FACTS:
A decision of the Energy Facilities Siting Board ("Board"), a
state agency within the Department of Public Utilities,[1] has been
appealed to the Supreme Judicial Court. The appeal arose from the
Attorney General's opposition to the Board's decision. When the
Attorney General opposes a decision by a state agency, he has the
authority to appoint legal counsel to represent the agency in a
court proceeding. G.L. c.12, s.3. An attorney so appointed is
designated a Special Assistant Attorney General ("SAAG") for the
purposes of representing the state agency.[2]
In a prior appeal of other Board decisions, the private
attorney appointed to represent the Board received a letter of
appointment from the Attorney General. In pertinent part, the
letter reads:
I hereby appoint you a Special Assistant Attorney General
for the purpose of representing the Energy Facilities Siting
Board in the following related cases: . . .
A copy of the Office's Guidelines for Special Assistant
Attorneys General, including reporting procedures, is enclosed
for your information. Particular attention is drawn to the
fact that, in order to maintain a consistent legal policy for
the Commonwealth, Special Assistants are subject to the
authority of the Attorney General to direct their activities,
except in matters referred due to conflict of interest. This
appointment is being made because of such a conflict of
interest. Accordingly, the Office of the Attorney General
will not direct and control your activities in the
representation of your client.
You should also be aware that your service as a Special
Assistant Attorney General qualifies you as a "special state
employee" within the meaning of the Massachusetts Conflict of
Interest Law, G. L. c. 268A, s.s.1-25, and therefore subjects
you to the provisions of that statute.
Your appointment will terminate with the completion of your
case assignment.
The SAAG representing the Board in the prior appeal resigned
his appointment just before completion of the appeal because the
Attorney General believed that the SAAG might have a conflict of
interest under c. 268A. The source of potential conflict was a
second case pending before the Supreme Judicial Court in which that
same SAAG in his private practice represented a client opposed by
the Attorney General. The second case did not involve the Board.
The Attorney General concluded that the SAAG had a conflict of
interest under G. L. c. 268A, s.4 because he had been serving the
Attorney General's Office in the first case for more than sixty
days while also representing a private party in a second case
pending in the Attorney General's Office.
The Guidelines for Special Assistant Attorneys General, March
9, 1993, which is provided to each SAAG, states that, under s.4, a
SAAG who performs work as a SAAG on more than sixty days during any
365 day period may not act as agent or attorney or accept or
request compensation from anyone other than the Commonwealth in
relation to any matter pending in the Attorney General's Office.
Guidelines at 4-5. The Guidelines also states that SAAGs are
subject to the authority of the Attorney General to direct their
activities except with respect to matters referred because of
conflicts of interest. "The scope of the authority delegated to
each Special Assistant is limited to that described in the
designation letter." Guidelines at 8. Reporting requirements
under the Guidelines state that SAAGs must regularly report the
status of litigation they are handling for the Office. "Special
Assistants appointed to handle a particular case or cases should
report at the time of any significant case activity or every six
months, whichever is sooner. . . . In addition, . . . Special
Assistants [appointed to handle specified types of cases] should
report and consult with the Office of the Attorney General in
advance of any particularly significant or unusual event in any
case." Guidelines at 11 (emphasis in original).
In cases such as this one involving the Board, the private
attorney designated a SAAG receives neither support nor direction
from the Attorney General's Office, according to the former SAAG
who represented the Board in the prior appeal before the Supreme
Judicial Court. His interaction with the Office consists of
submitting a monthly accounting of his services so the Attorney
General's Office may pay his bill.[3]
QUESTION:
For the purposes of s.4, in which agency is a SAAG serving
when he is appointed to represent a state agency in a particular
matter before a tribunal when the Attorney General opposes that
state agency in that same particular matter?
Page 653
ANSWER:
In circumstances in which a private attorney is appointed a
SAAG to represent a state agency before a tribunal when the
Attorney General opposes that state agency in such proceedings, the
SAAG is serving only that state agency and not the Office of the
Attorney General for purposes of applying the restrictions of s.4.
DISCUSSION:
Section 4 generally prohibits state employees from being paid
by or representing non-state parties in a particular matter of
direct and substantial interest to the state. A special state
employee, such as a SAAG, is subject to this prohibition only
in relation to a particular matter (a) in which he has at any
time participated as a state employee, or (b) which is or
within one year has been a subject of his official
responsibility, or (c) which is pending in the state agency in
which he is serving. Clause (c) of the preceding sentence
shall not apply in the case of a special state employee who
serves on no more than sixty days during any period of three
hundred and sixty-five consecutive days.
