Opinion  EC-COI-84-44

Date:	03/27/1984
Organization:	State Ethics Commission

An attorney for a town and a municipal agency may also be a candidate for and serve as a member of the General Court, subject to certain limitations. As a candidate, §23 would prohibit the exploitation of his public municipal positions in connection with his campaign. As a member of the General Court, he would have to abide by the §4 and §6 legislator provisions as well as the §23 standards of conduct.

Facts

You are an attorney and currently serve as Assistant Town Counsel for the Town of ABC (Town) and as counsel to municipal agency (DEF). You are considering becoming a candidate for the state House of Representatives and, if elected, would like to maintain these two positions.

Question

1: May you run for the General Court while employed as Counsel both for the Town and DEF?

2: May you continue to hold these two counsel positions if elected to the General Court?

Answer

1: Yes

2: Yes

Discussion

I: As a Candidate

       As Town Counsel for the Town and counsel to DEF, you are a municipal employee as defined in the state conflict of interest law, G. L. c. 268A, §1 et seq., and, as a result, are subject to certain provisions of that law. The conflict law does not specifically regulate the activities of a municipal employee who is a candidate for public office, nor do the terms of that statute prohibit such candidacy. Certain provisions of section 23 of G. L. c. 268A, however, which provides standards of conduct applicable to all municipal employees, are relevant during the election campaign, State laws regulating political campaigns are enforced by other state agencies. E.g. G. L. c. 55; Office of Campaign and Political Finance. Section 23 prohibits a municipal employee from using or attempting to use his official position to secure an unwarranted privilege or exemption for himself. It also proscribes conduct which gives reasonable basis for the impression that anyone can improperly influence or unduly enjoy his favor in the performance of his official duties. These standards prohibit the exploitation of your public position in connection with a political campaign. For example, you may not use your authority as a municipal employee to enlist support, either financial or otherwise, for your candidacy. You may not use public employees, office space, telephones or other resources for campaign related purposes. Finally, §23 prohibits the improper disclosure of confidential information,^1/ acquired by a municipal employee in the course of his official duties, and the use of such information to further his personal interests. You should not utilize any such information in your campaign effort.

II. As a Member of the General Court

As a member of the General court, you will be a state employee as defined in the conflict of interest law.

       Section 4 of G. L. c. 268A prohibits a state employee from receiving compensation from, or acting as an agent or attorney for, someone other than the Commonwealth or a state agency in relation to any particular matter in which the Commonwealth or a state agency is a party or has a direct and substantial interest. However, members of the General Court are exempt from the prohibitions of these sections and may, therefore, accept compensation from or act as agent for someone other than the Commonwealth, subject to the following limitations. Under paragraph 5 of §4, "no member of the General Court shall personally appear for any compensation other than his legislative salary before any state agency, unless:

1. the particular matter before the state agency is ministerial in nature; or
2. the appearance is before a court of the Commonwealth; or
3. the appearance is in a quasi-judicial proceeding." ^2/

You should, therefore, make certain that any proceeding in which you appear in your capacity as counsel to the Town or DEF complies with these limitations.^3/

       Section 6 prohibits you from participating^4/ as a state employee in a particular matter in which you, your immediate family, or a business organization in which you are serving as an employee has a financial interest. A municipality has been defined as a business organization for the purposes of this section. See Attorney General Conflict Opinion No. 613, EC-COI-81-56. "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. (emphasis supplied). Accordingly, you will be allowed to participate fully as a legislator in the consideration of and voting on general legislation and those types of special laws specified in the definition, even if you or the municipalities by which you are employed have a financial interest in their passage. If, however, your duties as a legislator require you to act in a way that would affect your financial interest in a manner greater that its effect on the general public, §6A requires that you file a written disclosure with the State Ethics Commission describing the action required and the nature of your financial interest. See EC-COI-80-10; 81-81.

Since you intend to maintain your municipal positions, you will continue to be subject to those portions of the conflict law covering municipal employees.

       Under §17, you may not receive compensation from, or act as agent or attorney for, anyone other than the towns for which you work in relation to any particular matter in which these towns have a direct and substantial interest. As a state employee, you would be receiving compensation from someone other than these towns. However, since general legislation and certain types of special legislation applicable to municipalities are excluded from the definition of particular matter, and you are already prohibited from participating in other special legislation in which the towns have a financial interest under the prohibitions of §6, this section would not place further limitations on you in the course of your duties as a legislator.

       Finally, you should keep in mind the aforementioned provisions of §23 in both your municipal and state positions. Improper use of your power as a legislator, for example, to benefit the towns employing you may place you in violation of §23, as well as §6. See Craven v. State Ethics Commission, 390 Mass. 191 (1983); EC-COI-80-110

End of Decision

DATE AUTHORIZED:                         March 27, 1984

^1/ These materials are defined as "materials or data within the exemptions to the definition of public records as defined by [G. L. c. 4, §7]." G. L. c. 268A, §23 ¶3(2).

^2/ Ministerial functions "include, but are not limited to, the filing or amendment of: tax returns, applications for permits and licenses, incorporation papers, or other documents.” A proceeding is considered quasi-judicial if: “(1) the action of the state agency is adjudicatory in nature; and (2) the action of the state agency is appealable to the courts; and (3) both sides are entitled to representation by counsel and such counsel is neither the attorney general nor the counsel for the state agency conducting the proceeding." See c. 268A, §4, ¶5.

^3/ The twelfth paragraph of §4 contains an exemption which permits a state employee to hold elective or appointive office in a city, town or district as long as the employee does not vote or act on any matter within the purview of the agency by which he is employed or over which he has official responsibility. That amendment left unchanged the application of §4 to members of the General Court. Compare, EC-COI-80-72 (re: application of exemption to special state employees).

^4/ "Participate" means "to participate in agency action or a particular matter 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).