Opinion  EC-COI-81-110

Date:	07/28/1981
Organization:	State Ethics Commission

A member of the General Court who is also an attorney may participate in a program providing free legal services and accept any fee-generating referrals from the program, provided that his appearances for compensation before state agencies are limited to ministerial or quasi-judicial proceedings.

Facts

You are a member of the General Court. You have been asked by the ABC Corporation (ABC) to participate in a program which provides pro-bono legal services to certain parties. participants in the program may also receive referrals of fee-generating cases.

Question

You ask whether your participation in the pro bono program or your receipt of fee-generating cases would violate the state conflict of interest law, G. L.c. 268A.

Answer

The Commission concludes that your participation in either phase of this program, subject to the restrictions outlined below, would not violate the conflict law

Discussion

       In rendering this opinion, the Commission has relied on the facts as you stated them and has not conducted any independent investigation of those facts. As a member of the General Court, you are state employee and, therefore, subject to the conflict of interest law. The provisions of §§4 (a) and 4 (c) prohibit a state employee from receiving compensation from, or acting as agent or attorney for, anyone other than the commonwealth in and substantial interest and over which you had official responsibility (4) while serving as a municipal employee during a two-year period prior to the termination of your ABC services. 

       On the basis of the information which you have provided. you would not be violating §18 (b) by acting as agent for DEF in connection with the subcontract because the scope of your official responsibility at the ABC did not include the preparation or awarding of contracts or the supervision of the DEF contract, but rather involved the supervision of other ongoing Projects. However, you should refrain from acting as the agent for DEF or any other private party in connection with particular matters related to projects at ABC which came under your official responsibility while a municipal employee in relation to any particular matter (1) in which the state is a party or has a direct and substantial interest. The fifth paragraph of §4, however, exempts members of the General Court from these prohibitions but adds the provision that no member shall personally appear for any compensation other than his legislative salary before any state agency unless :

1) the particular matter before the state agency is ministerial in nature (e.g. filing or amendment of tax returns, applications for licenses, incorporation papers)

2) the appearance is before a court of the commonwealth; or

3) the appearance is in a quasi-judicial proceeding. (2)  EC-COI-81-31.

Decision

       As a result of your exemption from §4 (a) and 4 (c), you are free to accept both pro-bono and fee-generating referrals provided you heed the restrictions on your appearances before state agencies. Your stated intention to include a type of practice indicates a specific area in which you may appear before a state agency, DEF in proceedings outside of those listed above. The Commission will not speculate on all the possible circumstances in which the provisions of §4 applicable to you may come into play. If a particular situation arises about which you are concerned, feel free to contact the Commission for a further opinion. (3)

End of Decision 

(1) Particular matter is defined as "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. G.L.c.268A, §1(k).

(2) A quasi—judicial proceeding is one where the action of the state agency is adjudicatory in nature, that action is appealable to the courts, and both sides are entitled to representation by counsel provided that such counsel can be neither the Attorney General nor the counsel for the agency conducting the proceeding: e.g. hearings of the Appellate Tax Board, Industrial Accident Board, etc. See, G. L.c. 268A, §4 ¶6.

(3) Section 7 of G.L.c.268A prohibits a state employee from having a financial interest in a, contract made by the commonwealth or a state agency. The Commission has previously ruled that this provision prohibits members of the General Court from accepting compensation from the commonwealth for representing indigent defendants in criminal cases See, EC-COI-80-122, 80-123. However, inasmuch as you indicate that you do not intend to accept fee-generating referrals of this type, §7 does not apply.

(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, §1(i).