G. L. c. 268A, s.4.
The s.4 exemption for special state employees represents a
determination that the broad restrictions of s.4 would make it
impossible for the Commonwealth to have the service of specialists
for special assignments. Report of the Special Commission on Code
of Ethics, House No. 3650 of 1962, p. 13; Buss, The Massachusetts
Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 335
(1965). Similar policy concerns support the federal conflict of
interest laws upon which s.4 is based.[4]
At the heart of the issue is what agency does a SAAG serve who
is retained to represent a state agency because of the Attorney
General's conflict of interest?
The possibility that a special state employee might
simultaneously serve two state agencies in connection with the same
particular matter in which the agencies oppose each other appears
not to have been contemplated under the conflict of interest
law.[5] Our research indicates that service only to a single
agency in the context of the s.4 exemption for special state
employees has been considered.[6] See, e.g., Report of the Special
Commission on Code of Ethics, House No. 3650 of 1962, p. 13;[7]
Buss, The Massachusetts Conflict of Interest Statute: An
Analysis, 45 B.U.L.Rev. 299, 337-340 (1965)(suggesting an expansive
definition of agency but not one that extends beyond a governmental
department);[8] Braucher, Conflict of Interest in Massachusetts, in
Perspectives of Law: Essays for Austin Wakeman Scott, 3, 16-17
(1964) (discussing s.17, the municipal counterpart to s.4);
Perkins, The New Federal Conflict of Interest Law, 76 Harv. L. Rev.
1113, 1149-1151 (discussing the federal law upon which G. L. c.
268A is based).
Our prior opinions that consider the special state employee
exemption address only the s.4 issues when a special state employee
might represent private parties before the single agency to which
he was assigned. See, e.g., EC-COI-84-129 (attorney who acts as
labor counsel to MHFA may represent clients before MHFA in matters
in which he did not participate or have official responsibility so
long as he serves MHFA less than sixty days); 85-21 (consultant to
the Executive Office of Energy Resources may not represent non-
state parties in connection with matters pending in EOER); 90-12
(attorney who provides mediation services to Department of
Environmental Protection may not represent private clients in
connection with any matter pending within DEP); 90-16 (volunteer
lawyers who serve as special assistant district attorneys to handle
appeals for the district attorney are prohibited from privately
representing clients in connection with matters pending in the
district attorney's office). See, also, Commission Advisory No.
13, Agency, Part B: State Employees Acting as Agent.
An early Ethics Commission opinion, EC-COI-80-66, however,
concluded that a SAAG who represented the Division of Water
Pollution Control ("DWPC") could not also represent a private
client before another state agency if the Attorney General's Office
became involved in the other state agency matter and if the SAAG
served more than sixty days during any three hundred and sixty-five
day period. That opinion, however, appeared to assume without
explanation that, for the purposes of s.4, the SAAG would be
serving both the agency to which he was assigned and the Attorney
General's Office. That opinion also did not describe the reasons
why a SAAG was assigned to represent the DWPC. See EC-COI-80-66.
We agree with that opinion's conclusion with respect to SAAGs not
assigned because of the Attorney General's opposition to a state
agency's decision. With respect to the limited circumstances of
the instant case, however, we clarify that particular conclusion of
EC-COI-80-66.
In determining which agency the SAAG serves in these
particular circumstances, we are guided by the legislative purpose
behind s.4. The goal of s.4 is to prevent divided loyalty as well
as influence peddling. Commonwealth v. Cola, 18 Mass. App. Ct.
598, 610
Page 654
(1984); Edgartown v. State Ethics Commission, 391 Mass. 83, 89
(1984)(construing s.17, the municipal counterpart to s.4);
Commonwealth v. Canon, 373 Mass. 494, 504 (1977), cert. denied, 435
U.S. 933 (1978) (construing s.17; Liacos, J., dissenting on other
grounds. Section 17 "seeks to preclude circumstances leading to a
conflict of loyalties." Id.). The concerns of s.4 would not be
raised when a SAAG represents only the Board in one particular
matter opposed by the Attorney General while also representing only
a private party in a second particular matter opposed by the
Attorney General, so long as the second matter was not pending with
the Board. Here, the loyalty of the SAAG is to the state agency
to which he is assigned---the Board. He is to represent that
agency's position in opposition to the Attorney General's. His
duty to the Attorney General consists of only filing regular
reports and submitting an accounting so he may be paid for his
services. Moreover, the Attorney General's designation letter
acknowledges that his Office is not the SAAG's client. It states
that because of a conflict of interest, the Attorney General will
not direct and control the SAAG's activities in the representation
of the Board.
