| Date: | 10/03/1983 |
|---|---|
| Organization: | State Ethics Commission |
The conflict of interest law does not permit legal counsel for a legislative committee to act as attorney for plaintiffs in a lawsuit filed on behalf of residents of the Commonwealth where the Commonwealth is a party and has a direct and substantial interest in the lawsuit.
You are an attorney and are currently employed by the General Court as legal counsel for a legislative committee. The scope of your responsibilities includes advising the committee on all legal matters, conducting research, drafting legislation and proposing amendments to bills. You recently filed a complaint in the case of [identifying information deleted]. The complaint was filed on behalf of the committee chairman and other members and employees of the committee in their capacity as residents of the commonwealth.
Does G.L. c. 268A allow you to act as attorney for the plaintiffs while you remain employed by the General Court?
No.
As an employee of the General Court, you are a state employee within the meaning of G.L. c. 268A, Section 1(q), as are members of the General Court. Under G.L. c. 268A, Section 4(c), a state employee may not, otherwise than in the proper discharge of his official duties, act as attorney for anyone (other than the commonwealth) in connection with a particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. The lawsuit which you filed on would constitute a particular matter in which a state agency is both a party and has a direct and substantial interest.
In reviewing the exemptions to Section 4 it is clear that members of the General Court could permissibly act as attorney on behalf of the plaintiffs in the lawsuit because the appearance would be "before the court of the commonwealth." See, G.L. c. 268A, paragraph 5; EC-COI-82-137. It does not follow, however, that employees of the General Court would share the exemption to Section 4 which is currently limited to members of the General Court.
The plain language of Section 4 distinguishes legislators from non-legislators. This distinction reflects a view that legislators are customarily elected to represent the interests of their private constituency and therefore cannot be expected to maintain the same degree of loyalty to the interests of the commonwealth which is expected of non-legislators. See, EC-COI-83-87, 83-102; Commission Advisory 83-2. The particular exemption at issue, while enacted as an amendment to G.L. c. 268A, is consistent with the intent of the special Commission which drafted G.L. c. 268A to avoid "mak(ing)" membership in the Legislature so onerous as to make it financially impossible for qualified people to serve, and yet to draw definite lines marking the limits of acceptable practice." See, Report of the Special Commission on the Code of Ethics, 1962 House Doc. No. 3650, p. 12. The terms of the less restrictive application of Section 4 are limited to legislators and do not extend to their employees. To hold otherwise would be inconsistent with both the plain language of Section 4 and the policy behind the exemptions.
Further, your representation of the plaintiffs would not appear to qualify for the Section 4(c) exemption as "in the proper discharge of (your) official duties." The statute provides some latitude to an employee's appointing official to determine what would constitute the proper discharge of official duties, and the Commission will customarily defer to the appointing official's discretion. See, EC-COI-80-96, 81-89, 83-20; cf.81-33. However, an appointing official's discretion under Section 4 is not unlimited. For example, in Commission Compliance Letter 81-21, the Commission indicated that the authorization given by Department of Mental Health officials to DMH employees with supplementary salary arrangements would not excuse or otherwise serve as a defense to a Section 4 violation. Whether any particular determination by an appointing official would so far exceed the customary job requirements for an employee as to frustrate the purposes of the statute is a judgment which ultimately rests with the Commission as the primary civil enforcement agency under G.L. c. 268A. See G.L. c. 268B, Section 3(1).
As a legislative employee, your responsibilities include research and drafting services for the committee. Those responsibilities exercised in the proper discharge of your official duties could reasonably extend to representing individuals in their capacity as legislators or members of the committee in a court suit, for example challenging a particular law or regulation as it affects the legislator or leadership in the official capacity. In contrast, the lawsuit which you filed was filed on behalf of the plaintiffs in their private capacity as residents of the commonwealth, and not as members of the committee. In view of the absence of a distinct institutional interest of the committee which would be served by your filing and pursuing the lawsuit, the Commission advises you that the proper discharge of your official duties would not reasonably extend to representing the plaintiffs in the lawsuit.
