Opinion  EC-COI-84-129

Date:	11/27/1984
Organization:	State Ethics Commission

An associate at a law firm may serve as labor counsel to a state agency as a special state employee, subject to the provisions of §§ 4 and 23(b)(2) of the conflict of interest law.

Facts

You are an associate attorney with a law firm (Firm). You have recently been asked by state agency (ABC) to serve as its labor counsel. You will be the primary attorney responsible for the labor work, although other Firm associates may assist you with legal research under your supervision. You would represent ABC solely with respect to labor relations and would appear on ABC's behalf before federal and state courts and administrative agencies. You do not expect to work on behalf of ABC for more than sixty days or eight hundred hours during any three hundred sixty-five day period.

Question

 1. Would you be a "state employee" under G.L. c. 268A by accepting the ABC labor counsel offer?

 2. What limitations would G.L. c. 268A place on your activities following your acceptance of the ABC labor counsel offer?

 3. What limitations would G.L. c. 268A place on other Firm associates and partners?

Answer

1. Yes.

2. and 3. You and the associates and partners will be subject to the limitations set forth below.

Discussion

1. The provisions of G.L. c. 268A apply to any individual who performs services for a "state agency" within the meaning of G.L. c. 268A, §1(p).^[1] Although ABC is a self-supporting agency, it is nonetheless a state agency for the purposes of G.L. c. 268A. [citations omitted]. Inasmuch as you will be advising and representing the agency, your anticipated services would make you a state employee for the purposes of G.L. c. 268A. To the extent that your annual hours of ABC service are not expected to exceed eight hundred, you will be a "special state employee" within the meaning of G.L. c. 268A, §1(o).^[2] A consequence of special status is that you will be eligible for certain exemptions to G.L. c. 268A which are not available to full-time employees.^[3]

2. The two sections of G.L. c. 268A which are relevant to your situation are § 4 and, to a lesser extent, § 23. Under § 4, as applied to you as a "special state employee," you will be prohibited from representing a non-state party in relation to any particular matter^[4] in which a state agency is a party or has a direct and substantial interest if the matter is one in which you have either participated or have had official responsibility^[5] as an ABC employee. If you serve for more than sixty days in any three hundred sixty-five day period, the prohibition will apply to any matter pending in the ABC.

Examples of prohibited matters would be any lawsuit, representation proceeding, petition, or determination for which you provide advice or representation for ABC.^[6] Because you will not be performing services for the ABC for more than sixty days in any three hundred sixty-five day period, you may represent private clients in matters pending in the ABC, as long as you have not participated in or have official responsibility for the matter as counsel to ABC. This result will continue to apply as long as you do not exceed the sixty-day limit.

Two points should be made with respect to calculating your days served for the purpose of the sixty-day limit. First, if you serve for part of a day performing services under your arrangement with the ABC, you will be considered as having served for a complete day.^[7] See, EC-COI-80-31. Second, if you assign a Firm associate to perform your ABC work under your supervision, you will be considered as having served on each day in which the associate performs such services, even though you may not have performed billable services yourself on such days. The statute recognizes that special state employees whose service in a one-year period exceeds sixty days are likely to possess and exercise influence with respect to their agency's actions; G.L. c. 268A, § 4 therefore prohibits such employees from privately dealing with any matter pending in their state agency. It would frustrate the statutory policy to permit special state employees to avoid reaching the sixty-day limit by assigning their work to other employees in the law firm. Such a construction would elevate technical form over substance in a way which would undermine the statute.  Compare, EC- COI-80-31; 83-37; 83-125; 84-31.

You should also be aware that G. L. c. 268A, § 23 might become relevant to your situation at a later time. Specifically, § 23(¶ 2)(2) prohibits you from using your official position to secure an unwarranted privilege for yourself or others. Assuming that the ABC becomes unionized, and you are called upon to determine ABC bargaining strategy and particularly the level of funding to be allocated for collective bargaining, the fact that you also represent private clients seeking limited funds from the ABC may raise potential § 23 problems. Because this situation is hypothetical, and in any event not likely to occur for some time, you should renew your opinion request with the Commission should this hypothetical situation become foreseeable.

3. Based upon your current status as an associate, the conflict of interest law will not place additional restrictions on partners or associates in the Firm. Because you are not a partner. the § 5(d) restrictions do not apply to the private activities of partners with respect to your ABC responsibilities.

Further, based upon the information you have provided, the Firm associate to whom you may occasionally assign ABC work would not be considered a "state employee" for the purposes of G. L. c. 268A. However, should the assignment arrangement become more regular and result in the ABC's expectation that the particular associate will assist you in performing ABC's labor work, then the associate would become subject to G.L. c. 268A. Compare EC-COI-83-165; 80-84.

^[1] G.L. c. 268A, § 1(p). "state agency," any department of a state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town.

^[2] G.L. c. 268A, § 1(o), "special state employee," a state employee:

1. Who is performing services or holding an office, position, employment or membership for which no compensation is provided, or  
2. Who is not an elected official and
3. Occupies a position which, by its classification in the state agency involved or by the terms of the contract or conditions of employment, permits personal or private employment during normal working hours, provided that disclosure of such classification or permission is filed in writing with the state ethics commission prior to the commencement of any personal or private employment, or
4. In fact, does not earn compensation as a state employee for an aggregate of more than eight hundred hours during the preceding three hundred and sixty-five days. For this purpose, compensation by the day shall be considered equivalent to compensation for seven hours per day. A special state employee shall be in such a status on days for which he is not compensated as well as on days on which he earns compensation.

^[3] You state that you are in the process of having your ABC appointing official classify your position as that of a "special state employee" with appropriate written notice to the Commission. See, G.L. c. 268A, § 1(o)(2)(a). This classification would confirm your special employee status if your annual hours were to exceed eight hundred.

^[4] G.L. c. 268A, § 1(k). "particular matter," any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and properties.

^[5] G.L. c. 268A, § 1(i), "official responsibility," the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action.

^[6] It is unnecessary to determine whether you would be deemed to also have official responsibility for the particular matters in which you participate at ABC, because these matters are already subject to the § 4 prohibition.

^[7] You should keep accurate time records of your ABC services.