"The [additional] concern addressed by s.4 is the potential
for influencing pending agency matters." EC-COI-91-5. The sixty
day limit, although arbitrary, represents a legislative decision
that a special state employee whose services require more than that
amount of time with an agency will have increased opportunities to
influence that agency's pending matters. EC-COI-91-5; 85-49.[9]
The underlying assumption in the language from s.4, "in the state
agency in which he is serving" is a special state employee's
ability to influence that particular state agency. It therefore
follows that if a SAAG representing the Board does not have the
opportunity to influence the Attorney General's Office in other
matters pending in the Office, the s.4 concerns will be adequately
addressed.[10] The scope and nature of the SAAG's services do not
reach beyond the Board, his immediate agency. See Buss, infra, at
note 8.
Here, the SAAG is in no position to exert influence over other
matters pending in the Attorney General's Office. The SAAG does
not work with the Attorney General's Office in representing the
Board. Except for receiving fees for his services, he receives no
other support directly or indirectly from the Attorney General's
Office. Although a SAAG must regularly submit reports to the
Attorney General, the Guidelines specifically state that the
Attorney General does not direct the SAAG in matters referred to
him because of conflicts of interest. His interaction with the
Office and its staff is comparable to that of any private attorney
who represents a private client opposing the Attorney General. His
opportunity to influence any other particular matter pending in the
Attorney General's Office is no greater than any other private
attorney's.
We conclude that in these circumstances, the s.4 phrase "state
agency in which he is serving" applies to the agency to which a
SAAG has been assigned when the SAAG is otherwise a private
attorney who has been appointed to represent that state agency in
a particular matter opposed by the Attorney General. Therefore,
s.4 would not prohibit such a SAAG from also representing other
parties in other particular matters that are pending in the
Attorney General's Office and are not pending with the Board.[11]
The question of what is the agency in which the SAAG serves in
the instant case elicits different answers from the parties. The
Board seizes on the language of the Attorney General's SAAG
appointment letter that purports to yield certain controls of the
Attorney General over a SAAG. The letter states that the Attorney
General will not direct and control the SAAG's activities in
representing the state agency because the matter was referred to a
SAAG due to a conflict of interest.[12] The letter implies what
the parties have confirmed; the Attorney General opposes the
Board's decision. The Board argues that "serving" the Attorney
General under such circumstances would ignore the specific
directive of the appointment letter.[13]
The Attorney General asserts that all SAAGs, regardless of the
reasons for their appointment, serve the Office of the Attorney
General. To support this assertion, the Attorney General cites
several reasons. First, SAAGs derive their authority to act on
behalf of the Commonwealth from their appointment. The Attorney
General retains the right to terminate or to modify their
appointment at any time.
Second, although the case on appeal appears to involve a
"conflict of interest" because the Attorney General is one of the
appellants who opposes the Board's decision, the Commonwealth can
have only one interest. It is the responsibility of the Attorney
General to determine that one interest. See G. L. c. 12, s.3.[14]
Third, if the Board's conclusion were affirmed, the powers
granted to the Attorney General would be restricted, which would
run contrary to the mandate of G. L. c. 12, s.3.
Although the Attorney General cites all of these reasons, he
emphasizes his role in determining a unified
Page 655
and consistent legal policy for the Commonwealth. Secretary of
Administration and Finance v. Attorney General, 367 Mass. 154, 163
(1975). Feeney v. Commonwealth, 373 Mass. 359, 365 (1977) notes
that the Legislature clearly allocated complete responsibility for
all of the Commonwealth's legal business to the Attorney
General.[15] The appointment of a SAAG to represent a state agency
in a particular matter in which an Assistant Attorney General
appears in opposition to that state agency does not modify or
restrict the powers granted to the Attorney General under G. L. c.
12, s.3, to control all litigation involving the Commonwealth.
Moreover, in the instant case should the Attorney General decide
that the suit should not be defended, he could decline to
appoint a SAAG. Finally, the Attorney General argues that "is it incumbent
upon the Attorney General to resolve whatever tensions may arise
between different views of the Commonwealth's interests, deciding
what the overall interest of the Commonwealth is, and then acting
in the manner he deems most appropriate given the interest."
