Opinion  EC-COI-81-121

Date:	09/01/1981
Organization:	State Ethics Commission

Facts

You were sworn in as a voting member of ARC, a state agency with regulatory authority on (date omitted). You also maintain a private law practice and for the past £our years have been counsel to DEF, a municipal Commission. [1] You also have been, over the last six months, negotiating the sale of two entities one in Town X and the other in Town Y, and the concurrent transfer of the entities' licenses. 

Question

You ask whether, with certain precautions, you may complete the sale of these entities without violating the state conflict of interest law, G.L. c. 268A.

Answer

The Commission concludes that you may.

Discussion

       In rendering this opinion, the Commission has relied on the facts as you have stated them and has not made any independent investigation of those facts. The sale of the entities involves the transfer of the licenses from the present to the new owners. This transfer must be approved by the regulatory body in each municipality and by the ABC. See, (statute omitted). The power of ABC to approve or disapprove the determination by the local regulatory body is extremely broad as "[t]he legislative history of (statutes omitted) as amended, clearly shows that the powers of the body were not intended to be perfunctory or limited. (Case citation omitted). As a member of ABC, you are a state employee. However, since you are not an elected official and you occupy a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, you are a "special state employee". G.L. c. 268A, s.1(o). Section 4(a) prohibits a state employee from receiving compensation from anyone other than the Commonwealth in relation to any particular matter [2] in which the state is a party or has a direct and substantial interest. Section 4(c) prohibits a state employee from appearing as agent or attorney, regardless of compensation, for anyone other than the Commonwealth in connection with any particular matter in which the state is a party or has a direct and substantial interest. The seventh paragraph of s.4 limits the application to special state employees of s.s.4(a) and 4(c) to particular matters, a) in which the employee has at any time participated as a state employee, or b) which is or within one year has been a subject of his official responsibility, or c) which is pending before the agency in which he is serving. Therefore, you would be proscribed from being compensated in relation to the transfer of the licenses even though you are a special state employee as they will be pending within your own agency, ABC, and those transfers are "particular matters" as defined in the conflict law. You state that you will not participate in any way in either the local or ABC proceedings concerning these transfers. Therefore, once the transfers are approved, you will be able to take part in the completion of the sale since it is the transfers and not the sale which are of direct and substantial interest to the state. The sale is a different particular matter. Cf. EC-COI-81-26 Section 6 of G.L. c. 268A prohibits your participation as an ABC employee in any particular matter in which you, your partner, or any business organization in which you are an officer, director or partner has a financial interest. The transfers of the licenses would be "particular matters" in which you would have a financial interest since denial of the transfer by ABC could vitiate the sale. Section 6 further states that in this matter, or in any future matters in which you or your partners have a financial interest and in which you would normally be required to participate as an ABC member, you must advise the official responsible for your appointment and the Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of the prohibited financial interest. Your appointing official must then either, 1) assign the particular matter to another employee; or 2) assume responsibility for the particular matter; or 3) make a written determination, forwarding copies to you and the Ethics Commission, that the financial interest is not so substantial as to be deemed likely to affect the integrity of the services which the Commonwealth may expect from you. You have stated that you will not participate in any way in the transfer approval at ABC. You would still be required to comply with the disclosure provisions of s.6.

       As a result of your former employment by DEF, you are a former municipal employee and you should be mindful of s.s.18(a) and 18(b) of the conflict law. The former prohibits the receipt of compensation by you forever from anyone other than DEF's municipality in relation to any particular matter in which the municipality has a direct and substantial interest and in which you participated[3] as a municipal employee. This would include matters in which you were involved while employed by DEF. You would have to refrain from acting on any such matters at ABC since you would be receiving compensation from someone other than DEF's municipality. Section 18(b) places a one-year prohibition on your personal appearance as agent or attorney before any agency of DEF's municipality regardless of compensation, for anyone other than the municipality in connection with a particular matter which was within your official responsibility as a municipal employee during the last two years.

Decision

       In conclusion, the conflict of interest law will not prohibit you from completing the sale of the two entities as long as you comply with the precaution and procedures detailed above.

[1] You also informed the Commission that several cases in which you participated as attorney for DEF, involving various types of licenses, are still continuing. You state you will have no further contact with these cases and, therefore, this opinion will not address the issues raised by those cases.

[2] For the purposes of G.L. c. 268A, "particular matter" is defined as any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charges, accusation, arrest, decision, determination, finding but excluding enactment of general legislation by the general court. G.L. c. 268A, s.1(k).

[3] For the purposes of G.L. c. 268A, "participate" is defined as participation 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 otherwise. G.L. c. 268A,s.1(j).

 

End Of Decision