Opinion  EC-COI-80-112

Date:	11/02/1980
Organization:	State Ethics Commission
Location:	Boston, MA

A member of the General Court who is also an attorney in private practice may represent a client seeking to develop a housing project in a Town without violating § 4 of the conflict of interest law but would be prohibited from personally appearing before a state agency for compensation to negotiate or advocate on behalf of the client's efforts to obtain financing from that agency.

Introduction

You are a member of the General Court and an attorney engaged in the private practice of law. You have been retained by a client seeking to develop a housing project in the Town. The project is seeking mortgage funds from the Massachusetts Housing Finance Agency (MHFA), a state agency, pursuant to General Laws Chapter 23A App. You advise us that you intend to file "the necessary application for permits and licenses as well as other documents that are required by the Massachusetts Housing Finance Agency. Also, [you] would be dealing with the Attorneys that represent the Massachusetts Housing Finance Agency with respect to the closing of the loan." You ask whether you may engage in these activities without violating the conflict-of-interest law, General Laws Chapter 268A. We conclude that you may prepare the documents described but may not negotiate the terms of the loan with MHFA's attorneys.

In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts.

Discussion

As a member of the General Court, section 4, paragraph 5 of Chapter 268A prohibits you from receiving compensation other than your legislative salary for personally appearing before any state agency except in connection with "ministerial matters,"^[1] court appearances or "quasi-judicial proceedings."^[2] Since the filing of applications for permits or licenses and other documents are "ministerial matters" as that term is defined in section 4, you would not be prohibited from engaging in that activity, on behalf of your client. Accord, EC-COI-79-92.

However, it is evident that the negotiations you contemplate with counsel for MHFA regarding this loan are not ministerial matters, nor court appearances, nor will they occur in the context of a quasi-judicial proceeding. Therefore, as a member of the General Court, you would be prohibited from personally appearing before MHFA for compensation to negotiate or advocate on behalf of your client's efforts to obtain financing from that agency. See also EC-COI-79-66,-92, EC-COI-79-127.

STATE ETHICS COMMISSION

BY:
Robert V. Greco
General Counsel

End of Decision

[1] "Ministerial functions", as defined in section 4, include "the filing or amendments of: tax returns, applications for permits or licenses, incorporation papers, or other documents."

[2] Section 4 provides that a proceeding is quasi-judicial if:
"(1) the action of the state agency is adjudicatory in nature; and
(2) the action of the state agency is appealable to the courts; and
(3) both sides are entitled to representation by counsel and such counsel is neither the attorney general nor the counsel for the state agency conducting the proceeding."