Based upon these reasons, the Attorney General asserts that it
would constitute an impermissibly adverse effect upon his authority
if, for purposes of s.4, a SAAG in these circumstances were deemed
to serve only the agency to which he was assigned.
We do not disagree with the Attorney General's discussion of
the sources of his authority. Statutory authority and the opinions
of the Supreme Judicial Court support his duty "to set a unified
and consistent legal policy for the Commonwealth." Secretary of
Administration & Finance at 163. Our application of s.4 in these
circumstances will not, contrary to the Attorney General's
argument, restrict his authority.
In the limited circumstances of a conflict between an agency
and the Attorney General, the Attorney General has yielded certain
authority to the SAAG. Our conclusion would not provide the SAAG
with more authority or power with respect to his representation of
the Board than what had been delegated by the Attorney General.
Nothing in our analysis would prevent the Attorney General from
dismissing the SAAG assigned to the Board.
We note that under s.23(e), in pertinent part, the head of a
state agency is permitted to establish and enforce additional
standards of conduct. We have said that the Commission, absent
special circumstances, will defer to an agency code of conduct
governing conflicts of interest that is consistent with the
principles of s.23. EC-COI-93-23 (agency imposed standards
stricter than those of s.3 and s.23(b)(2)); 85-12. Therefore, s.23
will permit the Attorney General to determine whether, in these
circumstances, provisions more restrictive than s.4's are necessary
in light of this opinion.
-------------------------
* Pursuant to G.L. c. 268B, s.3(g), the requesting person has
consented to the publication of this opinion with identifying
information.
[1] G. L. c. 164, s.69H.
[2] SAAGs may be appointed for several reasons, including, for
example: to represent the state or its agencies when the Attorney
General's Office does not have a particular legal expertise to
represent the matter; to provide legal services when the Attorney
General cannot provide personnel; to represent one division of the
Attorney General's Office in a matter in which other divisions
represent diverse interests; or to represent a state agency when
the Attorney General opposes that agency's action.
[3] We have the benefit of submissions from the Board, which
first raised the question in a request for an advisory opinion, and
the Legal Counsel to the Attorney General.
[4] See 18 U.S.C., s.s.203, 205 (as amended through May 4,
1990, Pub. L. 101-280), which contain nearly identical provisions
that narrow the scope of restrictions with respect to special
government employees. One of the major purposes of the federal law
is to facilitate the government's use of private experts on a part-
time basis without depriving the government of protection against
unethical conduct on their part. 1962, U.S. Code Cong. and Admin.
News, 3852, 3853.
[5] Ordinary definitions of the word "serve" do not help us to
answer whether one serves only the Board or both the Board and the
Attorney General. Webster's Third New International Dictionary of
the English Language (1964) offers several applicable definitions:
to be of use; answer a purpose; have a function; to hold an office;
discharge a duty or function; act in a capacity; to be a servant
to; work for; to give the service and respect due to.
[6] The federal conflict of interest laws upon which s.4 is
based, 18 U.S.C., s.s.203, 205 (as amended through May 4, 1990,
Pub. L. 101-280) and their legislative history appear to
contemplate service to a single agency---that to which the special
employee is assigned. See Memorandum of Attorney General Regarding
Conflict of Interest Provisions of Public Law 87-849, Feb. 1, 1963,
reprinted in 18 U.S.C. s.201 note, at 279, 280 (1969) and 1962,
U.S. Code Cong. and Admin. News, 3852.
[7] A special state employee is subject "to the prohibition
against receiving outside compensation or representing private
interests with respect to matters in which the State is involved
only in situations in which he or the agency in which he is serving
is concerned, and such special employee is free to deal with other
state agencies in a private capacity. This again is necessitated by the
determination that imposing broad disabilities on special employees
would render it impossible for the Commonwealth to have the service
of specialists or other capable people for specific assignments in
departments or agencies." Id. (emphasis added).
