February 10, 1998


FACTS:


You are a registered professional engineer who serves as the
Chairman of the Fire Safety Commission ("Commission"), a position
appointed by the Governor. The Commission was established pursuant to
G. L. c. 6, s. 200 and consists of the state fire marshal or his designee, the chairman of the board of building regulations and standards or his designee,
the fire commissioner of the City of Boston or his designee and six members appointed by the Governor. Of the six members appointed by the Governor:
one shall be a member of the Fire Chiefs Association of Massachusetts;
one shall be a member of theMassachusetts Association of Realtors;
one shall be a member of the hotel and motel association; one shall be a registered professional engineer who is also a structural engineer; one
shall be an inspector of wires with ten years experience; and one shall be
a member of the sprinkler fitters union. Commission members who are
not otherwise employees of the Commonwealth receive a stipend and
necessary travel expenses incurred in the performance of their
duties.

The duties of the Commission are periodically to meet "to
alter, rescind, amend and repeal . . . rules and regulations
providing for the implementation of a statewide plan to require the
installation of automatic sprinklers in all buildings or
structures subject to the provisions of section twenty-six A 1/2 of
chapter one hundred and forty-eight."[1] Any amendments, repeals,
or new rules and regulations proposed by the Commission must be
submitted to the General Court and referred to the appropriate
joint Legislative standing committee. The Legislative committee is
required, within thirty days, to hold a hearing and make a report
to the Commission. After review of the report, the Fire Safety
Commission may adopt final regulations. According to G.L. c. 6, s.
200, "[n]o member shall act as a member of the commission or vote
in connection with any matter as to which his private right,
distinct from public interest, is concerned."

According to the Commission's regulations, 530 CMR s. 2.00
et. seq., upon the filing of the Commission's regulations with
the Secretary of State, the head of the fire department in each
municipality must serve notice on building owners indicating that
the building is within the scope of the regulations. Any owner of
a building or structure constructed prior to January 1, 1975 that
exceeds seventy feet in height above mean grade must submit to the
head of the fire department of his city or town a statement of intent,
schedule, and fire protection systems data sheet for the installation
of an automatic sprinkler system in compliance with G.L. c. 148,
s. 26A 1/2. A copy of this information also is filed with the
Commission.[2]

Under G.L. c. 148, s. 26A 1/2 and the implementing
regulations, the head of the municipal fire department shall
enforce and administer the provisions of the statute and the
regulations.[3] 530 CMR s. 2.01(5). Prior to installation of a
sprinkler system, an application for a permit is submitted to the
local building official who forwards a copy to the head of the local fire
department. 530 CMR s. 2.01(6). The permit application must
contain specifications and plans certified by a Massachusetts
professional engineer. 530 CMR s. 2.01(7). No work may begin on
the sprinkler system until a permit is issued by the building
official, with the approval of the fire department. 530 CMR s.
2.01(8).

In addition to the Commission duties outlined in G.L. c. 6, s.
200, the Commission, pursuant to G.L. c. 6, s. 201, also serves as
the Automatic Sprinkler Appeals Board (Appeals Board). The
Appeals Board hears appeals from local fire officials'
determinations made in accordance with G.L. c. 148, s. 26A 1/2 and
s. 26G [4]. The Appeals Board has the power to reverse, affirm, or
modify a local fire official's determination, order or
requirement. Also, the Appeals Board may grant a variance from any
provision of G.L. c. 148, s. 26A 1/2 or from any provision of
the rules and regulations promulgated by the Commission; "may
determine the suitability of alternate materials and methods of sprinkler
installation"; and may provide reasonable interpretation of its
rules and regulations and of c. 148, s. 26A 1/2.

Finally, the Appeals Board may grant a waiver or an extension
of time for compliance with G.L. c. 148,s. 26A 1/2. You indicate
that, in practice, waivers are rarely given. Most of the cases
before the Board involve variance requests, time extension
requests, and the review of alternative methods. You indicate that
the parties before the Appeals Board are the property owner and the
local fire official.

Under G.L. c. 6, s. 201, the Chairman of the Commission may
designate five members of the Commission to sit as the Appeals
Board in order to hold a public hearing. The chairman also
schedules the time and place for the hearing. At that hearing, the
selected members hear testimony under oath and take evidence. The
Appeals Board issues a written decision and findings, which is
appealable to the Superior Court under G.L. c. 30A. In any c. 30A
appeal, the Appeals Board is named as a party and is represented by
the Attorney General.

