Opinion  EC-COI-82-153

Date:	11/09/1982
Organization:	State Ethics Commission

May a consultant/attorney who works part-time for a House Committee also represent a private organization which is interested in establishing off-track betting facilities in the Commonwealth? 

Facts

All identifying information has been deleted from this opinion as required by Chapter 268B, § 3(g).

 

You are employed on a consultant basis for approximately twenty hours per week as an attorney for a House Committee (Committee). In that capacity you perform legal research assignments at the request of the Committee staff and executive director. You are also a private attorney and have been offered an opportunity to represent a private organization which is interested in establishing off-track betting facilities in the Commonwealth. Your activities would involve drafting enabling legislation on behalf of the organization for filing with the General Court for the 1983 session and in providing advice to the organization and its lobbyist during the legislative session. You state that the legislation would be modeled after comparable bills filed in prior years and would amend the General Laws to provide for the establishment and operation of off-track betting by the State Racing Commission in any municipality in country x which accepts the provisions of the enabling legislation. You also state that your representation of the organization would not involve lobbying activities or advocating passage of the legislation before members or employees of the General Court.

Question

Would you violate G.L. c. 268A, by assisting the organization in its proposed legislation while you serve as an employee of the General Court?

Answer

No.

Discussion

In your capacity as an employee of a committee of the General Court, you are a "state employee" within the meaning of G.L. c. 268A, § 1(q). In view of your part-time employment status, you are a "special state employee" and are therefore subject to certain less restrictive prohibitions under G.L. c. 268A in addition to other prohibitions which you share equally with full-time state employees.

As a special state employee, you are prohibited by G.L. c. 268A, § 4 from receiving compensation from or acting as agent or attorney for anyone other than the Commonwealth only in relation to a particular matter [1] (a) in which you have participated [2] as a state employee or (b) which is or within one year has been a subject of your official responsibility [3] or (c) which is pending in the General Court, the state agency in which you are serving. [4]

Since your proposed employment arrangement with the organization would be in relation to legislation pending in the General Court, the propriety of your arrangement depends on whether you would be receiving compensation in relation to a "particular matter" within the meaning of § 1(k). The enactment of general legislation by the General Court is specifically excluded from the definition of "particular matter." ON the other hand, the enactment of special legislation by the General Court has been interpreted by the Commission and Attorneys General to be a "particular matter." [5]

The feature which distinguishes special from general legislation is the particularity of the scope and purposes of the act's provisions. For example, legislation which practically affects a single community is regarded as special legislation, even where the act is drafted in more general terms. See, Belin v. Secretary of the Commonwealth, 362 Mass. 530 (1973). Conversely, where the predominant purposes of a bill are to achieve state, regional or general objectives, the bill will not be characterized as special legislation for the purposes of Article 89 of the Amendments to the Constitution of the Commonwealth of Massachusetts. Opinion of the Justices, 356 Mass. 775, 784 (1969). On the basis of your description of the act for which you have been asked to assist the organization the Commission advises you that the proposed enabling legislation would not constitute special legislation, inasmuch as the referendum feature of the legislation necessarily avoids the mandatory application of the act to a particular city or town within county x. [6]

The restrictions imposed on your conduct as a legislative employee are addressed in § 6 of Chapter 268A which prohibits your from participating as a state employee in any "particular matter" in which, in relevant part, the organization and any other business organization which employs you has a financial interest.

Section 6 further requires that a state employee whose duties would otherwise require him to participate in a prohibited matter must disclose to the official responsible for his appointment and the Ethics Commission the nature and circumstances of the matter and the financial interest involved, whereupon the appointing official must 1) assign the matter to another employee, 2) assume responsibility for it himself, or 3) make a written determination (to be filed with the Ethics Commission) that the financial interest involved will not "affect the integrity of the services which the Commonwealth may expect from the employee." Only if such a determination is made may the employee participate in the matter. Since research on legislation is a part of your duties as a legislative employee, you must file the disclosure required by § 6 whenever you are assigned a matter involving special legislation affecting the financial interests of the organization.

You should also be aware that G.L. c. 268A, § 23 imposes restrictions on your outside activities. In particular § 23(a) prohibits you as a state employee from accepting other employment which will impair your independence of judgment as a state employee. Additionally, § 23(e) prohibits you from, by your conduct, giving reasonable basis for the impression that any person can improperly influence you or unduly enjoy your favor in the performance of your official duties or that you are unduly affected by the kinship, rank, position or influence of any party or person. You should, therefore, refrain from representing the organization or other private clients in any proceedings which involve parties with whom you deal in your official legislative counsel capacity. See EC-COI-81-169. Although you state that your present legislative responsibilities involve merely internal Committee research assignments, you should observe the aforementioned restrictions should the scope of your legislative responsibility increase.

[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 court. G.L. c. 268A, § 1(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, § 1(j).

[3] "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).

[4] The limitation under (c) applies since you are employed by the General Court for more than sixty days annually.

[5] See, EC-COI-82-39 (home-rule-initiated legislation); EC-COI-82-9 (line-item in county budget); 81-81 (home-rule legislation); 80-46 (transfer of state-owned land in a specific community; see also, Attorney General Conflict Opinion Nos. 101, 451, 578.

[6]The Commission's conclusion rests solely on the facts as you have described them, and any material changes to the legislation might result in a different conclusion. For example, the absence of a referendum clause might render the legislation special and thereby invoke the prohibitions of § 4.

 

End of Opinion