Opinion  EC-COI-84-79

Date:	06/19/1984
Organization:	State Ethics Commission

A member of the General Court who is an attorney in private practice is prohibited under § 4 of the conflict of interest law from representing a law client in an inquiry by the Office of Campaign and Political Finance.

Facts

You are a member of the General Court and an attorney engaged in the private practice of law. A prospective client wants you to represent him for compensation in an inquiry by the Office of Campaign and Political Finance, under G.L. c. 55.

Question

Does G.L. c. 268A permit you to appear for compensation on behalf of a client before the Office of Campaign and Political Finance (OCPF)?

Answer

No.

Discussion

As a member of the General Court, you are a state employee as that term is defined in G.L. c. 268A, § 1(q), the conflict of interest law. 

Section 4 of c. 268A states:

     . . . 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^[1] 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. 

For the purposes of this paragraph, ministerial functions include, but are not limited to, the filing or amendment of: tax returns, applications for permits or licenses, incorporation papers, or other documents. For the purposes of this paragraph, a proceeding shall be 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.

Your appearance before the OCPF would not fall under any of the three exemptions set out in
§ 4. Clearly the particular matter involved, i.e., OCPF's inquiry, is not ministerial in nature. Nor is the OCPF a court of the Commonwealth. That its inquiry may possibly lead to a criminal prosecution sometime in the future is immaterial. There is no ongoing court case or grand jury proceeding and there may never be one. Moreover, the OCPF would not, in any event, function as the prosecutor in a criminal proceeding. To allow appearances before separate and independent investigatory agencies before the matter has even been referred to a law enforcement agency would have a widespread impact clearly not contemplated by the language of § 4 applicable to legislators. It would allow appearances, for example, before the State Ethics Commission, the Inspector General, the Bureau of Special Investigations, the Auditor's Office and many other state agencies that investigate potential criminal conduct.

Finally, a hearing by the director of OCPF is not a quasi-judicial proceeding as defined in G.L. c. 268A, § 4(3). The director is only authorized under G.L. c. 55, § 3 to:

     . . . investigate the legality, validity, completeness and accuracy of all reports and actions
     required to be filed and taken by candidates, treasurers, political committees and any
     other persons pursuant to [chapter 55] and any other laws of the commonwealth pertaining
     to campaign contributions and expenditures. 

In the course of the investigation, the director may require testimony under oath by witnesses. Witnesses also have the right to be represented by counsel. Further, any person or committee under investigation is notified by the director of his intention to present evidence to the Attorney General. An alleged violator may request a hearing before the director for the purpose of presenting evidence to the contrary. See 970 CMR 3.00 (1978).

Accordingly, the OCPF hearing does not satisfy the three criteria set out in § 4 for quasi-judicial proceedings. It is not adjudicatory in nature.^[2] The director does not decide the rights of the alleged violator. Any evidence presented at the hearing is presented to the attorney general. See G.L. c. 55, § 3. Although G.L. c. 55, § 3 grants to the director "the power and authority to investigate the legality, validity, completeness and accuracy" of reports, §§ 28-29 specifically delegate to the Attorney General and the District Attorney the duty to make final legal determinations on these questions. 1978 Op. Atty. Gen. No. 27. Once the director completes his investigation and refers it to the attorney general, OCPF has no jurisdiction over the matter.

Moreover, the action of the OCPF is not appealable to the courts. Again, that an alleged violator may one day be a defendant in a separate and independent criminal proceeding is immaterial. Finally. any hearing or inquiry at the OCPF is not one involving two parties represented by private counsel. This last criterion is meant to limit "quasi-judicial" proceedings to those where a state agency is adjudicating the rights of two private, i.e., non-state parties.

End of Decision

^[1] Particular matter means "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] G.L. c. 30A, § 1(1) defines an adjudicatory proceeding as a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing." See Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 313 (1981), Borden, Inc. v. Commissioner of Public Health, 448 N.E. 2d 367 (1983). Further, an adjudicatory proceeding is one in which a statutory or constitutional direction dictates an agency hearing. Labor Relations Commission v. Fall River Educator's Association, 382 Mass. 465, 470 (1981).