You state that the Appeals Board may meet once a month, but
the full Commission meets only once a year. You state that the
combined duties of the Commission and the Appeals Board require
less than 800 hours per year.

In addition to your responsibilities on the Commission/Appeals
Board, you own a sole proprietorship business that engages in fire
protection engineering and consulting services. You design and
engineer fire protection and life safety systems, including
sprinkler systems, standpipes and fire pumps, fire alarm and
signaling systems; provide code consulting and hazard evaluation;
design protection alternatives and approaches; and perform life
safety system evaluations. (Technical Services) You provide
Technical Services in the commercial, residential and industrial
markets and your clients include owners, property managers,
architects, engineers, government agencies and contractors.

You indicate that your work is very technical and specific to
each particular project, but you also provide educational and
procedural information to your clients regarding compliance with
building codes and regulations and appeal options. For example, if
a client requires an alternative design, your services would
include not only the original design and engineering of the
system, but also your services as a technical advisor throughout
any likely appeal process. You may prepare the forms to be
submitted on appeal to the Appeals Board and, as the owner's
technical advisor, provide testimony under oath to the Appeals
Board. All of these services would be included in your engineering
fee, which is paid by the client on a fixed cost or hourly basis.
You have never been hired solely to represent a client on appeal.

Initially, any work you perform for a client would be
submitted to the local building and fire officials and an appeal
may or may not follow. If there is an appeal, your reports would
become part of the record on appeal.


QUESTIONS:


1. May you, in your private engineering and consulting
practice, receive compensation from a client to provide Technical
Services in connection with an Appeals Board proceeding and/or to
assist or represent the client in the appeals process before the
Appeals Board?

2. May you, in your private engineering and consulting
practice, receive compensation from a client to testify under oath
on behalf of the client before the Appeals Board?

3. Does your private engineering and consulting practice
limit your participation on the Commission/Appeals Board?


ANSWERS:


1. G.L. c. 268A, s. 4 prohibits you from receiving
compensation from a client if you know or reasonably should know
that the Technical Services will require you to prepare reports or
other submissions to the Appeals Board or likely will result in
Appeals Board proceedings.

2. G.L. c. 268A, s. 4 prohibits you from receiving
compensation from a client to provide testimony before the Appeals
Board.

3. G.L. c. 268A, s. 6 and 23 place restrictions on your
participation as a Commission/Appeals Board member.


DISCUSSION:


SECTION 4

Provision of Technical Services


For purposes of the conflict of interest statute, you are a
state employee.[5] As you serve less than 800 hours per year, you
are considered to be a special state employee.[6] As such an
employee, you are subject to G.L. c. 268A, s. 4.

G.L. c. 268A, s. 4(a) provides that "no state employee shall
otherwise than as provided by law for the proper discharge of
official duties, directly or indirectly receive or request
compensation from anyone other than the commonwealth or a state
agency, in relation to any particular matter in which the
commonwealth or a state agency is a party or has a direct and
substantial interest." Further, G.L. c. 268A, s. 4(c) provides
that "no state employee shall, otherwise than in the proper
discharge of his official duties, act as agent or attorney for
anyone other than the commonwealth or a state agency for
prosecuting any claim against the commonwealth or a state agency,
or as agent or attorney for anyone in connection with any
particular matter in which the commonwealth or a state agency is a
party or has a direct and substantial interest." Section 4 applies
to special state employees only in connection with matters in which
they have participated or over which they have official
responsibility as a state employee, or, if the employee serves for
more than sixty days, matters which are pending in the employee's
agency.

Section 4 is based on the principle that "public officials
should not in general be permitted to step out of their official
roles to assist private entities or persons in their dealings with
government." Perkins, The New Federal Conflict Law, 76 Harv. L.
Rev. 1113, 1120 (l963). In discussing s. 17(a), the municipal
counterpart to s. 4(a), we have stated:

[The section] 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. EC-COI-92-36. See also,
Commonwealth v. Newman
, 32 Mass. App. Ct. 148, 150 (1992);
Commonwealth v. Canon, 373 Mass. 494, 504 (1977).

