Opinion  EC-COI-84-24

Date:	02/21/1984
Organization:	State Ethics Commission

A town moderator and chairman of a town by-law committee is a municipal employee. Because he is an associate with a private law firm, rather than a partner, the firm is not prohibited from representing private clients in matters involving the town.

Facts

You are the elected moderator of a Town (Town). That position has been classified by the Board of Selectmen as a special municipal employee position. Your duties as moderator include presiding over town meetings, appointing members to the finance committee and regional vocational school committee and making such other appointments as the town meeting may from time to time authorize. You are also the Chairman of the committee to revise and update the town by-laws. That position has also been classified as that of a special municipal employee by the Board of Selectmen. The committee's duties are to present a revised set of general by-laws to the town meeting, at which time the committee's function will end.

You formerly worked in an office which has been retained on a regular basis by the municipality to render legal services. The town does not appoint the office nor any individual attorney as "Town Counsel," but has retained the office to perform services on a regular basis as "legal advisors" to the town. You have resigned from that office to become associated with another law firm (Firm) in the same geographical area. You are not a partner in the Firm. Prior to your employment with the Firm, it was retained by a property owner whose land abutted the town sanitary land fill in connection with a potential claim. Pursuant to correspondence with the Firm, the town Board of Health had a meeting with your former law office at which you were present. No action was taken at that time by the Board of Health.

Question

^1/ Is the Firm permitted to:

1. handle cases involving the municipality in which you had previously participated;
2. handle cases involving the municipality in which your former employer had been involved, but in which you had no direct participation;
3. accept new cases involving the municipality; or
4. continue its participation in those cases involving the municipality which arose prior to your association with it?

Answer

Because you are an associate with the Firm rather than a partner, the conflict of interest law, G. L. c. 268A, will not prohibit the activities of the Firm with respect to the above questions.

Discussion

       As Town Moderator and Chairman of the committee to receive and update the town by-laws, you are currently a municipal employee. EC-COI-82-96. Section 18 (d) addresses the applicability of the law to the partners of present municipal employees. Under this section, the partner of a municipal employee is prohibited from acting as the agent or attorney for anyone other than the municipality in connection with any particular matter^2/ in which the same municipality is a party or has a direct and substantial interest and in which the municipal employee participates^3/ or has participated as a municipal employee or which is the subject of his official responsibility.^4/ Since you indicate that you are not a partner in the Firm, this section will not restrict the activities of the Firm based on your employment status.^5/ However, the Commission does not limit the term "partner" to those who enter into formal partnership agreements . "The substance of the relationship is what counts…[and] if a group creates the public appearance of a partnership (for example, by using joint stationery, business cards and business listings), they will be treated as partners even though they may not fact share profits”. EC-COI-82-68; 80-43. Therefore, your actions must be consistent with these guidelines in order to avoid the provisions of §18 (d). You should also be aware of the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, Rule 3:07 of the Rules of Supreme Judicial Court which may govern the activity of the Firm as proposed in the above questions.

End of Decision

DATE AUTHORIZED:                               February 21, 1984

^1/ Because your opinion request is limited solely to the potential liability of the Firm, this opinion only addresses the law as it would apply to the Firm and does not analyze the applicability of the law to you as an individual.

^2/ “Particular matter,” is defined 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 G. L. c. 268A, §1 (k)

^3/ "Participate" is defined as participate in agency action or in a particular matter personally or substantially as a state, county or municipal employee through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G. L. c. 268A, §1 (j).

^4/ "Official responsibility" is defined as 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. G. L. c. 268A, §1(i).

^5/ In your position with your previous employer, you were a municipal employee with respect to those municipal matters on which you personally worked. Consequently, if you were perceived as a partner in the Firm, §18 (d) would place restrictions on the Firm's activities in connection with particular matters in which you participated while working for your previous employer. Further, the Firm would also have to adhere to the provisions of §18 (d) with respect to matters in which you participate or have participated in your present municipal positions.