Opinion  EC-COI-84-90

Date:	07/17/1984
Organization:	State Ethics Commission

A school committee member who is also an attorney in private practice is advised that § 20 of the conflict of interest law would prohibit his partnership with an attorney in private practice who represents the school committee on occasion in special education matters.

Facts

You are an elected member of the town of ABC School Committee (the school committee). You are also a practicing attorney. Within the next six weeks you will be forming a professional corporation with some other attorneys. You have stated that the arrangement will be a partnership and that you and the other attorneys will be sharing profits. One of the attorneys with whom you will join in the practice represents the school committee on occasion in special education matters. When he performs these services, he is paid on an hourly basis.

Question

Would your participation in a partnership in which one of your partners represents the school committee constitute a violation of G. L. c. 268A?

Answer

Yes, given the arrangement you have described.

Discussion

As a member of the school committee, you are a municipal employee within the meaning of G. L. c. 268A, the conflict of interest law.^[1] You therefore are subject to the provisions of that law. The situation you have presented raises serious problems under § 20 of the law.

Section 20 provides in pertinent part that no municipal employee may have a financial interest, directly or indirectly, in a contract made by a municipal agency of the same town in which the town is an interested party. If your partner continues to provide legal services to the school committee, then any money paid to him would become an asset of the partnership. You would have an ownership interest in any asset of the partnership, and you therefore would have a financial interest, albeit an indirect one, in your partner's contract with the school committee. The town obviously is an interested party in any contract made by the school committee. Section 20 contains several exceptions to this prohibition, but as a practical matter there are very few instances when a municipal employee can have a financial interest in a contract made by his own agency. None of these exceptions applies to you. 

The § 20 prohibition will result as long as your association with the other attorneys continues in the form you have described. Should the situation change so that the money your colleague earns in connection with the school committee contract is kept by him and is not in any way an asset of the partnership or used to benefit the partnership, then there would be no § 20 violation. See, EC-COI-81-75. You would, however, be subject to the provisions of § 19 which provide that no municipal employee may participate as such an employee in a particular matter^[2] in which he or a partner has a financial interest. The fact that the partnership would not benefit under these circumstances is immaterial. The salient fact is that your partner would have a financial interest. See Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. Law Rev. 299,357 (1965). Therefore, you would have to refrain from participating as a school committee member in any matter which might inure to your partner's benefit, such as decisions to retain him, and decisions to appeal special education cases which would provide further legal work for him. You would have to abstain not only from voting on such matters but also from participating in any discussion or other consideration of the matter surrounding the vote. See EC-COI-84-76; 84-55.^[3]  "The wise course for one who is disqualified from all participation in a matter is to leave the room." Graham v. McGrail, 370 Mass. 133, 138 (1976).

Should there be no prohibition under § 20, you should be aware of § 23 which prohibits the use or attempted use of one's official position to secure unwarranted privileges or exemptions for himself or others. It also prohibits one from by his conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person. In this regard you should be careful, for example, that no action you take on the school committee gives the appearance of your trying to obtain benefits for your law partnership or its individual members.^[4]

End Of Decision  

^[1] You have not, to your knowledge, been designated a special municipal employee as that term is defined in G.L. c. 268A, § 1(n). Should your status change, the result might be different in that you would be eligible to apply for the exemption contained in § 20(d).

^[2] 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).

^[3] These citations refer to previous Commission conflict of interest opinions including the years they were issued and their identifying numbers. Copies of these and all other advisory opinions (with identifying information deleted) are available for public inspection at the Commission office.

^[4] The Commission does not need to discuss the provisions of § 18 because your partner is acting as attorney for the town and not some outside interest. You should however be aware that your partner may also be a municipal employee by virtue of his contractual arrangement with the school committee and therefore subject to the provisions of the conflict of interest law.