Further, s. 4(a) applies irrespective of whether the interests
of the non-state party and the Commonwealth are adverse. As
recognized by the Supreme Judicial Court, " [t]he Legislature's
objective [in enacting s. 4] 'was as much to prevent giving the
appearance of conflict as to suppress all tendency to wrongdoing.'
It can not fairly be said that unless public and private interests
in a particular matter are adverse, there can be no appearance of
conflict, nor can it properly be said that the Legislature has no
legitimate interest in preventing such an appearance." Edgartown v.
State Ethics Commission
, 391 Mass. 82, 88 (1984) (citations
omitted).

Proceedings before the Appeals Board and submissions to the
Appeals Board are particular matters[7] in which you participate[8]
or over which you have official responsibility[9] as a
Commission/Board member. Further, we conclude that proceedings
before the Appeals Board are of direct and substantial interest to
the Commonwealth. The Appeals Board is empowered to grant
exemptions and waivers from the requirements in the General Laws.
Having established specific requirements regulating automatic
sprinklers, the Commonwealth has a direct and substantial interest
in any proposal to alter these requirements. See Attorney General
Conflict Opinion No. 172, October 8, 1963 (Commonwealth has direct
and substantial interest in rules and regulations pertaining to
administration of insurance laws); Compare EC-COI-97-2 (state board
in essence resolves a private dispute and is not a party to an
appeal of its decision). It is noteworthy that the Appeals Board
is a party to any appeal of its decisions and thus, has a stake in
its decision. See EC-COI-97-2 (Commonwealth's interests in
benefit's claim made by private party against private insurer
before Industrial Accidents Board not sufficiently direct and
substantial where Commonwealth's role is to provide an impartial
forum and Commonwealth is not a party and does not have a stake
in the Board's determination whether or not to award benefits).

On the other hand, we conclude that the Commonwealth does not
have a direct and substantial interest in a permit determination by
the local fire official that a fire system design or timetable
complies with the statutory scheme under G.L. c. 148 and local
bylaws and ordinances, if the local determination is not appealed
to the Appeals Board. See e.g., EC-COI-83-103 (member of state
appeals board may be involved in projects for private clients as
project is not under official responsibility until a lower board
acts). Under c. 148, s. 26A 1/2 , the Legislature provided that
the initial opinion or determination is to be made by the local fire
official and that the fire official, not the Appeals Board, has
the power to enforce the provisions of this section. See
EC-COI-92-22; 86-2. Any interest of the Commonwealth in the
possibility of an appeal of the local decision to the Appeals
Board at some future time is not sufficiently direct and
substantial to implicate s. 4. EC-COI-80-94 (interest of
Common-wealth in civil suit between private parties because of
possibility of criminal prosecution in future arising from same
events not direct and substantial). Under G.L. c. 6, s. 201, the
Board has no authority to intervene in the local decision-making
process, unless and until an aggrieved party petitions the Board.
Further, although the Appeals Board reviews the local
determination, it is not required to defer to the local authority.
The Appeals Board is empowered to hold hearings, hear testimony,
take evidence and issues findings and a decision "reversing,
affirming or modifying in whole or in part" the local
determination. G.L. c. 6, s. 201. As we stated in EC-COI-97-2,
"[b]y using the modifying phrase "direct and substantial," the
Legislature intended that the commonwealth's interest in the
proceedings or the outcome be significant and direct to the
commonwealth itself as an institution." See EC-COI-93-5 (regulatory
authority and oversight of activity alone not sufficient to find
particular matter in which Commonwealth has direct and substantial
interest); 83-120; 83-67; Burton v. United States, 202 U.S. 344,
391-396 (1906) (direct interest of government must be more than
government's interest as "parens patriae" or interest government
shares with all citizens).

Thus, we conclude that, under s. 4, you may not receive
compensation from or provide Technical Services to a client in an
Appeals Board proceeding. You may not receive compensation from
a client to prepare or file submissions to the Appeals Board or to
prepare the client's case and strategies to use before the Appeals
Board.

You may not provide Technical Services if you know or
reasonably should know that you will be required to prepare reports
or other submissions to the Appeals Board, or if you know or
reasonably should know that your client's project will become
the subject of Appeals Board proceedings. The Ethics Commission,
in In re Hewitson, 1997 SEC 874, recently advised professionals
that "[w]here a public official is privately employed as a
professional, such as a botanist, engineer, or surveyor, and is
asked as such a professional to prepare a report which he knows or
reasonably should know is likely to be submitted to a board, agency
or commission in his own town, the public official has a duty to
inquire as to whether the report will be so submitted. If the
answer to the inquiry is yes . . . the public official will
generally be barred by s. 17 [the municipal counterpart to s. 4]
from accepting the job." Thus, at the time that you are approached
by a client, you have a duty to inquire whether your proposed work
is reasonably likely to involve particular matters before the
Appeals Board.

