Opinion

Opinion  EC-COI-84-30

Date: 03/12/1984
Organization: State Ethics Commission

A law firm associate is subject to §§ 4 and 23 by serving as a legal consultant to the Department of Administration and Finance and representing the interests of the Commonwealth in matters before a state agency.  As a special state employee, the associate can represent law firm clients before the state agency as long as the Department of Administration and Finance is not an intervenor in the matter.

 

Table of Contents

Facts

You are an associate in a law firm (Firm). The Firm represents clients in proceedings before a state agency (ABC), and you participate in those proceedings on behalf of the Firm.

You also serve as a Special Assistant Attorney General representing the interests of the Commonwealth in two matters pending in ABC. None of the Firm's private clients are involved in these two matters. A Division (Division) of the Office of the Attorney General is involved in these matters as an intervenor on behalf of public customers pursuant to (citation omitted). Your representation of the Commonwealth could last more than sixty working days.

While serving in your state capacity, you would like to continue to represent clients in other matters before ABC in which the Division is an intervenor. However, you recognize that § 4 of G.L. c. 268A, the conflict of interest law, would prohibit you from representing clients before ABC where the Division is an intervenor should you work as a Special Assistant Attorney General for more than sixty days. See, EC-COI-84-20; 82-50. Therefore, you have proposed leaving the Office of the Attorney General and acting as a legal consultant to the Department of Administration and Finance (A&F) and representing the Commonwealth in proceedings before ABC.[1]

The people that assist you in your role as a Special Assistant Attorney General in developing the cases are A&F personnel. At the present time, A&F develops the positions and makes policy decisions that you present before ABC in your representation of the Commonwealth. Your salary would be paid by A&F.

Question

Will G.L. c. 268A allow you to continue your representation of private clients in ABC proceedings where the Division has intervened if your employer is A&F and not the Office of the Attorney General?

Answer

Yes, subject to the conditions discussed below.

Discussion

If you become a consultant to A&F, you will be a "special state employee," and the provisions of § 4 will apply to you. Section 4(a) prohibits a state employee from receiving compensation from anyone other than the commonwealth or a state agency in relation to any particular matter[2] in which the commonwealth or a state agency is a party or has a direct and substantial interest. As a "special state employee" the provisions of § 4 apply less restrictively to you. A special state employee is subject to the provisions of § 4 only in relation to a particular matter in which he has at any time participated[3] as a state employee, or which is or within one year has been the subject of his official responsibility[4] or which is pending in his agency if he serves as a state employee more than sixty days during any one year period. Under the provisions of § 4(a), if you work for more than sixty days as a consultant to A&F, you may still represent private clients before ABC where the division intervenes because the matters will not be pending[5] in your agency, A&F. However, under these circumstances, you may not represent private clients before ABC in matters in which A&F is an intervenor.

As a state employee, you are also subject to the standards of conduct contained in § 23. The relevant provisions of § 23 prohibits you from accepting other employment which will impair your independence of judgment in the exercise of your official duties [§ 23 ¶ 2(1)], and by your conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official duties, or that you are unduly affected by the kinship, rank, position or influence of any party or person. [§ 23 ¶ 2(3)].

These provisions will prohibit you from working for A&F on any matter in which a client of your Firm will be involved. This restriction includes not only clients represented by your Firm in the same matter before ABC; it also includes clients which, although represented by a different law firm in the matter before you, have retained or deal with your Firm on other matters on a regular basis. Because of your relationship to your Firm, it may appear that you were favoring that client if you were to act in your official capacity in such an instance. Your ability to render independent advice to the state would be impaired where you were also dealing with clients of the Firm. EC-COI-83-176. If your state job required you to maintain a position adverse to a client of the Firm, you would run the risk of alienating a source of private income in the performance of your official duties and thereby be faced with a conflict between your public and private interests.

 

End Of Decision

[1] This opinion is limited to the applicability of G.L. c. 268A to the situation you have proposed and does not address appropriateness of this activity from the perspectives of the state agencies involved.

[2] G.L. c. 268A, § 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.

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

[4] G.L. c. 268A, § 1(i) defines "official responsibility" 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.

[5] Because of the control exercised by A&F over ABC's budget, there is a threshold question of whether matters pending in ABC are also pending in A&F for the purposes of G.L. c. 268A, In its prior advisory opinions, the Commission has reviewed the amount of control one agency has over the other and whether one agency is within the department or secretariat of the other to determine if there is "operational independence" between the agencies. Cf. EC-COI-83-103; 82-164; 82-50. In the instant case, ABC is not in the same department or secretariat as A&F, and A&F does not control or monitor the substantive work of ABC. On this basis, the Commission finds that A&F's control over ABC's budgetary process is not substantial enough to make the two agencies operationally dependent. Therefore, matters pending in ABC will not automatically be considered pending in A&F. See EC-COI-83-66; 81-2; 80-66.

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