Opinion  EC-COI-82-142

Date:	09/29/1982
Organization:	State Ethics Commission
Location:	Boston, MA

A Special Assistant District Attorney does not violate §4 of the conflict of interest law by being paid by the Commonwealth where the funds are attributable to the municipality that will benefit from the legal action.

FACTS

You are and attorney in private practice and expect to be hired as a special assistant district attorney in X (name) County.  In that capacity you would initiate criminal and injunctive proceedings related to certain activities in a city.

Your salary would be paid by the X County District Attorney and would be attributable in its entirety to a contribution from the city involved to the District Attorney to pay for the legal expenses of the proceedings which would benefit the City.

QUESTION

Can you accept compensation for your services from the District Attorney where your compensation would be attributable in its entirety to a contribution by the City?

ANSWER

Yes.

DISCUSSION

As a special assistant district attorney in X County, you would be a state employee under G.L. c. 268A, §l(q).  In view of the part-time nature of your proposed employment arrangement, you would be a "special state employee” under G.L. c. 268A., § l (o), and would be subject to the prohibitions of G.L. c. 268A, albeit in a less restrictive way.  Under G L. c. 268A, §4 a special state employee may not be paid by someone other than the commonwealth or a state agency if his compensation is in relation to a particular matter ^l/ (a) in which he has participated^2/  as a state employee or  (b) which is .or within one year has been a subject of his official responsibility^3/ or (c) which is pending in the state agency in which he is serving, provided that he has served for more than sixty days during the prior three hundred and sixty-five day period.

The prohibitions of §4 avoid the conflict of loyalties inherent wherever a state employee serves two masters and restrict state employees from using their status as employees to further their private interests where those interests overlap with the commonwealth's.  See, Commission Compliance Letter to the Department of Mental Health 81-21, (July 2,.1981).  For example, this section has been applied to prohibit state employees from supplementing their state salaries with contributions from non-state parties.  Id., p. 6.  The section is designed to prevent a state employee from having to choose between his loyalty to the commonwealth as a state employee and his loyalty to a non-state party which is compensating him in a matter of interest to the state.

However, the Commission has not applied §4 to prohibit a state employee from receiving a commonwealth salary, the funding for which has been derived from a municipal, county or federal source.  In such situations, the receipt of such compensation does not reflect either an unwarranted benefit or divided loyalties to which §4 was addressed.  Cf. EC-COI-82-118.  Moreover, such arrangements are common to state agencies which apply federal grants to the salaries of state employees.  As a matter of sound policy,  the Commission will be reluctant to adopt constructions of G.L. c. 268A which are at odds with the purposes of the law and which would immediately place large numbers of state employees in violation of §4 by the mere act of receiving their salary from the commonwealth.^4/  Compare, Buss, The Massachusetts Conflict of Interest Statute:  An Analysis;   45 B.U. Law  Rev. 299, 372, n.377(1965) [a literal reading of §7 which would place every state employee in violation of the statute cannot be accepted].

CONCLUSION

In view of the foregoing, the Commission advises you that §4 was not intended to prohibit the salary arrangement which you have proposed.^5/

^1/ "Particular matter," 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, §l(k).

^2/ "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 otherwise.  G.L.  c. 268A, §l(j).

^3/ "Official responsibility," the direct administrative and 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, §l(c).

^4/  The policy of permitting contributions to the salaries of federal employees by other levels of government is specifically authorized under the federal counterpart of G. L.  c. 2 6 8A.  See, 18 U.S.C. 209(a).

^5/ The Commission's conclusion rests on the facts as you have described them.  Should your compensation arrangement change in any wav, you should renew with the Commission your request for an advisory opinion.