Opinion

Opinion  EC-COI-82-172

Date: 12/20/1982
Organization: State Ethics Commission
Location: Boston, MA

A member of the General Court who is also an attorney in private practice may represent a private company without violating §§ 4 and 6 of the conflict of interest law because the proposed representation involves appearances before local licensing boards, and not state agencies. Any activities involving the filing of applications for licenses with a state agency would fall within the exemption to § 4 involving "ministerial matters." Section 6 prohibits the member from participating in any particular matter in which he or a business organization which employs him has a financial interest except that the enactment of general legislation is specifically excluded from the definition of "particular matter." Section 6, however, prohibits the member from participating as a member of the General Court in any special legislation affecting the financial interest of the Company and would also require the member to file a disclosure of that matter and of the member’s financial interests therein with the Ethics Commission.

Table of Contents

Facts

You are a member of the General Court and an attorney engaged in the private practice of law. You have been retained by a private company which conducts and engages in the activity of (description omitted) in various local business establishments. As their attorney you will be expected to protect and to promote their interests in the city which you represent as a legislator. This will entail your going before local licensing boards and may also require your appearance before the ABC a state agency, to obtain initial approval of a prototype device.

Question

As a member of the General Court, can you also represent a private company engaged in the activity of (description omitted)?

Answer

Yes, subject to certain limitations.

Discussion

As a member of the General Court you are a state employee within the meaning of G.L. c. 268A, s.1(q), and are subject to the conflict of interest law. Section 4 of that statute places restrictions on your activities in representing interests other than those of the state where the state is a party or has a direct and substantial interest. The fifth paragraph of that section exempts members of the General Court from s.4 (a) and s.4 (c), but prohibits appearances by a member of the General Court for any compensation other than his legislative salary before any state agency unless, (1) the particular matter is ministerial (e.g. filing an 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. To the extent that your proposed representation of the company involves appearances before local licensing boards, and not state agencies, the prohibitions of s.4 do not apply to you as a member of the General Court. To the extent that your proposed activities involve filing applications for license numbers with the ABC, a state agency, your appearances would fall within the exemption to s.4 since they would involve "ministerial matters." See, EC-COI-80-112.

Section 6 prohibits a state employee from participating in any particular matter in which, in relevant part, he or a business organization which employs him has a financial interest. The enactment of general legislation is specifically excluded from the definition of "particular matter." (s.1(k)). Section 6, however, prohibits you from participating as a member of the General Court in any special legislation affecting the financial interest of the company. See Attorney General Conflict Opinions 310, 771. Should any such special legislation come before you as a disclosure legislator, s.6 would also require you to file a disclosure of that matter and of your financial interests therein with the Commission. Although there is an exemption provision contained in s.6 which would allow state employees to participate in certain circumstance, that exemption does not apply to you as an elected official. See EC-COI-79-64, District Attorney for the Hampden District v. Charles T. Grucci (Mass Adv. Sh.(1981)2125, 2128 fn.3).[1]


End of Decision

[1] In addition to the prohibitions of s.6, you should also be aware that s.6A requires a public official to file a disclosure statement with the Commission if, in the discharge of his official duties, he would be required to take any action which would substantially affect his own 7 financial interest unless the effect on him is no greater than the effect on the general public.

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