Advisory  Advisory 98-01: The Conflict of Interest Law and Legislator's Private Employment

Date:	05/12/1998
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Introduction

This advisory explains how the conflict of interest law, General Laws Chapter 268A, applies to state senators and representatives who also have other private employment. It explains the limitations G.L. c. 268A establishes for legislators (1) as legislators and (2) in their private positions.

I. Background

State representatives and senators are state employees as defined in the conflict of interest law, G.L. c. 268A, and public officials as defined in the financial disclosure law, G.L. c. 268B.

II. Limitations as Legislators

As described below:

• A legislator may not act on special legislation in which she or her private employer has a financial interest; and,

• A legislator must disclose in writing to the Ethics Commission prior to taking any action which would substantially affect his own financial interest.

(a) Participating in legislative business (§ 6)

The conflict law prohibits a legislator from participating in a particular matter in which (to his knowledge) he, his partner or a business organization in which he is serving as officer, director, trustee, partner or employee has a financial interest. A legislator participates not only by voting, but also by engaging in debate or discussion or by giving a recommendation or advice concerning the particular matter. Participation also includes informal lobbying of legislative colleagues and intervening with a public agency.

This prohibition applies to any financial interest that is direct or reasonably foreseeable, whether such financial interest is positive or negative. Whether a financial interest is reasonably foreseeable must be determined on a case-by-case basis following examination of all the relevant facts.

Section 6 of the conflict law precludes a legislator's participation only if the matter on which action is sought is a "particular matter" for purposes of the conflict law. The definition of "particular matter" includes "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding . . ." but specifically excludes the enactment of general legislation as well as home rule petitions of cities, towns, counties and districts "for special laws relating to their governmental organizations, powers, duties, finances and property." The Commission has stated that general legislation establishes rules which are "uniformly applicable to all individuals or organizations similarly situated."

The feature that distinguishes special from general legislation is the "particularity of the scope and purposes of the act's provisions." If a bill provides assistance to all cities, towns and counties as well as to the Commonwealth, the Ethics Commission has concluded that the bill is a matter of general legislation. In addition, even though the subject matter of a bill may have a special effect upon one or more individual cities or towns, if the main purposes of the bill are to achieve state, regional or general objectives, the bill will not be considered special legislation. In contrast, if the legislation creates an exception or special rule which does not apply to other similarly situated individuals, the legislation will be regarded as special legislation. Legislation that practically affects a single community is regarded as special legislation, even where the act is drafted in more general terms.

Thus, § 6 does not prohibit a legislator from participating in any general legislation which may affect her financial interest or that of her private employer. However, § 6 does prohibit a legislator from acting on any special legislation, any budget line item or any constituent service, in which the legislator or her private employer has a financial interest.

(b) Filing Disclosures (§§ 6A, 23)

Section 6A of the conflict law requires a legislator to make and file a full written disclosure with the Ethics Commission if the legislator is required knowingly to take any action as a legislator which would substantially affect his own financial interests, unless the effect is no greater than the effect on the general public. This section is distinguishable from § 6 because its application is not limited to particular matters (i.e., § 6A applies to general and special legislation as well as to home rule petitions by localities and other actions such as constituent services). Moreover, it does not prohibit the legislator from taking the required action; it does, however, require advance disclosure of the required action and the potential conflict of interest. For example, a legislator who is a partner in a law firm, and thus has a financial interest in the law firm, may participate (consistent with § 6) in a committee hearing concerning general legislation in which his law firm has a financial interest; pursuant to § 6A, however, prior to taking such action, the legislator must file a written disclosure with the Ethics Commission describing the action required and the potential financial interest.

