Opinion  EC-COI-84-40

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

A member of the State Ethics Commission may also serve as Corporation Counsel for the City of Boston subject to the restrictions of §§ 4, 6, 17 and 23(c) of the conflict of interest law.

Facts

You are a member of the State Ethics Commission and are about to be sworn in as corporation counsel for the City of Boston (City). In the latter capacity you will be the head of the City law
department. Your responsibilities will include furnishing opinions of law, instituting litigation on behalf of the City, appearing as counsel in all actions involving the rights or interests of the City, and defending City officers in suits relative to their official actions and duties. CBC Ord. Title 5 § 450.  As a member of the Commission, your official responsibilities include the enforcement of G.L. c. 268A, the conflict of interest law, which is applicable to municipal employees, as well as to employees of the commonwealth and counties. G.L. c. 268B, § 4; G.L. c. 268A, §§ 17-21. On previous occasions, Commission members have reviewed the practice of City employees expediting the issuance of municipal lien certificates for an additional private fee, In the Matter of the Collector-Treasurers Office of the City of Boston, 1981 Ethics Commission 35; the Mayor's conduct regarding a birthday party planned for his wife, In the Matter of Kevin H. White, 1982 Ethics Commission 80; the misuse by a City employee of her official position to secure an unwarranted privilege for herself, In the Matter of Elizabeth Buckley, 1983 Ethics Commission and have issued formal advisory opinions to City officials, EC-COI-83-174.

Question

Does G.L. c. 268A permit you to continue your membership on the Commission while you serve as City corporation counsel?

Answer

Yes, subject to the conditions set forth below.

Discussion

"The Commission is designed to be bipartisan. Because of its sensitive position, its members must avoid even the appearance of a conflict of interest . . . ." Model State Conflict of Interest and Financial Disclosure Law, National Municipal League, Commentary p. 6. Commission members are charged with the enforcement of G.L. c. 268A and are regularly called upon to make decisions which regulate the conduct of public employees, and which have a substantial impact on the finances and reputation of public employees. The credibility of these decisions requires that Commission members take steps to avoid creating the appearance of impropriety in their public and private activities relating to the Commission's work. These concerns are reflected in the Commission's enabling statute which prohibits Commission members from political activities in which other state employees may participate. G.L. c. 268B, § 2(f). Commission members must also avoid creating the risk of unfair decision making due to bias or prejudgment. Craven v. State Ethics Commission, 390 Mass. 191, 199 (1983). Because the Commission regulates the activities of members of the judiciary under G.L. c. 268A, the standards of integrity applicable to Commission members should be comparable to the Canons of Judicial Conduct. Commission members, like judges, should avoid impropriety and the appearance of impropriety in their activities. See, Code of Judicial Conduct, Canon 2 S.J.C. Rule 3:09. On the other hand, unlike judges, membership on the Commission is not a full-time job, and its members are free to pursue, within certain guidelines, a livelihood or calling. This opinion is intended to provide you with guidelines which will address the concerns which are inevitably raised because of the overlap of your responsibilities as Commission member and City Corporation Counsel.

1. Jurisdiction

As a member of the Commission, you are a "state employee" for the purposes of G. L. c. 268A. See, G.L. c. 268B, § 2. Because you do not earn compensation as a state employee for an aggregate of more than eight hundred hours annually, you are a "special state employee" within the meaning of G.L. c. 268A, § 1(o) and are therefore subject to certain less restrictive provisions of G.L. c. 268A in addition to those which you share with other state employees. As City Corporation Counsel, you are a municipal employee within the meaning of G.L. c. 268A, § 1(g).

2. Restriction on Your Activities as City Corporation Counsel

Section 4 prohibits you from receiving compensation from or acting as agent or attorney for the City in relation to any "particular matter"^[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you have either participated^[2] as a Commission member or have had official responsibility^[3] within the prior year as a Commission member.^[4]

Examples of particular matters which fall within your official responsibility as a commission member are the initiation of a preliminary inquiry alleging a violation of G.L. c. 268A, the determination of whether the inquiry indicates reasonable cause to believe that a violation of G.L. c. 268A has occurred, the initiation of a full investigation and appropriate proceedings to determine whether there has been a violation, the determination, following a hearing, of whether there has been a violation, the establishment of sanctions for a violation, litigation strategy with respect to the court enforcement of such determinations, and decisions related to the initiation of civil enforcement actions pursuant to G.L. c. 268A, §§ 9, 15 and 21. Compliance with § 4 requires that you refrain from acting in your City corporation counsel capacity as the agent or attorney for the City or any City employee with respect to any of the aforementioned particular matters which fall within your official Commission responsibility.^[5] Section 4 would not prohibit you from issuing, at the request of City employees, advisory opinions over the provisions of G. L. c. 268A, since the request would not be within the Commission's responsibility unless such a request were filed with the Commission or relates to a matter pending before the Commission. Compare, G.L. c. 268A, § 22; G.L. c. 268B, § 3(g).^[6]

