| Date: | 05/08/1984 |
|---|---|
| Organization: | State Ethics Commission |
A member of the General Court who is also an attorney and real estate developer may be part of a real estate development team seeking to be designated to purchase and develop real estate offered by a municipality where the state will have no involvement in the process. The legislator is advised to comply with the provisions of §23(b)(3) of the conflict of interest law.
You are a member of the General Court and Chairman of a Committee (Committee). You are also a private attorney involved in a real estate development business. Municipality ABC has recently made available for purchase and development certain property. ABC has requested proposals from developers and has established guidelines for developer submissions. The review process includes other agencies of ABC. You plan to become a member of a development team seeking designation as the purchaser and developer of the property. You are considering serving as either a part-owner or advocate on behalf of the proposal before ABC agencies and private entities. You state that the proposal would not be the subject of any proceedings before state agencies. The development team will not be seeking financial assistance from any state agency.
1. Assuming that your involvement with the development team is limited to an ownership interest and advocacy of the team's proposal to ABC, would you be in compliance with G.L. c. 268A?
2. What restriction does G.L. c. 268A place on your activities as a member of the development team?
1. Yes.
2. You will be subject to the limitations set forth below.
1. As a member of the General Court, you are a state employee within the meaning of G.L. c. 268A, § 1(q). Section 4 of G.L. c. 268A prohibits state employees from receiving compensation from or acting as agent or attorney for non-state parties in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. While the development team's submission to ABC would be a "particular matter" under G.L. c. 268A, § 1(k), the submission would not be a matter in which a state agency is a party or had a direct and substantial interest. The review process includes only municipal, as opposed to state agencies, and would not be subject to regulation by any state agency. Compare, EC-COI-82-15 (the application for a special development permit from a city council is not a matter of direct and substantial interest to the state; EC-COI-80-95 (local cable television licensing decisions are of direct and substantial interest to the state). Accordingly, your receipt of compensation or acting as agent or attorney for the development team before ABC agencies would not violate § 4.[1]
You state that the team will not be seeking financial assistance from any state agency. Since the team would therefore have no financial interest in any contracts made by state agencies, your potential ownership interest with the organization would not pose any problems under G.L. c. 268A, § 7. Further, there would be no state contracts or other particular matter which would require your participation as a legislator within the meaning of G.L. c. 268A, § 6 or § 6A.
2. As a member of the General Court and a state employee, you are also subject to G.L. c. 268A, § 23 ¶ 2(3) which 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 legislative duties, or that you are unduly affected by the kinship, rank, position or influence of any party or person.
The fact that you may take actions as a legislator affecting people or entities with whom you may have dealings as a member of the development team does not, in and of itself, create a problem. For example, § 23 would not prohibit a member of the Insurance Committee from seeking personal insurance from an insurance company under his Committee jurisdiction, a member of the Public Safety Committee from seeking automobile vehicle registration, or a member of the Judiciary Committee from representing a private client before a state court. There are, therefore, a range of private activities which, by their nature, do not create the impression of undue official favor within the meaning of § 23 ¶ 2 (3). Nonetheless, the existence of a regulatory relationship does create certain risks and may place obligations on public employees to take steps to avoid the impression that they will be unduly influenced by their private relationship. See, In the Matter of Kevin H. White, 1982 Ethics Commission 80; EC-COI-83-87. Moreover, if other facts beyond the overlap of public and private dealings come into play, the impression of undue favoritism may be inescapable. See, In the Matter of Rocco J. Antonelli, 1982 Ethics Commission 101, EC-COI-83-176. While the Commission has previously recognized that some official activities of a legislator are distinguishable from those of executive branch employees by virtue of the collective nature of the legislative process, there are nonetheless opportunities for legislators to take determinative action with respect to particular bills. For example, in EC-COI-83-43, the Commission concluded that a member of a Ways and Means Committee would violate § 23 by soliciting the purchase of financial instruments from individuals, unions and other entities over which he had significant authority in connection with legislative approval of the expenditure of state funds. More recently in EC-COI-83-102, the Commission advised a legislator that issues under § 23 would be raised if he solicited merchants whose special
legislation or other particular matter he is about to vote upon.
Because you have not as yet identified any particular entity with which you will deal, there is insufficient information from which the Commission can determine whether the extent of your official legislative responsibilities concerning the entity creates an inescapable impression of undue favoritism by virtue of your private dealings. Assuming that you remain interested in dealing with private entities on behalf of the group, you should renew your opinion request and notify the Commission once those entities have been identified. The Commission's subsequent conclusion under § 23 will turn on whether the entity which you solicit has "a distinct and unique interest before you in the legislature" EC-COI-83-43, and on your actions as a legislator with respect to those interests.
Irrespective of whether you deal with private entities or merely serve as a part-owner, the provisions of § 23 will remain in effect. For example, if you made a decision as Committee chairman which was unduly affected by the decision of a particular entity relating to your group, you would be in violation of § 23. See, EC-COI-83-34; 83-48.
End Of Decision
