| Date: | 10/16/1984 |
|---|---|
| Organization: | State Ethics Commission |
A former city solicitor, whose law partner is the current city solicitor, may consult with clients on development matters in the city subject to the restrictions under §§ 18 and 23(c) of the conflict of interest law.
You are an attorney in private practice in a City (City) and were formerly the City Solicitor. One of your partners is the current City Solicitor.
You state that two potential clients wish to hire you as a consultant. Each potential client plans to develop property in the City, one for residential purposes, the other for business and industrial purposes. Both clients will eventually be applying for permits from City agencies.
Does G.L. c. 268A permit you to be hired as a consultant by such clients?
Yes, although you are subject to the restrictions described below.[1]
G.L. c. 268A, § 18(d) prohibits a partner of a municipal employee from acting as agent or attorney for anyone, other than the city in connection with any particular matter in which the city is a party or has a direct and substantial interest and in which the municipal employee participates or over which such employee has official responsibility. See EC-COI-84-48. As the City Solicitor, your partner is considered a municipal employee for the purposes of the conflict law, and you are therefore subject to the §18(d) restriction.
The issue you raise concerns the inclusiveness of the phrase "acting as agent or attorney." Inasmuch as acting as "agent," as well as acting as "attorney," is proscribed, formal legal representation is not required: merely speaking or writing on behalf of a nongovernment party would be acting as an "agent." See Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 326 (1965). Thus, the Commission has repeatedly held that preparing and/or signing clients' government contracts, submitting their applications, acting as their advocates in application processes as well as personally appearing before governmental agencies on their behalf constitutes "acting as an agent or attorney." See, e.g. EC-COI-84-6; 83-78.[2]
You state that you would not appear before or contact any municipal agency or individual on your private clients' behalf, and that you would not prepare any documents for them regarding applications to or correspondence with any municipal agencies or individuals. The issue remains, however, whether your being hired to solely give advice to such clients regarding their development projects and the nature of the groups and individuals before whom they will be appearing for licenses would violate § 18(d). The Commission concludes that it would not, for the following reasons.
Commentators on both Chapter 268A and its federal counterpart, 18 U.S.C. § 201 et seq., state that the language used suggests that it is mainly representative activity which was intended to be covered. Buss, supra at 327. See also Perkins, The New Federal Conflict of Interest Law, 76 Harv. L. Rev. 1113, 1146-47 (1963) [which stated that acting as agent or attorney would not encompass mere assistance rendered to a private employer on government contract matters at the company offices or plant where no communication with government officials is involved, since the "representative activity" referred to in the legislative history of the federal conflict law would be absent]. The definition of "attorney" as one who acts on behalf of another[3] further supports this interpretation.
To the extent that the Attorney General and the State Ethics Commission have taken a broader view of what constitutes acting as an "attorney," they have limited their interpretations to expanding what is representative rather than including non-representative activities such as giving advice or rendering a legal opinion. In Attorney General Conflict Opinions 37,100 and 154, preparing and submitting returns with respect to various states taxes or corporate certificates of condition was considered acting as agent or attorney. In EC-COI-84-28, the Commission focused on the prohibition against acting as a private party's spokesperson before a government agency, yet also included participation in the contract negotiation process and the signing of documents and correspondence in connection with a government contract as proscribed activities. See also EC-COI-84-6; 83-145; 83-24. Conversely, the Commission has specifically stated that participation in a private employer's internal board discussions or votes would not be considered "acting as agent or attorney." EC-COI-84-28. The distinguishing feature appears to be the "acting on behalf of" factor present in spokesmanship, negotiation, and the signing of documents and submission of applications. The rationale is that publicly acting on behalf of private clients on matters in which your partner participates as a municipal employee raises the appearance of potential impropriety: i.e. influence peddling, the use of insider information and favoritism all at the expense of the city. The rendering of purely in-house advice does not appear to raise the same concerns. As the Justice Department flatly stated in discussing 18 U.S.C. Section 207,[4] the federal counterpart to G.L. c. 268A, § 5 and § 18, that prohibition does not preclude "activities which may fairly be characterized as no more than aiding or assisting another." See Perkins, supra at 1155. Based on the foregoing, the Commission concludes that the rendering of advice to private clients which you propose would not constitute "acting on behalf of" those clients and thus would not be prohibited by § 18(d).
As you are probably aware, § 18(a) and § 18(b) restrict your activities as a former City Solicitor. Section 18(a) prohibits you from acting as agent or attorney or receiving compensation from anyone other than the city in connection with any particular matter in which the city is a party or has a direct and substantial interest and in which you [as opposed to your partner] participated as a municipal employee. For the purpose of this permanent prohibition, each new application, contract, case, determination is a different particular matter. "Acting as agent or attorney" would be interpreted as discussed above. Section 18(b) further prohibits you for one year after your employment ceased from personally appearing before any agency of the city as agent or attorney for anyone other than the city in connection with any particular matter as previously described which was within your official responsibility[5] during your last two years of municipal employment.
Finally, due to your past position as City Solicitor, you are subject to two of the standards of conduct set forth in § 23 of the conflict law as a former municipal employee. Specifically, you are prohibited from accepting employment or engaging in any business or professional activity which will require you to disclose confidential information which you gained by reason of your official position or authority, or from using such information to further your personal interests. See G.L. c. 268A, § 23(¶ 3). Thus, while you may make use of the expertise you gained as a City Solicitor in the advice you gave your present clients, you may not advise them on internal municipal procedures, standards or other information not otherwise available to the public.
End Of Decision