On the other hand, if, at the time you agree to do work for a
client, you make the above-described inquiry and do not reasonably
believe that the work will involve particular matters before the
Appeals Board, but rather, will end with a local permit
determination, then you may undertake the consulting work because
the Commonwealth does not have a sufficiently direct and
substantial interest. See e.g., EC-COI-92-22; 86-2; 83-103. If
your client does appeal to the Appeals Board, you must cease
providing Technical Services because, at the time of the appeal,
the interest of the Commonwealth will be sufficiently direct and
substantial.


Service As Expert Witness


You have stated that your fee for services includes technical
support and, if required, your services as an expert technical
witness if your client appeals to the Appeals Board. Under a
literal reading of G.L. c. 268A, s. 4(a), your compensation for
services as an expert witness before the Appeals Board is
prohibited, unless some other paragraph in s. 4 limits the
application of that section to state employees who become expert
witnesses. As we concluded above, proceedings before the Appeals
Board are of direct and substantial interest to the Commonwealth.
Further, these proceedings are within your official responsibility,
even if you do not personally participate in the hearing as a Board
member. EC-COI-90-11; 89-7. Finally, any compensation you receive
for your services as an expert witness is in connection with the
Appeals Board proceeding.

The third to the last paragraph of s. 4 of G.L. c. 268A
states:

This section shall not prevent a state employee from giving
testimony under oath or making statements required to be made
under penalty for perjury or contempt.

Whether this paragraph will permit you, notwithstanding the
general prohibition in s. 4(a), to receive compensation from a
client to testify under oath as an expert witness is a question
of first impression for the Ethics Commission.[10] We, in prior
opinions, have indicated that this paragraph would permit state
employees to testify on an uncompensated basis in proceedings in
which the Commonwealth is a party or has a direct and substantial
interest. See EC-COI-83-103; 83-69 (consultant to Attorney
General's Office, who was a special state employee, permitted to
testify, on uncompensated basis, as expert witness, on behalf of
private party in a court proceeding in which Attorney General's
Office represented by special counsel); 83-45 (Department of
Mental Health employee testified about her official report on
behalf of non-state party in proceeding in which different state
agency was a party); 80-94 (state employee could testify in arson
prosecution on uncompensated basis about her private laboratory
work). In each of these opinions, the Ethics Commission expressly
reserved the question concerning witness compensation, stating,
"[i]f you were to be compensated for your activities as an expert
witness, the analysis under s. 4 might be different."
EC-COI-83-69.

For the following reasons, we conclude that the "witness
exemption" paragraph will not permit you to receive compensation
for testifying as an expert witness. A review of the plain
language of the witness exemption does not answer the compensation
question because this statutory paragraph is silent concerning any
compensation provision for witnesses.

When interpreting statutory language, we follow the principle
that:

The intent of the legislature is to be determined primarily from
the words of the statute, given their natural import in common
and approved usage, and with reference to the conditions existing
at the time of enactment. This intent is discerned from the
ordinary meaning of the words in a statute considered in the
context of the objectives which the law seeks to fulfill.
Int'l Organization of Masters, etc. v. Woods Hole, Martha's
Vineyard & Nantucket Steamship Authority
, 392 Mass. 811, 813
(1984) (citations omitted). Viewing s. 4 in its entirety, unlike the
witness exemption, each of the other seven paragraphs in s. 4
which limit the application of the main prohibitions in s. 4(a) and
s. 4(c) mentions compensation. Mindful of the canon of statutory
construction that, "when the Legislature has employed specific
language in one paragraph, but not in another, the language should
not be implied where it is not present", we decline to infer a
compensation provision for expert witnesses. Commonwealth v.
Galvin
, 388 Mass. 326, 330 (1983); see also, Leary v. Contributory
Retirement Appeal Board
, 421 Mass. 344, 348 (1995); Tesson v.
Commissioner of Transitional Assistance
, 41 Mass. App. Ct. 479, 482
(1996).


