March 8, 1989

FACTS:


You are a member of the General Court. An immediate family
member owns a retail business near a particular site. Although he
has closed the business, your family member may be interested in
reopening if other businesses are located at the site. Legislation
is pending before the General Court which, if enacted, would
notwithstanding any general or special law to the contrary, require
a specified state agency to relocate its offices to the site. Your
family member would likely benefit from the relocation and the
resulting consumer patronage should he reopen the business.


QUESTION:


Does G.L.c. 268A permit you to pursue your co-sponsorship,
advocacy or vote on behalf of the legislation?


ANSWER:


No.

DISCUSSION:


As a member of the General Court, you are a state employee for
the purposes of G.L. c. 268A. As a state employee you must abstain
from official participation[1] in any particular matter[2] in which
a member of your iminediate family has a financial interest. The
propriety of your continued sponsorship, advocacy, voting and
participation in connection with the enactment of the legislation
will turn on (1) whether the bill is a particular matter within the
meaning of s.1(k) and (2) whether your family member has a
financial interest in the enactment of the bill.


1. Particular Matter


Each decision or determination made by a state agency, including
the General Court, is a particular matter unless an exemption
applies. With respect to the legislative enactment process, the
definition of particular matter expressly excludes the enactment
of general legislation and implicitly retains the inclusion of
special legislation. It has therefore been well-

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established under Commission and Attorney General precedent that
the enactment of special legislation is a particular matter for
the purposes of s.1(k). EC-COI-82-169; Attorney General Conflict
Opinion No. 578
.

The feature which distinguishes special from general legislation
is the particularity of the scope and purposes of the act's
provisions. See, Sands, 2 Sunderland Statutory Construction
s.40.01 et seq. (4th ed., 1973). For example, in EC-COI-85-69, the
Commission concluded that proposed comprehensive legislation
creating a permanent development bank to provide assistance to all
cities, towns and counties as well as to the Commonwealth was
general legislation, in light of the permanence and general
application of the act's provisions. The Commission reached a
similar result in EC-COI-82-153 with respect to a proposed bill
permitting the State Racing Commission to conduct off-track betting
in those communities which accepted the provisions of the act. As
a general rule, legislation which is intended to be permanent,
which amends the General Laws, and which establishes rules which
are umformly applicable to all individuals or organizations
similarly situated will be regarded as general legislation.

On the other hand, legislation which is temporary, which does
not amend the General Laws, and which creates an exception or
special rule which does not apply to other similarly situated
individuals or organirations will be regarded as special
legislation. For example, in EC-COI-85-69, the Commission concluded
that a bill increasing the bonding authonzation for a state
authority and creating an exemption from the existing bond
authorization process was a special bill, given the limited scope
and purpose of the legislation. Similar results have been reached
in EC-COI-8O-46 (legislation transferring state-owned land in a
municipality), 80-9 (annual budget approval for line item in county
budget), 82-175 (home rule legislation affecting the payment by one
municipality of retirement supplements to its retired employees).
Moreover, legislation which practically affects a single community
is regarded as special legislation, even where the act is drafted
in more general terms, see, Belin v. Secretary of the Commonwealth,
362 Mass. 530, 534-535 (1972) or where it is inserted as a
condition restricting the receipt of local aid funds by a
particular community. Mayor of Boston v. Teeasurer and Receiver
Genera
l, 384 Mass. 718, 722-724(1981).

Based on these principles, we conclude that the legislation is
a special legislation and therefore a particular matter. The bill
does not amend the General Laws but instead creates an exception
to those laws by providing that its provisions will apply
"notwithstanding the provisions of any general or special law to
the contrary." More significantly, the practical effect of the bill
is to require a particular state agency to relocate its offices to
a specific address. The particularity of the state agency and
the proposed relocation address make a special bill which, by its
purpose and effect, can be distinguished from bills which the
Commission has found to be general legislation. See, EC-COI-85-69;
82-153.


2. Financial Interest


In order to invoke the abstention requirements of s.6, the
particular matter must be one in which your immediate family member
has either a direct or reasonably foreseeable financial interest.
EC-COI-84-96. Financial interests which are too remote or
speculative do not require disqualification under G.L. c. 268A. EC-
COI-87-16; 87-1.


We conclude that your family member has a reasonably foreseeable
financial interest in the enactment of the legislation. His
decision to close the shop was the direct result of the departure
from the area of a business which could provide patronage. The
viability of his business, whether for the purposes of deciding to
reopen or to sell out, is dependent on the existence of a property
tenant with employees. The enacment of the bill would increase the
number of the shop's potential customers and foreseeably affect
the value of his business.

Because your immediate family member has a financial interest
in the legislation you must abstain from participation in the
legislative consideration of the bill. The prohibition will cover
your continued cosponsorship, legislative advocacy and voting in
connection with the bill. We are aware of no exemptions under s.6
which are available to you as an elected official and which would
permit your participation. EC-COI-82-91.[4]
---------------

[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 otherwsse. G.L. c. 268A,
s.1(j).

[2] "Particular matter," any judicial or other proceeding,
application, submission request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination,

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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. 265A,
s.1(k).

[3] "Immediate family," the employee and his spouse, and their
parents, children, brothers and sisters. The father of your spouse
is an immediate family member.

[4] This opinion addresses the application of G.L. c. 268A to your
prospective activities and does not constitute a review or
evaluation of conduct which has already occurred.

End Of Decision