September 10, 1992

FACTS:


You are a member of ABC Housing Authority (ABC). Chapter 121B
of the General Laws sets up a structure whereby a housing authority
compensates its members based upon a percentage of the rents from
projects commenced prior to a certain date. The Executive Office of
Communities and Development (EOCD), as the funding agency for
housing authorities, pursuant to statute, is required to include
such amounts in an authority's budget authorizations. In your
opinion, EOCD has failed to comply with this requirement. The ABC
is contemplating a lawsuit in which it will seek to enforce its
statutory and contractual rights. The ABC, as plaintiff in the
lawsuit, seeks to utilize its legal counsel. Although individual
Members may implead as plaintiffs, it is not foreseen that the
individuals will be represented by ABC's legal counsel.

Additionally, each Member has filed individually with the Town
Retirement Board (Board) for membership and has been rejected by
the Board. Each Member, using private legal counsel, has
individually appealed this rejection. The case of one of the
Members has already been decided by the Contributory Retirement
Appeals Board in favor of acceptance and has been returned to the
Board for consideration and compliance with the Board's own
regulations. The ABC now intends to have its legal counsel
represent all of its present and future special municipal
employees, which includes the individual Member referred to above,
with regard to the limited issue of the Board's compliance with its
regulations and the eligibility for membership of ABC's special
municipal employees. Any other issues of specific concern to the
individual Member will be handled by the Member's private counsel.

According to the ABC, a number of benefits are conferred upon
it by having its counsel prosecute this limited issue. Specifically
you state that public policy requires that the employer seek to
uphold statutorily granted rights common to classes of its
employees. You further state that pursuit by the ABC of retirement
benefits for its employees will encourage loyalty and foster a
sense of common cause throughout the ABC, leading to better job
performance by all employees. Also, you state that with regard to
the position of Member, the availability of retirement benefits
would encourage more and better qualified persons to run for this
office. Finally, you state that the ABC would be protecting its
employees from a discriminatory application of the law in that
numerous similarly situated employees in Town and neighboring towns
are allowed membership in the retirement system.


QUESTIONS:


1. Does G.L. c. 268A permit legal counsel for the ABC to
pursue a lawsuit on behalf of the ABC against EOCD with regard to
the fee used for compensating the Members?

2. Does G.L. c. 268A permit counsel for the ABC to represent
an individual Member with regard to the limited issue of the
Board's compliance with its own regulations and the eligibility of
all ABC special municipal employees to be members of the local
retirement system?


ANSWERS:


1. Yes.

2. Yes.


DISCUSSION:


The ABC's legal counsel is a municipal employee for purposes
of the conflict of interest law.[1] Section 17(c) generally
prohibits a municipal employee, otherwise than in the proper
discharge of his official duties, from acting as agent or attorney
for anyone other than the municipality or a municipal agency in
connection with any particular matter[2] in which the municipality
is a party or has a direct and substantial interest.

We must therefore determine whether the involvement of the ABC
legal counsel in the two proposed actions would constitute a proper
part of the official duties of the legal counsel. In that regard,
we have previously held that G.L. c. 268A provides latitude to an
employee's appointing official to determine what will constitute
the proper discharge of official duties, and the Commission will
customarily defer to the appointing official's

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discretion. However, the Commission has also previously held that
an appointing official's discretion is not unlimited.

Thus, in EC-COI-83-137 the Commission decided that legal
counsel for the chairman of a committee of the General Court could
not file a lawsuit on behalf of plaintiffs (the chairman and other
members of the Committee, and their employees), in their private
capacity as residents of the Commonwealth, challenging a law which
would affect them as private individuals.[3] The Commission found
that as a legislative employee, the attorney's responsibilities
included research and drafting services for the Committee. The
Commission went on to state that those responsibilities could
reasonably extend to representing individuals in their capacity as
legislators in a court suit, for example challenging a particular
law or regulation as it affects the legislators or leadership in
their official capacity. However, in that particular case, the
Commission found that there was no "distinct institutional
interest" which would be served by pursuing the lawsuit, and
therefore the attorney's representation of the Chairman and other
members of the Committee was prohibited by s. 17(c). See also
EC-COI-88-17; compare EC-COI-85-73 (consultant to Attorney General
could concurrently represent creditors committee where purpose for
employment by Attorney General could not be achieved without such
representation of the committee); EC-COI-83-20 (an attorney
employed in the legal department of a state agency may represent a
former employee of the agency, for no compensation beyond his own
salary, in connection with matters arising from the former
employee's actions as a state official, as such representation is
within the proper discharge of his official duties as determined by
his superiors).[4]