Section 4 contains two distinct prohibitions. Section 4(a)
prohibits the receipt of compensation. For purposes of the
conflict of interest law, "compensation" is defined as " 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). Thus, under s. 4(a), a state
employee may not, otherwise than as required by law for the proper
discharge of official duty, receive any economic benefit from a
non-state party for any services rendered in a particular matter in
which the Commonwealth is a party or has a direct and substantial
interest. Section 4(c) prohibits a state employee from acting in a
representational capacity as an agent or attorney in connection
with any particular matter in which the Commonwealth is a party or
has a direct and substantial interest. By his conduct, a state
employee may violate either or simultaneously both of these
sections. Buss, The Massachusetts Conflict Of Interest Statute: An
Analysis
, 45 B.U. L. Rev. 295, 324 (1965).

Section 4 and the witness exemption were enacted as part of
the original 1962 conflict of interest legislation, c. 779 of the
Acts of 1962. The language of the witness exemption has
remained unchanged since 1962. In the original bill, H. 3650, the
prohibitions against receiving compensation and acting as an agent
were embodied in two separate sections, s. 4 (prohibiting
compensation) and s. 5 (activities of agent or attorney). Yet
another section, s. 8, established the "application of sections
four and five to personnel administration proceedings, assistance
by member of immediate family or personal fiduciary, necessary
assistance to contractors and testimony." Section 8(d) stated
"nothing in section 5 prevents a state employee from giving
testimony under oath or making statements required to be made under
penalty for perjury or contempt." The other paragraphs in s. 8
dealing with further exemptions to the main prohibitions,
delineated whether each paragraph applied to s. 4 and/or s. 5 and
also contained specific language regarding whether compensation was
permitted.[11] Thus, in the original bill, the testimony exemption
was intended only to limit the applicability of the prohibition
against acting as an agent or attorney. No similar allowance was
made for the compensation of witnesses.

H. 3807 was substituted for H. 3650 and contained revisions to
H. 3650. In H. 3807, the original sections 4, 5 and 8 were
consolidated into separate paragraphs of s. 4, replacing the
language indicating whether the exemption applied to s. 4 and/or s.
5 with "this section." The language in the other exemptions
relating to compensation remained unchanged. Although it is not
completely free from doubt, there is no indication that the
Legislature, in consolidating the original s. 4, 5 and 8 and in
making the necessary editorial changes for internal consistency,
intended to deviate from its original intent that the witness
exemption applied only to the prohibition against acting as an
agent or attorney.

Our opinion that the witness exemption is intended only as an
exemption to the s. 4(c) restrictions and not to the s. 4(a)
restrictions is further supported by the analogous federal conflict
of interest statute. The Legislature, in promulgating c. 268A,
sought guidance from and adopted portions of the federal conflict
of interest statute. See Report of the Special Commission on Code
of Ethics
, H. 3650, March 15, 1962, at 8 (as to format and pattern
of proposed conflict legislation used bill HR 8140 pending in the
Congress; much of language of proposed conflict law taken and
adopted from federal bill). The analogous federal counterparts to
G.L. c. 268A are 18 U.S.C. s. 203(a), which prohibits compensation
for any representational service as an agent or attorney or
otherwise in relation to any particular matter in which the United
States is a party or has a direct and substantial interest and 18
U.S.C. s. 205(a), which prohibits acting as agent or attorney for
prosecuting any claim against the United States or from acting as
agent or attorney before any department, agency, court, etc. in
which the United States is a party or has a direct and substantial
interest.

Title 18 U.S.C. s. 205(g) limits the application of 18 U.S.C.
205(a) (regarding acting as agent or attorney) and contains almost
verbatim language to the witness exemption in G.L. c. 268A, s. 4.
Title 18 U.S.C. s. 205(g) was part of the 1962 federal statutory
scheme. Title 18 U.S.C. s. 203(a), concerning receipt of
compensation, did not contain a comparable witness testimony
exemption until the Congress added one in 1990. Pub. L. 101-280 s.
5(b)(5) (Ethics Reform Act of 1989). Thus, at the time of the 1962
enactment of G.L. c. 268A, the federal statute contained almost
verbatim language regarding an exemption for witness testimony and
the federal exemption served only as a limitation on the agency
provisions of 18 U.S.C. s. 205(a).[12]

It appears that the Massachusetts Legislature chose to create
a narrow exemption, adopted from the federal statute, recognizing
the need to clarify that, as a practical matter, when a state
employee is called by a non-state party to testify in a proceeding
in which the Commonwealth is a party or has a direct and
substantial interest, his actions will not be considered
representational acts of agency. However, given the prophylactic
purpose of s. 4, to prevent even the appearance of conflicting
loyalties between the public and private interest, the Legislature
may not have been inclined to extend the exemption to include the
receipt of an economic benefit for one's testimony in a proceeding
in which the Commonwealth is a party or has a direct and
substantial interest.

