Opinion  EC-COI-84-38

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

The part-time executive director of a regional housing authority, a special county employee, who is an attorney is advised that §§ 11 and 23(c) of the conflict of interest law restrict his ability to represent a municipality in a claim against the regional housing authority as well as representing a municipality or property owner in matters in which the county agency has a direct and substantial interest and in which he participated, or which is or within one year was within his official responsibility or which is pending in the county agency. The county employee is also advised on the application of §§ 13, 14 and 23(b)(2) and (b)(3) on his ability to provide legal services outside of his county employment.

Facts

You are currently employed part-time by the ABC Regional Housing Authority (ABC). In that capacity, you do not perform legal services, although you have maintained your private practice as an attorney on the side. With regards to the housing project developed for the Town Housing Authority (Town), your involvement consisted of writing the grant for the Town and ABC, working with the architects on building designs and supervising the construction. Upon the completion of some of the units, Town took over the management. Throughout this process, ABC had an attorney to perform any necessary legal work.

The Town, however, has hired you as an attorney in two instances in the past two years: to be the attorney for a specific project and to handle litigation related to a modernization grant, neither of which were obtained through your employment with ABC. In both cases the Executive Office of Communities and Development [EOCD] approved your hiring. However, EOCD recently disapproved your proposed contract with Town to provide on-going legal services on a part-time basis.

Question

1. Was EOCD correct in disapproving your contract on conflict of interest grounds?

2. Does G.L. c. 268A permit you, while serving as Executive Director of ABC, to

• a) have contractual relationships with the town or a property owner if the town receives a block grant from EOCD to provide homeowners with money to upgrade their properties?
• b) represent individuals before town boards or agencies?

Answer

1. Yes^[1]

2. Yes, subject to the restrictions set out below.

Discussion

Status as a County Employee

As an employee of ABC, you hold an office in a county agency under G.L. c. 268A, § 1(c)^[2] and are therefore a county employee within the meaning of G.L. c. 268A, § 1(d).^[3] ABC is a county agency because the County, rather than the state or the member towns, appears to be the "level of government to be served by the agency in question."^[4] Buss, the Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 310 (1965); EC-COI-83-63. Because your position with ABC is part-time, you are a special county employee within the meaning of G.L. c. 268A, § 1(m), and therefore subject to certain less restrictive prohibitions of G.L. c. 268A.

1. EOCD Disapproval of Contract

Section 11 prohibits a county employee from acting as agent or attorney for, or receiving compensation from a non-county party in relation to a particular matter^[5] in which the County or a county agency is a party or has a direct and substantial interest. In light of your status as a special county employee, these prohibitions apply to you only in relation to a particular matter (a) in which you have at any time participated as a county employee, or (b) which is or within one year has been a subject of your official responsibility, or (c) which is pending in the county agency in which you are serving. If Town did bring a claim against ABC, § 11 would prohibit you from acting as attorney for, or receiving compensation from Town in relation to the suit since the suit would be a particular matter pending in your county agency (ABC). Therefore, to the extent that EOCD's decision was based on that potential conflict, and your disqualification in that event, the decision was correct.

Moreover, § 23 paragraph 2(1) prohibits you from accepting other employment which will impair your independence of judgment in the exercise of your official duties. The Commission finds that there could be situations short of an actual lawsuit where your judgment as an employee of ABC could be influenced, knowingly or unknowingly, because of your position as a Town attorney, and vice versa. Accordingly, EOCD's ruling was correct under the conflict of interest law as enunciated in G.L. c. 268A.^[6]

2. G.L. c. 268A Limitations on Additional Activities

a. Assisting Outsiders

As discussed above, § 11 prohibits you from acting as agent or attorney for, or receiving compensation from a non-county party in relation to a particular matter in which the County or a county agency is a party or has a direct and substantial interest. While housing subsidy applications, grants and decisions are particular matters of direct and substantial interest to the state in view of the state's regulatory role in this area (see, e.g., St. 1966 c. 707), that rationale cannot be applied to counties since counties do not play a regulatory role in the grant process. Compare EC-COI-81-168. Section 11 would therefore not prohibit you from contracting with the town or a property owner who was a recipient of monies from an EOCD town block grant. Likewise, § 11 would only limit your representation of individuals before town boards or agencies if the county had a direct and substantial interest in the matter and it was a particular matter (a) in which you had participated as an ABC employee, or (b) which is or within one year has been a subject of your official responsibility, or (c) which is pending in ABC.

b. Participation as a County Official

Under § 13, you may not participate^[7] as an employee of ABC in any particular matter in which either (1) you, or (2) a member of your immediate family, or (3) a business organization in which you are serving as officer, director, trustee, partner or employee, or any person or organization with which you have an arrangement concerning future employment has a financial interest. Should such a matter come before you, you should immediately refrain from participation in that matter and should notify both your appointing official and the State Ethics Commission in writing of the nature and circumstances of the matter and make full disclosure of the financial interest. Your appointing official would then either:

1. assign the particular matter to another employee,
2. assume responsibility for the particular matter, or
3. make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of your services, in which case you would not violate § 13 by participating in the matter. Copies of such a written determination would be forwarded to you and filed with the State Ethics Commission by the person who made the determination.

c. Financial Interest in Other County Contracts

Under § 14, you may not have a financial interest in a second contract made by the County or an agency of the County. For instance, you would be prohibited under this section from contracting with any other county agency to perform legal services while you remain an employee of ABC.

d. Standards of Conduct

As a county employee, you are also subject to the standards of conduct set out in G.L. c. 268A, § 23. Specifically, you are prohibited from:

1. accepting other employment which will impair your independence of judgment in the exercise of your official duties;
2. using or attempting to use your official position to secure unwarranted privileges or exemptions for yourself; or
3. 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. G.L. c. 268A, § 23 paragraph 2.

You should keep these standards in mind when entering into contractual relationships with a town or a property owner or representing an individual before a town board or agency. These guidelines are necessarily general because they are based on hypotheticals. To determine whether a specific situation constitutes prohibited conduct or qualifies for a statutory exemption, you may renew your opinion request at a later time.

End Of Decision

^[1] This advisory opinion only addresses issues posed in connection with the conflict of interest law, G.L. c. 268A. Analysis of the correctness of EOCD's decision under other laws or statutes is beyond the Commission's jurisdiction.

^[2] "County agency." any department or office of county government and any division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder, G.L. c. 268A, § 1(c).

^[3] "County employee," a person performing services for or holding an office, position, employment, or membership in a county 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. G.L. c. 268A, § 1(d).

^[4] Compare municipal housing authorities, which service individual towns or cities and are by statute [G.L. c. 121B, § 7] treated as municipal agencies for the purposes of G.L. c. 268A. ABC's enabling legislation, St. 1976, c. 419, does not specify as to whether the county or municipal sections of G.L. c. 268A should apply to it. However, the commission concludes that sufficient indicia are present to conclude that ABC is a county agency, namely: countywide service, County Commissioner involvement in the appointment/removal of Authority members, and its ability to receive funding from the County Treasurer to defray operating expenses.

^[5] For the purposes of G.L. c. 268A, "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. . . G.L. c. 268A, § 1(k),

^[6] It should be noted that even in closer cases, the Commission customarily defers to such an agency ruling, one which gives guidance to its employees and is consistent with the principles and aims of § 23. See EC-COI-80-51.

^[7] "Participate," 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, G.L. c. 268A, § (j).