| Date: | 05/05/1983 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
A member of the General Court who is also an attorney in private practice is prohibited under § 4 of the conflict of interest law from appearing for compensation as attorney for a client in a DPU hearing on an application for a common carrier certificate because an application for a common carrier certificate from the DPU is not a ministerial matter.
You are a member of the General Court and a practicing attorney. A prospective law client wishes to apply to the state Department of Public Utilities (DPU) for a common carrier certificate, under G.L.c. 159B, s.3.
Does G.L. c. 268A permit you to appear for compensation as attorney for a private party in a DPU hearing on an application for a common carrier certificate?
No.
As a member of the General Court, you are a state employee as that term is defined in G. L. c. 268A, s.1(q), the conflict of interest law.
Section 4 of c. 268A states:
[N]o member of the general court shall personally appear for any compensation other than his legislative salary before any state agency, unless:
(1) the particular matter[1] before the state agency is ministerial in nature; or
(2) the appearance is before a court of the commonwealth; or
(3) the appearance is in a quasi-judicial proceeding.
For the purposes of this paragraph, ministerial functions include, but are not limited to,. . the filing or amendment of: tax returns, applications for permits or licenses, incorporation papers, or other documents. For the purposes of this paragraph, a proceeding shall be considered quasi-judicial if:
(1) the action of the state agency is adjudicatory in nature; and
(2) the action of the state agency is appealable to the courts; and
(3) both sides are entitled to representation by counsel and such counsel is neither the attorney general nor the counsel for the state agency conducting the proceeding.
An application for a common carrier certificate from the DPU is not a ministerial matter. Under the governing statute, G.L. c. 159B, s.3. an applicant must appear at a hearing and prove that he is "fit, willing and able properly to perform the services proposed," and also that the public convenience and necessity require the proposed service. The applicant must make a prima facie case even if there is no opposition presented at the hearing. Such an application is not automatically granted, but rather the DPU first must find facts which justify issuance of a certificate. Thus, an application for such a certificate is not analogous to the filing of incorporation papers or tax returns, and so is more aptly characterized as discretionary.
Moreover, a hearing on a common carrier certificate application is not a quasi-judicial proceeding as defined in c. 268A, s.4. Although it can be characterized as an adjudicatory proceeding (as that term is defined in G.L. c. 30A, s.1(l)), and is ultimately appealable to the Supreme Judicial Court, it does not satisfy the third criterion of "quasi-judicial proceeding." Under 220 CMR 271.02, an employee of DPU's Commercial Motor Vehicle Division may, under certain circumstances, investigate and report to the Division Director (who issues the decision) on any new common carrier certificate applications. Therefore, counsel for the state agency conducting the proceeding may conceivably appear at the hearing to oppose such an application. The "quasi-judicial" exemption set forth in s.4 for legislators was primarily intended to cover administrative hearings which adjudicate rights between two non-state parties, and not the type of DPU hearing envisioned under G.L. c. 159B, s.3.[2]
End of Decision
