| Date: | 01/11/1983 |
|---|---|
| Organization: | State Ethics Commission |
An employee with the state Department of Revenue who is an attorney will not violate § 4 of the conflict of interest law by representing his wife, an immediate family member, before the state Merit Rating Board under an exemption in § 4, but he may not represent his wife's sister's husband, not an immediate family member, in a matter before the state Appellate Tax Board.
You are an employee of the state Department of Revenue (DOR) and an attorney. Your DOR duties involve [description of duties omitted]. You have no involvement with the DOR's Division of Local Services which is concerned with local real estate taxes and their assessment.
Your wife's automobile was involved in an accident and, as a result, the company which insured the auto assessed an insurance premium surcharge. Your wife has filed an appeal with the Massachusetts Merit Rating Board (Board), a state agency. See, G.L. c. 6, §183. You would like to represent your wife in her appeal.
You also own a home which you built in the Town of (Town) in 1967. Your sister-in-law's (wife's sister's) husband built a similar home in the same area one year earlier. In July of 1982, the Town increased the assessment of these two homes. You and your sister-in-law's husband filed applications for abatements with the Town which were not granted. You both have now filed appeals with the state Appellate Tax Board (ATB), a quasi-judicial agency within, but not subject to the supervision of, the DOR. See G.L. c. 58A, § 1 et seq. You intend to represent yourself in the proceedings. However, because of the numerous similarities in these two properties, you expect that the appeals may be consolidated either by the member of the ATB hearing the cases or by motion of the Town assessors. If so, you will be placed in the position of appearing not only on your own behalf, but also on behalf of your sister-in-law's husband.
While you remain employed by the DOR, may you;
a) represent your wife in her action before the Massachusetts Merit Rating Board; and/or
b) represent your sister-in-law's husband in the case before the ATB?
a) Yes
b) No.
As an employee of DOR, you are a "state employee", G.L. c. 268A, §1(q), and, as a result, subject to the conflict of interest law. Section 4(c) of that law prohibits you from appearing as agent or attorney for anyone other than the state in connection with any "particular matter"[1] in which the state is a party or has a direct and substantial interest.
The Massachusetts Merit Rating Board's proceedings and determinations regarding insurance surcharge appeals would be particular matters within the scope of § 4, and ordinarily you would be prohibited by § 4 from representing non-state parties in relation to these proceedings and determinations. However, § 4 provides an exemption from its provisions for a state employee acting with or without compensation, as agent or attorney for or otherwise assisting or aiding a member of his immediate family as long as a) he has neither participated in nor had any official responsibility for the matter and b) the state official responsible for his appointment gives his approval. "Immediate family" is defined in § 1(e) as the state employee, his spouse and their parents, brothers, sisters and children. Therefore, your representation of your wife before the Massachusetts Merit Rating Board is not prohibited by § 4, provided that you receive approval from your appointing official.
On the other hand, the definition of immediate family does not include your sister-in-law's husband. The Commission, in accord with conflict opinions of the Attorney General, has held that decisions made by municipal assessors concerning the revaluation of real property are particular matters of direct and substantial interest to the state. EC-COI-79-7; Atty. Gen. Conf. Op. No. 741. Therefore, § 4(c) prohibits you from appearing as agent or attorney for anyone other than the state in connection with such particular matters. Since your sister-in-law's husband does not qualify for the exemption for assisting immediate family members, nor any other exemption in § 4, you may not appear on his behalf before the ATB. Section 4(c) does not prohibit you from representing yourself before the ATB because you are not "acting as agent or attorney" for someone other than the Commonwealth, but rather, are appearing on your own behalf.
End Of Decision