In conclusion, if the Legislature had intended to permit state
employees to be compensated by someone other than the Commonwealth
as expert witnesses in matters in which the Commonwealth or a state
agency is a party or has a direct and substantial interest, it
could have done so explicitly. See e.g., Bartlett v. Greyhound
Real Estate Finance Co.,
41 Mass. App. Ct. 282, 287(1996).
Consistent with the overall purpose of G.L. c. 268A, s. 4, we
interpret the witness exemption narrowly and decline to infer that
said exemption permits your compensation by someone other than the
Commonwealth for your testimony in a Board proceeding.[13] See
e.g., Baker Transport, Inc. v. State Tax Commission
, 371 Mass. 872,
877 (1977) ("exception to the general rule to be narrowly
construed"); Galvin, 388 Mass. At 330 ("where statute appears not
to provide for an eventuality, no justification for judicial
legislation"); Tesson, 41 Mass. App. at 482 ("language of statute
not to be enlarged or limited by construction unless its object and
plain meaning require it").[14]


SECTION 6


Your opinion request also raises issues under G.L. c. 268A,
s. 6, which governs a state employee's participation in matters in
which he has a financial interest. Section 6 provides, in relevant
part, that a state employee may not participate in a matter in
which he, an immediate family member, a partner, or a business
organization in which he is serving as an officer, director,
trustee, partner or employee has a financial interest. In prior
precedent interpreting s. 6, we have advised a state employee that
he may not participate in giving a state-mandated examination to an
individual who was a student of his spouse whom the student
compensated in exchange for preparing him for the examination,
stating "[the spouse's] reputation as an instructor and the
ultimate financial success of the . . . school which she will own
is affected by the success rate of her students . . . ."
EC-COI-82-105; see also, 96-2, n.10; 82-176 (same).

Applying this precedent to your situation, we conclude that
you have a financial interest in an Appeals Board review of any
work which you have provided for a client and for which you have
received compensation because the success of your business and your
professional reputation depend upon the quality and integrity of
your work.[15] For example, if the Appeals Board declines to accept
or rely upon drawings or plans that you have designed, finding such
drawings/plans inadequate, incomplete, or erroneous, this action
may affect your reputation with the specific client whose appeal is
pending, as well as the reputation of your business in general.

Accordingly, under G.L. c. 268A, s. 6, you must abstain, as
a Commission/Appeals Board member, from participating in any
Appeals Board proceeding in which your professional work will be
reviewed by the Board, unless you receive an exemption from your
appointing authority, the Governor, as described below. Further,
you must abstain from participating as Chairman of the Commission
in the selection of the Appeals Board panel that will hear an
appeal involving your work, and you may not delegate the task of
selecting the panel to another member of the Commission/Appeals
Board. All of these actions constitute participation in a matter
in which you have a reasonably foreseeable financial interest. See
e.g., EC-COI-92-33; 86-13
.

Under s. 6, if your Commission/Appeals Board duties would
otherwise require you to participate in a matter reviewing your
professional engineering work, in addition to abstaining from the
matter, you must also fully disclose to the Governor, who is your
appointing authority, and the State Ethics Commission, in writing,
all relevant facts about the conflict of interest, including the
facts surrounding your professional relationship with the Appeals
Board appellant and the use of your work product. Upon receiving
said disclosure, the Governor should delegate the particular matter
to another Commission/Appeals Board member, assume responsibility
himself, or make a written determination that you may participate
because your interest is not so substantial as to affect the
integrity of your services to the Common-wealth. Copies of this
written determination by the appointing authority should be
forwarded to you and to this Commission. If you do not receive a
prior written determination from the Governor that you may
participate in a particular matter, you will be required by s. 6 to
continue abstaining from participation in the particular matter.

