July 22, 1998


FACTS:


You are a member of a law firm, a professional corporation
("firm"). Since August 1992, you have also been serving as an
unpaid Special Assistant Attorney General ("SAAG") of the Office of
the Attorney General ("OAG"). As a SAAG, you represent the
Commonwealth in a lawsuit against private parties ("case").

For several years, in compliance with G. L. c. 268A, s. 4, you
have recused yourself from working on, and have renounced any
share in the law firm's profits from, particular matters in which
the firm represents private parties and which are pending in the
OAG during the 365-consecutive day periods in which you served more
than sixty days as a SAAG. You anticipate, however, that the case
again will require you to serve on more than sixty days during a
365-day period. If that becomes necessary, you may have to stop
working on that case and may have to resign as a SAAG in order to
avoid violating G. L. c. 268A, s. 4 because you doubt that you will
be able to continue to recuse yourself from firm matters pending in
the OAG.

You believe that your resignation would not be in the
Commonwealth's best interest because of your long history with the
case. Moreover, you believe that your resignation would deter
other attorneys from serving as SAAG's on a pro bono basis because
they might be unable to forbear from working on private particular
matters pending in the OAG and/or would not be willing to give
up their law firms' profits from such particular matters.


QUESTION:


For purposes of calculating the 60-day limitation in the
phrase " . . . 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" as it appears in s. 4 of
G. L. c. 268A, should service on part of a "day" constitute one of
the "sixty days"?


ANSWER:


Yes. For the purposes of G. L. c. 268A, s. 4,[1] the term
"serves" as it appears in the phrase "serves on no more than sixty
days" means substantive services, as described below, performed on
any portion of a calendar day.


DISCUSSION:

As an unpaid SAAG, you are a special state employee[2] for
purposes of the conflict of interest law. As such an employee,
you are subject to s. 4 of G. L. c. 268A.

Section 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."
In addition, 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 a special state employee only in relation
to particular matters in which he has at any time participated[3] or over
which he has or within one year has had official responsibility[4] or
which are "pending in the state agency in which he is serving." The
restriction concerning matters "pending in the state agency . . . ,"
however, "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." See G. L. c. 268A, s. 4.
(emphasis added).

We begin by noting that the terms "serves" and "days" as they
appear in s. 4 and throughout the conflict law are not defined in
the statute. When construing statutory language, we first review
the plain meaning of the statute. Int'l Organization of Masters,
etc. v. Woods Hole, Martha's Vineyard & Nantucket Steamship
Authority
, 292 Mass. 811, 813 (1984); O'Brien v. Director of DES,
393 Mass. 482, 487-88 (1984). In common usage, "serves" means to
be of use or answer the needs of or to perform the duties of (an
office or post). Webster's Third New International Dictionary of
the English Language (unabridged) (1993). "Day" is defined as "the
mean solar day of 24 hours beginning at mean midnight" or "the
hours of the daily recurring period established by usage or law for
work (an 8-hour ~)." Id. As one commentator has noted, the word
"serves" suggests "rendering service more than it does availability
for service." Buss, The Massachusetts Conflict of Interest
Statute: An Analysis
, 45 B.U.L.Rev. 299, 340 (1965).

The Commission's interpretation of s. 4 has been consistent
with the plain meaning of these terms. "A day is not counted for
the purposes of the 60-day limit unless services are actually
performed." EC-COI-90-12[5] (emphasis added); 85-49. To calculate
days served for purposes of the sixty-day limit, we have concluded
that a "special" employee who has served only part of a day is
considered to have served for a complete day. EC-COI-80-31; 80-32;
80-66; 84-129; 85-49
. Similarly, if an attorney serving as a
special employee assigned one of his firm's associates to perform
work under his supervision, the employee is considered as having
served on each day in which the associate performed such billable
services. EC-COI-84-129; 85-49.[6] In view of our advice that, for
example, a SAAG who serves more than sixty days must cease
representing private clients before the OAG, EC-COI-82-49; 82-50,
we have advised special employees that they must keep accurate
records of their daily services. See e.g. EC-COI-82-49; 82-50;
90-12; 90-16
.

Additionally, the legislative purpose behind s. 4 also
supports our interpretation. We have noted that the Legislature's
inclusion of the sixty-day limit in s. 4 recognizes that special
state employees whose services exceed sixty days in a one year
period are likely to possess and exercise influence in their
agencies' actions. EC-COI-85-49. The goal of s. 4 is to prevent
divided loyalty as well as influence peddling. Commonwealth v.
Cola,
18 Mass. App. Ct. 598, 610 (1984). See also, Edgartown v.
State Ethics Commission
, 391 Mass. 83, 89 (1984). "The 60-day
period . . . 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. . . . The s. 4
restriction recognizes that the opportunities to influence pending
agency matters increase with the amount of time spent working for
that agency." EC-COI-91-5. See also EC-COI-96-1. Further, as we
discussed in some detail in EC-COI-96-1, the federal conflict of
interest law, 18 U.S.C., s. 203 and 205, upon which s. 4 is based
contains a similar 60-day limitation and appears also to be
intended to guard against abusing inside influence.[7]