With regard to the first proposed lawsuit to be brought
against the EOCD to enforce the ABC's contractual rights, because
ABC legal counsel will be representing the ABC rather than any of
the individual Members, representation by ABC counsel is clearly
not prohibited by s. 17(c).

As to representation of an individual Member by ABC legal
counsel in the second proposed action, we find that the exemption
provided by s. 17(c) applies. Given the litigation strategy as you
describe it, wherein ABC legal counsel will only advocate the
limited issue of the Board's compliance with its own regulations
and the eligibility of the individual Member as well as all other
ABC special municipal employees for membership in the retirement
system, we find that such legal representation is a proper
discharge of the official duties of the ABC legal counsel, and
therefore is exempt from the prohibitions of s. 17(c).[5] As the
Commission has previously held, where a public official seeks to
challenge a law or regulation as it affects him in his official
capacity, the official duties of a public agency's attorney can
reasonably extend to cover representation of the individual public
official in such a matter. EC-COI-83-137. Moreover, where as here,
you have specified several credible benefits to the ABC and its
special municipal employees as a class, we find that this
particular lawsuit serves a distinct institutional interest. The
proposed representation by the ABC's legal counsel will not
therefore violate s. 17(c).[6]

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

[1] We note that pursuant to G.L. c. 121B, s. 7, an attorney
who performs professional services for a housing authority on a
part-time, intermittent or consultant basis is a special municipal
employee for purposes of G.L. c. 268A. However, the fact that the
legal counsel is a special municipal employee has no bearing on the
analysis contained herein.

[2] "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(c).

[3] In Commission Advisory No. 6 (Municipal Lawyers
Representing Both a Municipal Employee and a Municipality in the
Same Suit), the Commission concluded that "[a]s a matter of sound
policy, . . ., the proper discharge of a municipal attorney's
duties can also reasonably extend to representing a municipal
employee in the employee's official and individual capacity,
provided that the appropriate authorization has been given by the
attorney's appointing official." We note however, that the advice
contained in this Advisory pertains to a municipal official being
sued in both his official and individual capacities. Because the
circumstances surrounding representation by the ABC attorney are

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distinguishable, we will not rely upon Advisory No. 6, nor should this opinion be read to alter the advice contained in that
Advisory.

[4] Section 17(a) prohibits compensation from third parties
unless it is provided "by law for the proper discharge of official
duties" (emphasis added). Therefore, s. 17(a) will prohibit ABC's
legal counsel from receiving private compensation from the
individual Member as well as the ABC, absent a statutory provision
or by-law allowing such receipt of compensation. See EC-COI-92-10
n.5. See also EC-COI-88-6
(s. 17 [a] prohibits town counsel from
receiving private compensation for representing town official in
State Ethics Commission enforcement proceeding).

[5] You tell us that representation of the individual Member
as to any issues beyond the limited question of law which affects
all of the ABC's special municipal employees will be handled by the
Member's personal legal counsel.

[6] This opinion is limited to the application of G.L. c. 268A
to the circumstances described. In other words, nothing in this
opinion should be construed as commenting on permissibility of the
proposed representation of the individual Member under the
disciplinary rules governing the conduct of attorneys. You should
therefore inquire of the Board of Bar Overseers or the
Massachusetts Bar Association whether the proposed representation
by the ABC's legal counsel will be prohibited by any of the
restrictions on the conduct of attorneys.

Page 446


End Of Decision