Opinion  EC-COI-84-93

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

An attorney in private practice who is employed by a consulting firm that is consulting to the Attorney General’s Office to oppose a petition by state agency DEF filed with state agency ABC is prohibited under § 23 from continuing to consult with the Attorney General’s Office if appointed by the Governor to a position with DEF.

Facts

You are an attorney and are also employed by a consulting firm (Firm). You and your Firm currently consult to the Attorney General's office on a case before state agency ABC initiated by state agency DEF. The case involves a petition by DEF (identifying information deleted). The Attorney General is opposed to DEF's petition, and your work has been in developing evidence to support the Attorney General's position. You are under consideration as a gubernatorial appointee to DEF.

Question

Does G.L. c. 268A permit you to serve as a DEF member while also maintaining your consultant activities for the Attorney General in opposition to DEF's petition before the ABC?

Answer

No.

Discussion

The Commission has previously ruled that DEF is a state agency for the purposes of G.L. c. 268A because it is a public instrumentality of the commonwealth. (citations omitted). If you are appointed as a member of DEF, you will hold an "office, position, employment or membership in a state agency"' and will therefore become a state employee within the meaning of G.L. c. 268A, § 1(q).

As a state employee, you are subject to the standards of conduct contained in G.L. c. 268A, § 23. Under these standards a state employee may not:

1. Accept other employment which will impair his independence of judgment in the exercise of his official duties;       
2. use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others;          
3. by his conduct give 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;
4. accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority;
5. improperly disclose materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties nor use such information to further his personal interests.

The maintenance of your consultant arrangement with the Attorney General in opposition to DEF's petition while also serving as a DEF member would necessarily place you in violation of these standards. In particular, your ability to carry out your powers as a DEF member will be inherently impaired by your continuing consultation on behalf of the Attorney General. As a DEF member you are a member of an entity which has taken a litigation position before the ABC.  As the proceedings continue, the DEF presumably reviews the ABC proceedings and is in a position to formulate and evaluate litigation positions. Your ability to exercise independent judgment as a DEF member is necessarily undermined by your receipt of compensation for the advocacy of opposing positions in the same ABC proceedings.

Your mere abstention from participation in those portions of DEF meetings at which the ABC petition is discussed would not satisfy the standards of § 23. As a DEF member, you would have access to confidential commercial or financial information which would be relevant to the ABC petition. See, (citation omitted). As a consulting attorney to the Attorney General your duty to represent zealously the interests of your client would place you in an untenable position with respect to the information. Compare, EC-COI-83-176; 81-73.^[1] (Discussion of identifying enabling legislation omitted).

End Of Decision

^[1] The prohibitions of § 23 would apply to your serving as a member of DEF while also maintaining your consulting activities for the Attorney General in opposition to DEF's petition before the ABC. The same concerns under § 23 would not be raised if you were to consult to the Attorney General in proceedings which do not directly involve DEF. You would be required, however, to observe the disclosure requirements of G.L. c. 268A. § 7(d).