| Date: | 05/24/1983 |
|---|---|
| Organization: | State Ethics Commission |
| Location: | Boston, MA |
A former city corporation counsel who is now a lawyer in private practice as an associate in a law firm and who, as a city employee, participated substantially in a development matter, may enter into a contract on behalf of the law firm with the city agency handling the development matter to continue working on the matter without violating §18 of the conflict of interest law.
You are counsel in a law firm (Firm) which does business as a professional corporation. You are not a shareholder in the Firm nor is your name included in the Firm's title, and your compensation is not measured by the income of the Firm. Your compensation arrangement is analogous to that of an associate in the firm.
You were formerly Corporation Counsel for the City of (name omitted); you held this position (dates omitted), prior to which you were Chief General Counsel of a municipal agency, ABC (dates omitted), and Assistant Corporation Counsel for the city (dates omitted). While Corporation Counsel and Assistant Corporation Counsel, you from time to time worked on various proposals for a certain municipal construction project (the Project) and you advised the head of municipal agency DEF on matters relating to such proposals.
Because of your experience in this area, the head of DEF would like you to continue to advise him. To this end, the city would like to contract with the Firm. You will participate extensively in this project, and other resources of the Firm will also be utilized. The Firm will receive all of the compensation and your salary will not be affected. Persons who participate in the project would be designated special municipal employees.
As a former Corporation Counsel to the city, you are a former municipal employee,[1] and subject to G.L. c. 268A, s.18. Moreover, if the Firm were to contract with the city to provide advice to the head of DEF, and the terms of that contract clearly called for your services either by name or particularized description, you would again be a municipal employee[2] (albeit a special municipal employee) and subject to other provisions of G.L. c. 268A.
1. Section 18 of G.L. c. 268A contains provisions which prohibit partners of municipal employees or former municipal employees from representing non-city parties in certain matters; whether or not you are considered a partner in the Firm determines whether other members of the Firm will be restricted thereby. The Commission finds that you are not at this time a partner, for the purposes of G.L. c. 268A.
The Commission bases this finding on the fact that your financial arrangement with the Firm is in substance analogous to that of an associate, i.e. you do not receive a share of the overall profits of the Firm, but a set salary. Previous Commission advisory opinions and those of the Attorney General have held that one's status as an associate does not result in the application of c. 268A to the partners in one's firm. See EC-COI-81-30, 79-57; Atty. Gen. Conf. Op. No. 845. In some cases, the Commission has also examined whether, regardless of substance, a person gives the public appearance of being a partner. Cf. EC-COI-82-19. However, reviewing the facts you have submitted, the Commission finds no basis for such an appearance, since your name is not included in the Firm's title, and you will not be listed with the partners, but as counsel to the Firm.[3]
2. As former Corporation Counsel for the city, you are subject to s.18 of G.L. c. 268A, and as a special municipal employee with respect to this project, you are subject to s.s. 2, 3 and 17-23 of the statute.
Section 18(a) states:
A former municipal employee who knowingly acts as agent or attorney for or receives compensation, directly or indirectly from anyone other than the same city or town in connection with any particular matter in which the city or town is a party or has a direct and substantial interest and in which he participated as a municipal employee while so employed, [shall be punished by a fine or imprisonment or both].
If the Firm contracts with the city, you will not be acting as attorney for anyone other than the city in the matter, but you will be compensated by someone other than the city for it, i.e. by the Firm. Further, the decision to develop this project, and any subsequent contracts to construct it, are particular matters[4] in which you participated[5] while a municipal employee.
Nevertheless, your compensation for this project will not violate s.18(a) because it falls within an exemption contained in the last paragraph ofs.18, to wit:
This section shall not prevent a present or former special municipal employee from aiding or assisting another person for compensation in the performance of work under a contract with or for the benefit of the city or town; provided that the head of the special municipal employee's department or agency has certified in writing that the interest of the city or town requires such aid or assistance and the certification has been filed with the clerk of the city or town. The certification shall be open to public inspection.
Since you will be a special municipal employee for purposes of this project and the Firm is a professional corporation[6] which you will be assisting in the performance of the contract with the city, you will not violate the statute, provided that the head of DEF files the required certification with the city clerk.
Section 17(a) which applies to current municipal employees, states:
No municipal employee shall, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly receive or request compensation from anyone other than the city or town or municipal agency in relation to any particular matter in which the same city or town is, a party or has a direct and substantial Interest.
However, s.17 contains an exemption identical to that in s.18 cited above. If you meet the terms of that exemption (i.e., if the proper certification is filed), you will not violate s.17.
End of Decision