SECTION 23


G.L. c. 268A, s. 23 contains standards of conduct which are
applicable to all state, county and municipal employees. Section
23(b)(2) provides, in pertinent part, that no public employee may
use his official position to secure unwarranted privileges or
exemptions of substantial value for himself or others. Under s.
23(b)(2), the Commission has consistently prohibited state
employees from using their titles, public time and public resources
to promote a private interest. See, e.g., EC-COI-92-28; 92-12;
92-5
(legislator may not use state seal on correspondence to
promote political campaign); Public Enforcement Letter 89-4 (state
employee may not use state letterhead, state time, state
secretarial resources to promote private trip). Under this
section, you may not use state resources or state time to promote
your private business.

G.L. c. 268A, s. 23(b)(3) prohibits a municipal employee from
engaging in conduct which gives a reasonable basis for the
impression that any person or entity can improperly influence him
or unduly enjoy his favor in the performance of his official duties
or that he is likely to act or fail to act as a result of kinship,
rank, or position of any person. For example, issues may be raised
under this section if a matter involving a former client comes
before the Commission/Appeals Board but you have not provided any
Technical Services in connection with said matter before the Board
so you are not required to abstain under s. 6. Nevertheless, this
relationship creates an appearance of a conflict of interest or
bias in one's official actions as a result of one's private
interests. EC-COI-92-40; 91-3; 89-19; 89-16. In order to dispel
the appearance of a conflict, s. 23(b)(3) requires that you file a
written disclosure of the relevant facts, prior to participation as
a Commission/Appeals board member, with the Governor, as your
appointing authority. This disclosure is a public record.

If you participate in a matter affecting a former client, you
should take care under s. 23(b)(2) and s. 23(b)(3) to base any
decisions affecting the former client on the merits, using
objective standards and following all requisite procedures. If you
are unable to judge the matter impartially, you should abstain. See
EC-COI-95-4.


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


[*] 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. 148, s. 26A 1/2, in pertinent part, requires every
building and structure of more than seventy feet above the mean grade,
constructed prior to January 1, 1975, to be protected with an
adequate system of automatic sprinklers. The statute provides a
schedule for compliance, but allows the owner to seek a waiver or
extension to the statutory schedule.

[2] The regulations also provide a choice of schedules for
implementation of G.L. c. 148, s. 26A 1/2, allowing for statutory
compliance between 1991 and 1997. 530 CMR s. 2.03(3). At the end
of each calendar year, the building owner is required to submit a
progress report to the local fire official and to the Commission,
summarizing progress under the chosen schedule. 530 CMR s. 2.03(4).
The head of the fire department or persons authorized by the head
of the fire department have the right to inspect any building or
structure for compliance with 530 CMR s. 2.00 and G.L. c s. . 148,
s. 26A 1/2. 530 CMR s. 2.03(5).

[3] Under s. 26A 1/2,

The head of the fire department shall enforce the provisions
of this section. Whoever is aggrieved by the head of the fire
department's interpretation, order, requirement, direction or
failure to act under the provisions of this section, may, within
forty-five days after service of notice thereof, appeal from such
interpretation, order, requirement, direction, or failure to act,
to the board of appeals. . . .

[4] In any city or town which accepts its provisions, G.L. c. 148,
s. 26G generally requires every building of more than seventy-five
hundred gross square feet and every addition of more than
seventy-five hundred gross square feet to be adequately protected
by an automatic sprinkler system. Similar to G.L. c. 148, s. 26A
1/2, under s. 26G, the head of the fire department is the enforcement
officer and aggrieved parties may appeal to the Appeals Board.

[5] "State employee," a person performing services for or holding
an office, position, employment, or membership in a state 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, including members of
the general court and executive council . . . . G.L. c. 268A, s.
1(q).

[6] "Special state employee," a state employee:

(1) who is performing services or holding an office, position,
employment or membership for which no compensation is provided, or

(2) who is not an elected official and

(a) occupies a position which, by its classification in the state
agency involved or by the terms of the contract or conditions of
employment, permits personal or private employment during normal
working hours, provided that disclosure of such classification or
permission is filed in writing with the state ethics commission
prior to the commencement of any personal or private employment, or

(b) in fact does not earn compensation as a state employee for an
aggregate of more than eight hundred hours during the preceding
three hundred and sixty-five days. For this purpose compensation
by the day shall be considered as equivalent to compensation for
seven hours per day. A special state employee shall be in such a
status on days for which he is not compensated as well as on days
on which he earns compensation. G.L. c. 268A, s. 1(o).