As a result of your situation, you ask us to reconsider the
Commission's precedent and re-examine the method for calculating
the sixty-day limitation.[8] You argue that a litigator serving as
a SAAG in a complex law suit will likely serve more than sixty days
when work on any part of day counts for an entire day. Some days
may include only a five minute telephone call, others may include
several hours preparing a brief. In either event, you believe that
such work does not make the litigator so closely allied with the
OAG that he would be able to use the leverage of his SAAG position
to exert influence on other particular matters that are pending in
the OAG and in which the litigator is involved in his private
practice. Finally, you assert that it is the unusual case that
would require a litigator to devote more than sixty eight-hour
days in any 365-day period. Such a case, you believe, would seem
to be the only one in which the sixty-day provision of s. 4 ought
to be implicated.

The logical result of your argument is that the calculation of
the sixty-day period should be based on services performed over a
total of sixty, eight-hour days (480 hours), rather than on
services performed on any part of a day.[9]

We disagree with such a requirement because it would subvert
the Legislature's intent behind the sixty- day provision, as
derived from the language of the statute and the policy supporting
a time limit for special employees as we discussed above. We note
that had the Legislature meant the terms "serves on" and "sixty
days" as they appear in s. 4 to mean "serving for sixty, eight hour
days," it could have applied a more specific hourly limit as it did
in G. L. c. 268A, s. 1(o) (state employee deemed "special state
employee" if he does not earn compensation for "more than eight
hundred hours during the preceding three hundred and sixty-five
days") or G. L. c. 268A, s. 7(b) ("the employee is compensated for
not more than five hundred hours during a calendar year"). In view
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 an hourly standard. 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).[10] Further, the Legislature's use of the phrase "serves
on" suggests that service on any part of day should count for purposes
of the sixty-day provision, rather, than as you argue, that
only a full eight-hour day of services should be considered. We
must consider each word in the statute and cannot assume that the
word "on" should be disregarded. Commissioner of Corp. & Tax. v.
Chilton Club
, 318 Mass. 285, 288 (1945).

You and the OAG also suggest that we consider a de minimis
standard, arguing that a brief telephone call on only one day not
be counted as service on that day for purposes of the sixty-day
period. The OAG has suggested that we could designate a period of
time, such as two hours, that an individual must work on a day
before he is determined to have served a day for purposes of the
sixty-day calculation. In our precedent, we have considered the
substance of the work performed in determining whether a special
employee has performed services. We stated in EC-COI-85-49 that we
distinguish "between the substantive legal services the contract
calls for [the employee] to provide, and the ancillary services
that go along with those substantive services, such as secretarial,
word-processing, and photocopying services." In that opinion, we
concluded that time spent on substantive legal services, whether
performed by lawyers or paralegals must be counted as services
performed on a day and included in the sixty-day calculation. Time
spent on purely ancillary services, however, need not be counted.
We noted that we made such a distinction between ancillary and
substantive work only in relation to paralegals and non-legal
support staff and stated that any work an attorney performed under
the contract is presumed to be substantive, therefore "all attorney
time must be counted towards the sixty-day limit." Id. at n.
3.[11] Thus, a five minute telephone call that covers substantive legal
issues cannot be discounted simply because it consumed only five
minutes of a day.

Upon further reflection, after reviewing EC-COI-85-49, we
conclude that some of the functions a lawyer or paralegal perform
may be ancillary and should not be counted toward the 60-day limit.
For example, a telephone call that concerns only non-substantive
matters (e.g., scheduling meetings) might not be included in
calculating the sixty-day limit. Similarly, administrative
business that does not involve any substantive matters, such as a
call to locate missing copies to an enclosure would not count as
service on a day for calculating the sixty-day limit.[12]

Thus, we modify our advice in EC-COI-85-49 and now conclude
that non-substantive functions lawyers or paralegals perform need
not be counted towards the sixty-day limit. We re-emphasize,
however, that for purposes of his keeping an account of service on
a day for purposes of the sixty-day limit, a special employee must
continue to count service involving, for example, only a brief
conversation covering substantive matters.

In conclusion, we defer to the specific legislative
determination of the time limitation under which a special employee
currently operates and must construe that provision as it is
written. Brennan v. Election Commissioners of Boston, 310 Mass.
784, 789 (1942); City Council of Peabody v. Board of Appeals of
Peabody
, 360 Mass. 867, 867 (1971); Tesson v. Commissioner of
Transitional Assistance
, 41 Mass. App. Ct. 479, 482 (1996). The
Legislature established the sixty-day limit of s. 4, 11 and 17 of
G. L. c. 268A through St. 1962, c. 779, s. 1, which, like the
sixty-day limit of those sections' federal counterparts, has
not changed since it was enacted.[13] We reiterate that for the
purposes of the conflict law, the term "serves" as it appears in
the phrase "serves on no more than sixty days" means substantive
services, as described above, performed on any portion of a
calendar day.