[8] Buss suggests the following analysis for determining the
size of
Page 656
one's agency:
If the special employee is serving in the office of
a head of a department, presumably every matter in any
division of the department is pending in his agency. But
suppose the positions are reversed: the special employee
works in the division and the matter is pending on a
higher departmental level or in some other division of
the executive department. There appear to be two
possible approaches to resolving this problem. Under the
first, emphasis would be placed on determining the
identity of the employee's immediate employer. Since a
person is a state employee by reason of his connection
with 'a state agency,' it is at least reasonable to
conclude that he serves only one state agency. Under the
alternative approach, the employee's agency for purposes
of applying this provision would depend upon the
particular circumstances of a given case. If it is clear
that the scope and nature of an employee's services reach
beyond his immediate agency, the employee's agency should
be broadly construed in the context of the more inclusive
administrative unit, and exemption based on this
provision should be narrowed accordingly. When attention
is focused on the other part of the problem, namely,
where is the matter pending, it is somewhat easier to
conclude that the answer will be determined by practical
considerations comparable to those suggested under the
second alternative approach outlined above. Id. at 338.
It would appear that an employee's contact with
matters pending in the agency he is serving, other than
those with which he is directly concerned, would tend to
depend on the number of days during which he was present
and attending to that agency's business. Id. at 340
(emphasis added).
[9] The Senate Committee on the Judiciary's comment on the
s.203 limitation on special government employees recognizes that
such an employee "may attain a considerable degree of influence in
an agency he serves." Id. at 3858. In discussing the merits of a
fifteen day verses a sixty day limit the Committee noted, "The 15-
day limit seems much too short and no doubt would often make
unavailable to an agency the needed services of an individual with
specialized knowledge or skills who must appear before that agency
in other connections in his private capacity. The 60-day standard
set by the committee seems a more reasonable one, particularly when
it is borne in mind that the first restriction applicable to
special Government employees continues in effect in any event."
Id. at 3858-59. The Committee also noted that agencies must make
certain that persons serving part-time "who also appear on behalf
of outside organizations do not abuse their access to the agency
for the benefit of those organizations." Id. at 3859. As with G.
L. c. 268A, s.4, the federal counterparts are intended to guard
against abusing access to and influence in an agency.
[10] We also note that in our continuing efforts to apply
Chapter 268A in a comprehensible fashion, we have attempted to be
precise in identifying the public agency in which a public employee
serves. The Commission's "jurisdiction has consistently been based
on the destination of the services which a state employee provides
rather than on the identity of the appointing official of the
employee. Otherwise, jurisdiction under G. L. c. 268A would result
in anomalies such as judges being considered employees of the
governor and executive branch." EC-COI-90-18, n. 3.
[11] Our conclusion does not change our interpretation of the
s.4 provisions that apply to the SAAG with respect to his private
involvement in other particular matters that might come before the
Board. In addition, in circumstances in which the Attorney
General's Office decided to appoint a SAAG to represent an agency's
position with which the Attorney General agreed but may not have
the personnel or expertise available to represent the agency, the
SAAG would serve both the agency and the Attorney General's Office.
We assume such a SAAG would be supervised by and have the support
of the Office as well as the agency he represents.
[12] Although neither the appointment letter nor the
Guidelines so state explicitly, we assume that the specific
conflict of interest is governed by the Canons of Ethics and
Disciplinary Rules Regulating the Practice of Law. See S.J.C. Rule
3:07, DR-5-105 (A) and (B), as appearing in 382 Mass. 781 (1981),
which generally proscribes the simultaneous representation of
clients with adverse interests.
[13] The Board also argues that the Attorney General's
position limits the availability of qualified counsel to represent
the Board on such appeals because the area of law in issue is
highly specialized. It is likely that counsel with the necessary
expertise will also represent private clients who are opposed by
the Attorney General with respect to other issues related to the
same body of law.
[14] In pertinent part, G. L. c. 12, s.3 provides:
The attorney general shall appear for the commonwealth
and for state departments, officers and commissions in
all suits and other civil proceedings in which the
commonwealth is a party or interested, or in which the
official acts and doings of said departments, officers
and commissions are called in question, in all the courts
of the commonwealth, . . . and in such suits and
proceedings before any other tribunal, including
prosecutions of claims of the commonwealth against the
United States, when requested by the governor or by the
general court or either branch thereof. All such suits
and proceedings shall be prosecuted or defended by him or
under his direction. . . . All legal services required by
such departments, officers, commissions and commissioners
of pilots for district one in matters relating to their
official duties shall, except as otherwise provided, be
rendered by the attorney general or under his direction.
[15] In Feeney, the issue was whether the Attorney General
could prosecute an appeal over the expressed objections of state
officers whom he represented. The court held that the Attorney
General acted within his authority pursuant to G. L. c. 12, s.3
when he prosecuted such an appeal. 373 Mass. at 368.
Page 657
End Of Decision