[7] "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).

[8] "Participate," participate in any 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).

[9] "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).

[10] The Ethics Commission has, in its precedent, applied this
exemption to special, as well as to "regular"state employees. To
do otherwise would create the anomalous result that a full- time
state employee would be permitted, if requested by a private party,
to testify under oath, on an uncompensated basis, before his
agency, but a special state employee, under the special state
employee restrictions in s. 4, would be prohibited from so
testifying. See e.g., Neff v. Commissioner of the Dep't of
Industrial Accidents
, 421 Mass. 70, 75-76 (1995) (legislation not
to be interpreted contrary to legislative intent). In enacting
G.L. c. 268A, the Legislature intended that s. 4 apply less
restrictively, not more restrictively, to special state employees.
See Report of the Special Commission on Code of Ethics, H. 3650,
March 15, 1962 at 12-13. ("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").

[11] For example, s. 8(b) states "nothing in section 4 or 5
prevents a state employee, including a special employee, from acting, with or without compensation, as agent or attorney for or otherwise aiding or assisting members of his immediate family or any person for whom he is serving as guardian, executor, administrator, trustee or other personal fiduciary except in those matters in which he has participated or which are the subject of his official responsibility provided that the state official responsible for appointment to his position approves."

[12] The federal Office of Government Ethics, in interpreting the
federal witness exemption, has promulgated a regulation stating

an employee shall not serve, other than on behalf of the
United States, as an expert witness, with or without
compensation, in any proceeding before a court or agency
of the United States in which the United States is a party
or has a direct and substantial interest, unless the
employee's participation is authorized by the agency. . . .

5 CFR s. 2635.805. Prior to authorizing service as an expert
witness, the agency ethics official must determine, after
consultation with the agency representing the government or having
the most substantial interest in the matter, that service as an
expert is in the government's interest and that the subject matter
of the testimony does not relate to the employee's official duties.
5 s. CFR s. 2635.805(c). Finally, the regulation prohibits a
special government employee (similar to a special state employee)
from serving, "other than on behalf of the United States, as an
expert witness, with or without compensation, in any proceeding
before a court or agency of the United States in which his
employing agency is a party or has a direct and substantial
interest, unless the employee's participation is authorized" as
described in 5 CFR s. 2635.805(c). 5 CFR s. 2635.805(a)(2).

[13] We note that G.L. c. 268A, s. 3 prohibits the offer or receipt
of anything of substantial value to any person "for or because of
testimony under oath or affirmation given or to be given by such
person or any other person as a witness upon a trial, hearing or
other proceeding, before any court, any committee or either house
or both houses of the general court, or any agency, commission or
officer authorized by the laws of the commonwealth to hear evidence
or take testimony or for or because of his absence therefrom. . .
. " The last paragraph of s. 3 states that these cited paragraphs
"shall not be construed to prohibit the payment or receipt of
witness fees provided by law or the payment by the party upon whose
behalf a witness is called and receipt by a witness of the
reasonable cost of travel and subsistence incurred and the
reasonable value of time lost in attendance at any such trial,
hearing or proceeding, or, in the case of expert witnesses,
involving a technical or professional opinion, a reasonable fee for
time spent in the preparation of such opinion, in appearing or
testifying." The purpose of s. 3, which, in part, prohibits the
receipt of a gratuity for testimony or for a refusal to testify is
fundamentally different from the purposes underlying s. 4, as
discussed above. We do not read the last paragraph of s. 3 as
permitting an expert witness fee otherwise prohibited by s. 4
because said fee would be in connection with a matter in which the
Commonwealth is a party or has a direct and substantial interest.

[14] In this opinion, we do not address the issue of whether a
state employee who serves as a witness in a proceeding in which the
Commonwealth is a party or has a direct and substantial interest
may receive a statutory witness fee from someone other than the
Commonwealth. See e.g., G.L. c. 262, s. 29.

[15] This situation would arise if some work that you performed on
the municipal level resulted in an Appeals Board proceeding but, at
the time that you undertook the work, you did not know nor did you
have reason to know that your work would become part of an appeal
to the Appeals Board.


End of Decision