Opinion  EC-COI-84-48

Date:	04/17/1984
Organization:	State Ethics Commission

An attorney in private practice is advised that § 18(d) of the conflict of interest law would prohibit his law partner from continuing to represent a client in a lawsuit against the town should the attorney be elected to the board of selectmen.

 

Facts

You are a private attorney and are a candidate for the office of selectman in the Town of ABC (Town), a town whose population exceeds five thousand. Your law partner currently represents a plaintiff in a lawsuit against the Town alleging that the Town improperly refused to grant a permit. Following a judgment in Superior Court in favor of the Town, the plaintiff has filed a notice of appeal in the Appeals Court, and your partner will be representing the plaintiff in the appeal. The by-laws of the Town authorize the board of selectmen to settle or defend any lawsuits brought against the Town. Pursuant to these by-laws, the board of selectmen may consult with its attorney over the lawsuit and discuss litigation strategy, settlement strategy and costs.

Question

Assuming that you are elected as a selectman, what limitations would G.L. c. 268A place on your partner with respect to the lawsuit?

Answer

Upon the assumption of office as selectman, your partner will be prohibited from continuing his representation of the plaintiff in the lawsuit.

 

Discussion

Following your election as a member of the board of selectmen, you will be a "municipal employee" for the purposes of G.L. c. 268A. See, G.L. c. 268A, § 1(g); District Attorney for the Hampden District v. Grucci, 1981 Mass. Adv. Sh. 2125, 2128. Status as a municipal employee will result in restrictions on the activities of both you and your law partner. In particular, under G.L. c. 268A, § 18(d), a partner of a municipal employee is prohibited, in relevant part, from acting as the attorney for anyone other than the municipality in connection with any particular matter in which the municipality is a party and which is the subject of the official responsibility of the municipal employee. The lawsuit against the Town is a "particular matter" in which the Town is a party. See, G.L. c. 268A, § 1(k). Therefore, the propriety of your partner's representation of the plaintiff in the lawsuit turns on whether the lawsuit would be within your official responsibility as a member of the board of selectmen. "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." G. L. c. 268A, § 1(i). Based on the information which you have provided, the lawsuit would be a matter within the official responsibility of the board of selectmen. The Town by-laws expressly authorize the selectmen to settle or defend lawsuits such as that brought by the plaintiff. Although the merits of the lawsuit will be decided by the Appeals Court, the board of selectmen has responsibility for managing the defense of the lawsuit, including determining the litigation and settlement strategy. In view of this accountability, the lawsuit is within the official responsibility of the board of selectmen. This result will continue to apply even if you abstain from any participation as a selectman in the lawsuit, because official responsibility turns on the authority to act, and not on whether the authority is exercised.  Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. Law Rev. 299, 321 (1965); EC-COI-83-103; 83-37; 83-29. There are no exemptions under § 18 which would apply to your situation so as to allow the partner's continued representation following your election as a selectman. Although § 18 ¶ 5 provides an exemption in effect inviting the setting up of a separate partnership in which a municipal employee has no interest,^[1] this exemption applies only to special municipal employees.^[2] Braucher, Conflict of Interest in Massachusetts in Perspectives of Law, Essays for Austin Wakeman Scott 22 (1964). Because the population of the Town exceeds five thousand, you are not eligible for classification as a special municipal employee.

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End Of Decision 

^[1] The exemption in ¶ 5 provides as follows: 

     If a partner of a former municipal employee or of a special municipal employee is also a member
     of another partnership in which the former or special employee has no interest, the activities of
     the latter partnership in which the former or special employee takes no part shall not thereby be
     subject to clause (c) and (d).

^[2] The definition of special municipal employee in G.L. c. 268A, § 1(n) excludes "a mayor, a member of a board of aldermen, a member of a city council or a selectman in a town with a population in excess of five thousand persons . . ."