Opinion  EC-COI-84-18

Date:	02/21/1984
Organization:	State Ethics Commission
Location:	Boston, MA

Facts

You are a member of the Special Commission on Hazardous Waste Liability (Special Commission). St. 1983, c. 7, s.13.  The seventeen member Special Commission is comprised of members of the General Court, executive branch members, and other persons appointed by the governor.^[1] The Special Commission was established to study the adequacy of common law and statutory remedies available both to the Commonwealth to recover certain costs related to the treatment and removal of hazardous materials, and to persons who are harmed by the release of hazardous materials.  Among the subjects which the Special Commission is directed to evaluate is the scope of liability under existing law and the consequences, particularly with respect to obtaining insurance.  The Special Commission has been meeting on a regular basis since November 1983 and is planning to schedule public hearings.  Following the completion of its investigation, the Special Commission will file a report to the General Court indicating the results of its investigation, its recommendations and including drafts of legislation to carry out the recommendations.

You are an officer of ABC, a company which has an interest in a DEF matter which the Special Commission plans to review.

Questions

1. As a member of the Special Commission, are you a state employee for the purposes of G.L. c. 268A?

2. Assuming you are a state employee, what limitations does G.L. c. 268A place on your activities?
 

Answers

1. Yes.

2. You are subject to the limitations set forth below.

 

Discussion

1. Jurisdiction

Initially, the Commission advises you that the Special Commission is a "state agency" for the purposes of G.L. c. 268A^[2] and, as a member of the Special Commission, you are therefore a state employee.^[3]  The definition of state agency specifically includes independent state commissions such as the Special Commission.  Further, in view of the statutory mandate for the
creation of the Special Commission, the formality and specificity of its responsibilities and the requirement that it prepare a report and recommendations to the General Court, the Special Commission's entity status is distinguishable from the temporary, ad hoc advisory groups which the Commission has regarded as outside of G.L. c. 268A. Compare, EC-COI-82-157, 82-139, 82-81.  Moreover, prior opinions of the Attorney General have concluded that other special commissions with enabling statutes similar to the Special Commissions are state agencies for the purposes of G.L. c. 268A. See, Attorney General Conflict Opinion Nos. 633,843.

2. Restrictions under G.L. c. 268A

As a state employee, there are three sections of G.L. c. 268A which are relevant to your situation.  In view of your unpaid status as a Special Commission member, you are a "special state employee" within the meaning of G.L. c. 268A, s.1(o) and are subject to certain exemptions which are not otherwise available to full-time state employees.

a) Section 4

This section prohibits you from receiving compensation from or acting as the agent or attorney for any non-state party in relation to any particular matter^[4] in which the commonwealth or a state agency is a party or has a direct and substantial interest and which

          1. you have participated in as a state employee; or

          2. you have or have had official responsibility for during the prior one-year period; or

          3. is pending in your state agency.^[5]
 

Examples of particular matters which might come into play are findings and determinations of the Special Commission as well as the submission of special, as opposed to general, legislation.^[6]  

Under s.4 you would be prohibited from acting as the agent or attorney for ABC in relation to these matters before both the Special Commission and the General Court.

b) Section 6

This section prohibits you from participating as a Special Commission member in any particular matter in which, in relevant part, either you or ABC has a financial interest.  For example, if the Special Commission were to consider the submission of special legislation addressing certain issues in the DEF matter, or were to consider making findings or determinations concerning the
performance of ABC, you would be required by s.6 to refrain from participating in those matters and to submit to the governor and Commission a statement disclosing the nature and circumstances of the particular matter, along with a description of your financial interest.

On the other hand, not all issues which would come before the Special Commission would constitute "particular matters" under s.1(k).  For example, the holding of a public hearing, the study of the scope of liability under existing law, as well as the submission of general legislation would not be particular matters which would require your disqualification from participation as a special commission member.

c) Section 23

This section establishes standards of conduct for all state employees and would apply to you as a Special Commission member.  Inasmuch as you are the officer of a company which could be financially affected by the outcome of the Special Commission's work, you should be particularly mindful of the restrictions against your improperly disclosing confidential information which you have acquired in your Special Commission position.
 

[1] ldentifying footnote deleted.

[2] G.L. c. 268A. s.1(p) defines state agency as "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.

[3] G.L. c. 268A, s.1(q) defines state employee, in relevant part, as "a person performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent or consultant basis, including members of the general court and executive council."  

[4] G.L. c. 268A, s.1(k) defines particular matter as "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 property."

[5] This third condition applies only if you work as a state employee for more than sixty days during a one-year period.

[6] The feature which distinguishes special from general legislation is the particularity of the scope and purposes of the act's provisions.  See, Sands, 2 Sutherland Statutory Construction s.40.01 et seq. (4th ed.. 1973).  For example, enabling legislation providing for a new statutory remedy on a state-wide basis would be general, as opposed to special legislation, since it would apply to all cities and towns.  See, Town of Arlington v. Board of Conciliation and Arbitration, 370 Mass. 769, 774(1976).  Similarly, enabling legislation containing a local acceptance provision would not constitute special legislation since the referendum feature of the legislation would avoid the mandatory application of the act to a particular city or town. See, EC-COI-82-153.  On the other hand, legislation which practically affects a single community is regarded as special legislation, even where the act is drafted in more general terms, see, Belin v. Secretary of the Commonwealth,362 Mass. 530,534-535 (1972) or where it is inserted as a condition restricting the receipt of local aid funds by a particular community.  Mayor of Boston v. Treasurer and Receiver General, Mass. Adv. Sh. (1981)2351,2353.  Accordingly, you should identify each piece of legislation considered by the Special Commission and refrain from or acting as the agent or attorney for ABC with respect to the enactment of special legislation.  You may contact the Commission should you need further assistance in ascertaining whether a particular bill is general or special under s.1(k).

 

End Of Decision