Opinion

Opinion EC-COI-82-33

Date: 03/19/1982
Organization: State Ethics Commission

Section 4 of the conflict of interest law does not prohibit a state employee who is also an attorney in private practice from participating as an attorney in civil matters in federal district court or in matters before a municipality provided that the state neither was a party nor had a direct and substantial interest in those matters. Under section 23 of the law, the state employee should refrain from representing private clients in any proceedings which involve parties with whom he had dealings in his state capacity.

Table of Contents

Introduction

You currently serve as an employee of the state agency (ABC). Outside of normal working hours you maintain a private law practice. You wish to know the limitations which the conflict of interest law, G.L. c. 268A, places on your law practice. In particular you seek guidance over the application of G.L. c. 268A to certain civil matters pending before a federal district court and municipal agencies in the Town of OEF. The Commission advises you that G.L. c. 268A permits you to continue your private law practice, subject to the limitations set forth below.

In rendering this opinion, the Commission has relied upon the facts as you have stated them and has not made any independent investigation of those facts.

Discussion

As an ABC employee, you are a state employee within the meaning of G.L. c. 268A, § 1(q). As a state employee you are prohibited by G.L. c. 268A, §§ 4(a) and (c) from receiving compensation from or acting as agent or attorney for anyone other than the Commonwealth in relation to any particular matter[1] in which the Commonwealth or a state agency is a party or has a direct and substantial interest. For example, you may not represent a private client in particular matters which bring the financial interest of the state into play, EC-COI-79-23; regulatory or adjudicatory proceedings before state agencies, EC-COI-81-77; criminal proceedings, EC-COI-79-72, and in civil litigation involving the Commonwealth or a state agency as a party, EC-COI-80-48. You should also be aware that certain proceedings before municipal agencies may fall within the restrictions of § 4 where a state agency extensively regulates, supervises or is involved in the local proceeding. Municipal matters of direct and substantial interest to the state include assessing practices, EC-COI-79-7; cable television licensing, EC-COI-80-95; election practices, EC-COI-79-60, and liquor licensing, EC-COI-79-3.

On the basis of the information which you have provided, the Commission advises you that none of the specific cases which you have raised fall within the aforementioned prohibitions of § 4. The civil suit in federal district court involves the fiduciary duty of a corporate officer and is a matter in which the state is neither a party nor has a direct and substantial interest. Similarly, none of the matters which you now have pending or are considering initiating before local municipal agencies in the Town of OEF are prohibited by § 4. In particular, the rezoning petition before the planning board, the application for a sign variance before the board of appeals and the submission of a request to the school committee to provide bussing for parochial school children are all local matters which do not rise to the level of direct and substantial interest to the state.

You should be aware, however, that G.L. c. 268A, § 23 imposes additional 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 judgement 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. In your role at ABC, you sit as a hearing officer in adjudicatory proceedings and also draft decisions. To avoid raising questions over the impartiality of these and other ABC proceedings, you should, refrain from representing private clients in any proceedings which involve parties with whom you deal in your official ABC capacity. For example, you should not be involved in a lawsuit against (description of lawsuit omitted). You should feel free to contact the Commission should future situations arise where you are uncertain over the application of the conflict of interest law to your private law practice.

[1] G.L. c. 268A, § 1(k) defines particular matter as "any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, findings but excluding the enactment of general legislation by the general court."

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