined the
word "law" broadly in appropriate contexts. "The word 'law' imports
a general rule of conduct with appropriate means for its
enforcement declared by some authority possessing sovereign power
over the subject." Cohen v. Attorney General, 357 Mass. 564, 570 n.
4 (1970); Opinion of the Justices, 262 Mass. 603, 604-605 (1928);
see also Pace v. City of Atlanta, 135 Ga. Ct. App. 399, 218 S.E.2d
128, 129 (1975) (municipal ordinance is a "special law" because
application is limited to municipality).

Further, the legislature has provided that violations of
by-laws can be made punishable by a fine of up to $300 for each
offense, and that all such by-laws are "binding upon all
inhabitants [of the city or town] and all persons within their
limits." G.L. c. 40, s. 21.

In the present case, the Town has proposed the enactment of a
by-law in order to permit special town counsels to also represent
private third parties under certain specified circumstances. We
find that the adoption of a by-law, which specifically provides for
a case-by-case determination as to whether dual representation
advances the interests of the Town, would cause the dual
representation and compensation as contemplated thereunder to be
"as provided by law for the proper discharge of official duties"
within the meaning of s. 17. See EC-COI-92-4 (a specifically
tailored regulation would be sufficient to permit compensation by
third parties under equivalent state statute, s.4). Such a by-law
would reflect an explicit legislative authorization of the
contemplated arrangement each time the Town must address a similar
issue. Cf. EC-COI-92-4, n. 9 (G.L. c. 15A, s. 22 did not reflect an
explicit legislative authorization of the proposed third party
compensation arrangement and, therefore, was not sufficient to make
the proposed arrangement "as provided by law"). Consequently, if
the proposed by-law is duly adopted by the Town, the Town may hire
special counsel who may also represent private parties in
connection with the same particular matters in which the Town is a
party or has a direct and substantial interest.

We note that the proposed by-law is not inconsistent with
the purposes of s. 17 as interpreted in Edgartown, supra, in that the
by-law would, in effect, authorize a form of "lead counsel"
arrangement. Edgartown at 90. Thus, we need not decide whether a
by-law purporting to authorize some other representation of private
parties by municipal employees would pass muster under s. 17.

This opinion is limited to the application of c. 268A to the
circumstances described. Nothing in this opinion should be
construed as commenting on the disciplinary rules governing the
conduct of attorneys. The Town should undertake a separate inquiry
with the Board of Bar

Page 399

Overseers or the Massachusetts Bar Association for further
information concerning rules subject to their jurisdiction and
expertise.

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

[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] The Court noted, in a footnote, that although it was clear
that the attorney was retained by Edgartown only for the one case,
the attorney was considered by the parties to be a town employee
within the meaning of the statute. Generally, an attorney providing
legal services to a municipality will become a municipal employee
for purposes of the conflict of interest law. See, e.g., EC-
COI-8246; 92-6
(which lists factors used by the Commission to
determine public employee status); 89-35 (same); cf. EC-COI-89-6
(employees of a large institution, who were not named in contract
with public entity, were not public employees). See also Buss,
supra at 311 (the statute "leaves no doubt that a lawyer, architect
or the like, rendering professional services to a municipal agency
whether paid or not would be a 'municipal employee'").

In the present case, it is clear that any individual who is
appointed as a special town counsel would become a "municipal
employee" within the meaning of c. 268A.

[5] By its own terms, s. 17(a) prohibits compensation from
third parties unless it is provided "by law for the proper
discharge of official duties." On the other hand, s. 17(c)
proscribes acting as agent or attorney, whether compensated or not,
unless such actions are within the "proper discharge of his
official duties," without reference to the necessity of a "law."
Edgartown had that there are "no meaningful distinctions among
these alternative qualifying phrases in the context of this case.
[Both] focus on the proper discharge of official duties." Id. at
87, n. 5. However, "the specific application of this qualifying
application is not clear." Id.

Compare, however, EC-COI-83-20 (an attorney employed in the
legal department of a state agency may represent a former employee
of that agency, for no compensation beyond his own salary, in
connection with matters arising from the former employee's actions
as a state official. The attorney's representation is within the
proper discharge of official duties as determined by his superiors
and would not violate s. 4(c)); and EC-COI-92-4 (a statute or
regulation is required to permit a third party to compensate a
state employee in relation to matters in which the Commonwealth is
a party or has a direct and substantial interest in order to avoid
a violation of s. 4(a)).

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End Of Decision