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

[1] Our analysis will also apply to the county and municipal
counterparts, G. L. c. 268A, s. 11 and 17 respectively, which
contain the same clause as s. 4.

[2] "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, .
. . . G. L. c. 268A, s. 1(o).

[3] "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).

[4] "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).

[5] See also Buss, The Massachusetts Conflict of Interest Statute:
An Analysis
, 45 B.U.L. Rev. 299, 340 (1965).

[6] "Because the concern addressed by the statute is the potential
for influencing pending agency matters if the employee serves more
than sixty days, it is clear that the issue is the total number of
days on which work is performed for a given project, and not the
total number of people who actually perform the work. Thus a day
on which more than one firm partner or associate performs any work
under the contract will be counted as one day for purposes of
calculating the sixty-day limit." EC-COI-85-49.

[7] Our view has been consistent with the federal government's long
standing interpretation of 18 U.S.C., s. 203 and 205. The federal
Office of Government Ethics (OGE), in applying 5 CFR s. 2635.807,
one of the regulations that implement 18 U.S.C., s. 203 and 205,
continues to rely on the interpretation set forth in the former
Federal Personnel Manual's guideline for special government
employees:

At the time of [an appointee's] original appointment and the time
of each appointment thereafter, the agency should make its best
estimate of the number of days during the following 365 days on
which it will require the services of the appointee. A part of a
day should be counted as a full day for the purposes of this
estimate, and a Saturday, Sunday or holiday on which duty is
performed should be counted equally with a regular work day.
5 CFR s. 735 Appendix C (2)(c) (November 9, 1965) (Revised July
1969) Conflicts of Interest Statutes and Their Effects on Special
Government Employees (Including Guidelines for Obtaining and
Utilizing the Services of Special Government Employees). Although
most of 5 CFR s. 735 as it then appeared was substantially changed
and rendered obsolete upon the implementation of 5 CFR s. 2635 (see
Federal Register, Vol. 57, No. 230, November 30, 1992 at 56433),
the OGE continues to rely on this specific guideline when
providing advice on what "serves on a day" means for calculating
the sixty-day limit.

[8] We also have the benefit of a submission on your behalf from
the Office of the Attorney General, which also argues for the
reexamination and reinterpretation of our precedent.

[9] Thus, if such an hourly limit were the standard, special
employees would be advised to keep accurate records to calculate
such a 480-hour limit, regardless of how those 480 hours were
distributed over a 365-day period.

[10] Additionally, in view of our discussion above concerning the
purpose of the 60-day limitation, we cannot discern how a special
employee who serves on only four hours per day over a sixty day
period is any less likely to be in a position to exert influence in
his agency than one who serves on six hours per day for sixty days.
Similarly, it is difficult to distinguish how the employee who
serves four hours per day is more likely to be able to exert such
influence than one who serves on only two hours per day for a sixty
day period. Even under your hourly calculation, each such
employee would arrive at the limit at a different number of days
over a 365-day period (the four hour per day employee at 120 days,
the six hour per day employee at 80 days, and the two hour per day
employee at 240 days). Compare EC-COI-91-5. Again, had the
Legislature believed that an employee's degree of inside influence
needed to be measured at the hourly, rather than daily, standard,
it could have so specified. Nothing in the statutory language or
legislative history suggests that the Legislature intended to
permit such disparities by enacting the explicit sixty-day limit.
"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." Id.

[11] Cf. EC-COI-87-27 (with respect to s. 5's purpose to ensure
that former state employees do not use their prior governmental
associations to derive unfair advantage, "there may be certain
communications which relate solely to procedure and which are so de
minimis so as not to present an opportunity to derive unfair
advantage.") (emphasis in the original). See also United States v.
Quinn,
141 F. Supp. 622, 629 (S.D.N.Y. 1956) (under 18 U.S.C. s.
281, which was superseded by 18 U.S.C. s. 203, calls made by a
Congressman to inquire of the status of the matter and in which the
merits of the case were not discussed were not "the rendition of
services of the nature contemplated under the statute." Section
281 prohibited members of Congress from receiving compensation "for
any services rendered or to be rendered, . . . in relation to any
proceeding, contract, claim, controversy, charge, accusation,
arrest, or other matter in which the United States is a party or
directly or indirectly interested, before any department, agency .
. . .").

[12] We do not draw a distinction between so-called "billable" and
"non-billable" time because, as in your situation, an attorney
serving on a pro bono basis does not "bill" his client (although
some pro bono clients require bills in order to determine the value
of the free legal services they receive). Moreover, we would not
want attorneys or anyone else serving as special public employees
to avoid the sixty-day limit simply by not billing even minimal
time involving substantive work. Compare EC-COI-84-129 ("It would
frustrate the statutory policy to permit special state employees to
avoid reaching the sixty day limit by assigning their work to other
employees in the law firm. Such a construction would elevate
technical form over substance in a way which would undermine the
statute.").

[13] We note that the Commission has no regulatory authority under
G. L. c. 268B, s. 3 to interpret the statute in ways that would
change the time limitation, as the OAG has suggested. Any such
change, therefore, must be made by the Legislature.

End of Decision