March 13, 1991

FACTS:

Page 344

Your law firm is outside counsel to ABC Board (Board), a
division of state agency XYZ. Your firm now has been asked by a
municipal entity to represent it in an administrative proceeding
and litigation against XYZ in a matter unrelated to your
representation of ABC. You have informed us that, if M.G.L. c. 268A
permits this representation, your firm, pursuant to the Canons of
Ethics and Disciplinary Rules, would seek XYZ's consent to this
proposed representation.

This Commission has previously advised you that, as counsel
to the Board, you are an XYZ "special state employee" as that term
is defined in M.G.L. c. 268A, s.1(o). See, EC-COI-90-5. You inform
us that the matter in which you would represent the second client
is not one in which you have participated[1] as counsel to the
board or which has been the subject of your official
responsibility.[2] As you have noted, however, the new matter is
one which is pending in XYZ, the agency in which you are
serving.[3]

You inform us that you will likely be considered as providing
services to XYZ for a total of more than 60 days within the past
365 days, and are now considering representing the municipal entity
in a lawsuit against


QUESTION:


May an XYZ special state employee, who has already served more
than 60 days within the past 365 days in that status, now represent
a non-state public entity in a lawsuit against XYZ?


ANSWER:


No.


DISCUSSION:


As a special state employee, you are subject to the conflict
of interest law, M.G.L. c. 268A. Section 4 of c. 268A prohibits a
state employee from acting as an agent or attorney for anyone other
than the commonwealth or a state agency in connection with any
particular matter[4] in which the commonwealth or a state agency
is a party or has a direct and substantial interest.

As a special state employee, you are subject to the
prohibition only in relation to a particular matter (a) in which
you at any time participated as a state employee, (b) which is, or
within one year has been, the subject of your official
responsibility, or (c) which is pending in the same agency in which
you are serving. Clause (c) shall not apply, however, in the case
of a special state employee who serves "no more than sixty days
during any period of three hundred and sixty-five consecutive
days." (Emphasis added). c. 268A, s.4; EC-COI-85-49.

This provision would permit you to represent the second public
entity on any matter, even in a lawsuit against XYZ, as long as the
60-day period were met. Once that period were triggered, however,
your status as a special state employee would no longer permit you
to take on such matters. The concern addressed by s.4 is the
potential for influencing pending agency matters. EC-COI-85-49.
Accordingly, the 60-day rule is necessary in order to prevent the
appearance of undue agency influence. Full-time state employees
are, of course, prohibited by s.4 from taking on any such matters
at all. The 60-day period applicable to special state employees is
an arbitrary, but necessary, line drawn by the legislature to
prohibit a special state employee from eventually doing what a
regular state employee could not. Without the time restriction, the
status of a "special state employee" would soon be rendered
meaningless. For example, without the time restriction, a special
state employee could work eleven of twelve months at an agency yet
would be free from all of the restrictions applicable to full time
employees - an incongruous result. The s.4 restriction
recognizes that the opportunities to influence pending agency
matters increase with the amount of time spent working for that agency.

You maintain that the Clause (c) restriction set forth in s.4
should apply prospectively only. In other words, you believe that
the Clause (c) 60-day restriction only applies from the date on
which the matter in question is undertaken. According to your view,
the appropriate analysis would be to start anew the 60-day period
during which one is considered a special state employee each time
a new matter arises without considering the services already
provided by that employee in the past 365 days. However, this view
of the s.4 exemption does not comport with either the intention of
s.4 or the apparent meaning of the clause as previously interpreted
by this Commission.

As evidence of your position, you state that the Clause (c)
restriction applies prospectively only because it refers to a
special state employee who "serves" no more than 60 days, not who
"serves or has served." However, this Commission has implicitly
adopted a different rule - one which applies the s.4 restriction
over a "floating" period (that is, looking to both prior and
subsequent service) as opposed to a fixed, prospective only period
of 365 days. See, e.g., EC-COI-82-49; 82-50; 82-55; 84-20; 84-129;
85-13; 85-25; 85-37; 85-39; 85-45; 85-49; 90-12; 90-16
; Commission
Advisory No. 1
3 (Agency) (1988). We expressly adopt that rule here.
The Commission believes that the more reasonable construction is
to have the 60-day restriction apply in such a way as to reduce the
appearance of undue agency influence, and that the Commission's
interpretation of the restriction accomplishes that goal. See,
e.g., EC-COI-90-15
(the Commission is obligated to construe a
statute in light of its language and the presumed intent of the
legislature).

Page 345

One commentator has also concluded that any other construction
of the restriction would have been more carefully spelled out in
the statute. See, Buss, The Massachusetts Conflict of Interest
Statute: An Analysis
, 45 B.U. Law Rev. 299, 340 (footnote 230)
(1965). Buss' conclusion was based upon the counterpart language
to the federal conflict statute (18 U.S.C. s.203(c) and 205) upon
which c. 268A was modeled. Buss indicates that the statute itself
provides "no answer more persuasive than the word 'serves' itself,
which seems to suggest rendering service more than it does
availability for services."

You would, in effect, at least double the explicit statutory
time period during a given one-year period. Moreover, starting the
60-day period anew each time a matter arises in XYZ would
eventually lead to the very problem the Clause (c) restriction was
designed to avoid. For example, if six new matters arose 60 days
apart, your interpretation would permit you to work on all of those
matters for other parties, yet you could still be providing
services to the state agency during that time, for a total of 360
days. This, we believe, is not the intent of the restriction, and
we do not perceive sufficient cause to reconsider our prior
precedent. Our conclusion is consistent with the long-held policy
that the provisions of the state conflict of interest law should
be broadly implemented and that exemptions for special state
employees should be narrowly construed. See, e.g., EC-COI-87-2;
86-7; 85-49; 84-20. Accordingly, once the 60-day period set forth
in Clause (c) is reached, you may no longer rely on the s.4
exemption available to special state employees with respect to
matters pending in the XYZ.

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

[1] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.1(j).

[2] "official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s.1(i).

[3] In a letter to you dated February 18, 1988, the Legal
Division of this Commission concluded, based upon your contract
with the board, that the agency you serve is XYZ, not the Board.
You do not take issue with that conclusion.

[4] "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).

End Of Decision