3. Limitations on Your Activities as a Commission Member

a) Participation in Matters Involving Either the City or Employees of The City  

Three overlapping sections of G.L. c. 268A are relevant. Section 6 prohibits your participation as a Commission member in any particular matter in which, in relevant part, the City has a financial interest. Section 17(a) prohibits your receipt of compensation as a Commission member in relation to any matter in which the City or a City agency is either a party or has a direct and substantial interest. Section 23 ¶ 2(3) prohibits you from, 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 Commission duties, or that you are unduly affected by the kinship, rank, position or influence of any party or person. Issues under these sections will inevitably arise if you are called upon to participate as a Commission member in any matter involving either the City or employees of the City, whether financial or not. To avoid violating these provisions, you must refrain from participating in any Commission action, discussion or deliberation dealing with any matter involving either the City or an employee of the City and must leave the room when the matter is being discussed. See, Graham v. McGrail, 370 Mass. 133, 138 (1976).^[7]

b) Access to Confidential Information Section 23 paragraph 3 prohibits you from

1. accepting employment or engaging in any business or professional activity which will require you to disclose confidential information which you have gained by reason of your official position or authority, and
2. improperly disclosing materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and which were acquired by you in the course of your official duties or using such information to further your personal interests.

These provisions, which are largely self-explanatory, come into play when state employees misuse confidential information to which they have access as state employees. In view of your obligation as City Corporation Counsel to represent the City zealously within the bounds of law, Code of Professional Responsibility, Canon 7, the mere access to confidential information relating to City cases, even absent your participation as a Commission member, may place you in an ambiguous position with respect to your competing loyalties. Therefore, appropriate safeguards must be established to minimize your access as a Commission member to such confidential formation. Accordingly, you may not

1. examine the Commission's files or records pertaining to City matters or
2. discuss the merits or the status of the City matters formally or informally with any member of the Commission, with any  current member of the staff, or with any former member of the staff who, while employed by the Commission, had  access to confidential information about the matter.  

To facilitate these requirements during the distribution of materials to be considered at a Commission meeting, the Commission staff will be directed to identify and remove from distribution to you all materials relating to City matters. ^[8]
 

End Of Decision 

^[1] 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).

^[2] For the purposes of G.L. c. 268A, "participate" is defined as participate in agency action or in a particular matter personally and substantially as a state employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, § 1(j).

^[3] For the purposes of G.L. c. 268A, "official responsibility," is 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.

^[4] Because you do not serve as a commission member for more than sixty days annually, you are not subject to § 4 with respect to all matters "pending in the state agency in which you are serving." G.L. c. 268A, § 4 paragraph 7(c). However, for practical purposes your official responsibility as Commission member would be coextensive with all matters pending in the agency.

^[5] As a special state employee, the provisions of the "municipal exemption" to § 4 are not applicable to you. See, EC-COI-80-72.

^[6] For example, if a City employee who is under investigation by the Commission for alleged violations of G. L. c. 268A were to request from you as Corporation Counsel an advisory opinion over whether the conduct under investigation would violate G.L. c. 268A, you would be prohibited from participating in the issuance of the opinion. However, since opinions of the City Corporation Counsel, unlike Commission advisory opinions, are not a legal defense in a criminal action brought under G.L. c. 268A and are not binding on the Commission, this prohibition would not apply merely because a matter about which you opine as Corporation Counsel may come before the Commission in the future. Compare, G.L. c. 268A, § 22; G.L. c. 268B, § 3(g).

^[7] If the matter affects the financial interest of the City, you must comply with the disclosure provisions of § 6 as well.

^[8] Your opinion request also raises the issue of whether your City position would constitute the acceptance of "other employment which will impair [your] independence of judgment in the exercise of [your] official duties" in violation of G.L. c. 268A, § 23 ¶ 2(1). In view of the relatively few occasions in which City matters are pending before the Commission, and the safeguards which have been employed to avoid your having to exercise judgment as a Commission member in City cases, your acceptance of the City position would not violate § 23 ¶ 2(1). However, should the number of City matters before the Commission substantially increase, then this conclusion would be subject to reexamination. See, EC-COI-81-133. Additionally, the mere fact that you function in a key management position with the City would not inherently create a bias or otherwise disqualify you from objectively carrying out your responsibilities as a Commission member.