Section 23(b)(3) prohibits a public employee from knowingly or with reason to know engaging in conduct that gives a reasonable basis for the impression that any person or entity can improperly influence her or unduly enjoy her favor in the performance of her official duties, but allows the employee to dispel any such impression by filing a written public disclosure of the relevant facts and circumstances prior to acting. For example, this provision requires a legislator to make such a disclosure to the Ethics Commission and/or the House or Senate Clerk whenever the legislator or any non-state entity with which the legislator is affiliated (e.g., her private employer, a private non-profit organization on whose board she serves, private clients, a family member) has a private interest that would be affected by legislative business in which the legislator participates (this requirement to make a disclosure applies to interests other than financial interests covered by the § 6 abstention requirement discussed above). Note that the disclosures under §§ 6A and 23(b)(3) are required regardless of whether the legislative business in question is special or general legislation.

III. Limitations for Legislators in Their Private Positions

(a) Contacting state agencies on behalf of others (§ 4)

Section 4 prohibits a legislator from appearing personally before any state agency for any compensation other than his legislative salary, unless:

• the particular matter before the state agency is ministerial in nature, such as the filing or amendment of tax returns, applications for permits or licenses, incorporation papers, or other documents; or

• the appearance is before a court of the Commonwealth; or

• the appearance is in a quasi-judicial proceeding. A proceeding is considered quasi-judicial if all of the following are true: the action of a state agency is adjudicatory in nature; the action of the state agency is appealable to the courts; and both sides are entitled to representation by counsel and such counsel is neither the attorney general nor counsel for the state agency conducting the proceeding.

Note that a legislator "personally appears" before a state agency even if she contacts the agency in writing or by telephone on behalf of another.

(b) Having interests in state contracts (§ 7)

Section 7 of G.L. c. 268A in general prohibits a state employee from having a direct or indirect financial interest in a state contract (e.g., a construction contract, a loan, a contract providing goods to a state agency). In certain circumstances, exemptions may be available; legislators should seek further advice to determine whether their situation qualifies for one of these exemptions.
Note that § 7 generally prohibits a legislator from holding any other paid position or contractual employment arrangement with the Commonwealth. However, several exemptions exist which may allow a legislator to hold certain positions. For example, a legislator may teach or perform related duties for compensation in an educational institution of the Commonwealth provided that certain requirements are satisfied. A legislator may also be employed for compensation on a part-time basis by certain state facilities which operate on a continuous basis, such as hospitals or correctional facilities, provided that certain requirements are satisfied. Again, legislators should seek further advice to determine whether their situation qualifies for one of the § 7 exemptions.

(c) Other restrictions on private activities (§ 23)

Section 23(b)(1) prohibits a public employee from "accept[ing] other employment of substantial value, the responsibilities of which are inherently incompatible with the responsibilities of his public office." In a 1991 advisory opinion, the Ethics Commission applied this provision to prohibit a state legislator from providing paid consulting services that involve the Massachusetts Legislature. Therefore, in compensated work for a private employer, a legislator may not provide advice about Massachusetts legislative matters, including advice on "how to receive some advantage or favorable treatment from the legislature, or how to lobby colleagues."

Furthermore, § 23(b)(2) prohibits a state employee from using or attempting to use her official position to secure for herself or others unwarranted privileges of substantial value which are not properly available to similarly situated individuals. This provision prohibits a legislator's use of state time, facilities, personnel or equipment to benefit her private activities or those of her private employer. To comply with § 23(b)(2), a legislator must conduct any private business entirely outside of state time and without the use of state resources.

Disclaimer

This Advisory is intended to summarize the State Ethics Commission’s advice concerning compliance with the conflict of interest law and is informational in nature.  It is not a substitute for advice specific to a particular situation, nor does it mention every aspect of the law that may apply in a particular situation.  Public employees can obtain free, confidential advice about the conflict of interest law from the Commission’s Legal Division by submitting an online request on our website, by calling the Commission at [phone] and asking to speak to the Attorney of the Day, or by submitting a written request for advice to the Commission at One Ashburton Place, Room 619, Boston, MA 02108, Attn: Legal Division.