| Date: | 07/25/1984 |
|---|---|
| Organization: | State Ethics Commission |
A law firm associate is a special state employee as a consultant to the Special Master and a Trial Court Judge in connection with a court case involving a municipality and several state agencies over Boston Harbor pollution. He is subject to §§ 4 and 23 of the conflict of interest law. Because he is not a partner of the firm, the law firm partners are not subject to § 5 of the conflict of interest law.
You are an associate attorney at the law firm of Hill and Barlow and have been since 1981. In July 1983, you were appointed by Superior Court Judge Paul Garrity to serve as Deputy Special Master in City of Quincy v. Metropolitan District Commission, et al., Sup. Ct. No. 138477, a case which concerns pollution of Boston Harbor and the operation of the metropolitan sewerage system by the Metropolitan District Commission (MDC). The defendants in this case other than MDC include the Secretary of the Executive Office of Environmental Affairs (EOEA), the Commissioner of the Department of Environmental Quality Engineering (DEQE), the Director of the Division of Water Pollution Control (DWPC) and the Boston Water and Sewer Commission (BWSC). During July and August of 1983, your duties as Deputy Special Master were focused on assisting the Special Master, Harvard Law School Professor Charles Haar, in the preparation of a report which contained findings of fact and proposed remedies relating to plaintiff Quincy's motion for preliminary injunction.
On September 9,1983, Judge Garrity issued a Procedural Order, which suspended any further action on the motion for preliminary injunction, based on the defendants' commitment to pursue the adoption and implementation of the remedies proposed in the Special Master's report. While the Special Master's appointment was continued under this Order to monitor the defendants' implementation of these remedies, your own appointment was not (although you state you participated to a minor degree in the monitoring upon request). As of May 18,1984, however, you became one of the experts designated in a contract between the MDC and the Special Master to assist the latter in carrying out his monitoring duties. While the funding of the contract comes from the MDC, you state that your role is solely to serve as counsel to the Special Master.
1. Are you considered a state employee for the purposes of G.L. c. 268A, and if so, do you qualify for special state employee status?
2. What restrictions does Chapter 268A place on your work as a private attorney and the work of the partners and associates at Hill and Barlow?
1. Yes, you are the state employee inasmuch as you perform services for the Special Master, and through him a Superior Court Judge. You qualify for special state employee status under § 1(o)(2)(b).
2. You and other Hill and Barlow attorneys are subject to the restrictions discussed below.
Whether or not you are subject to the restrictions of G.L. c. 268A, the conflict of interest law, depends in the first instance on your classification as a state employee. Section 1(q) of Chapter 268A defines a state employee as "a person performing services for or holding an office, position, employment, or membership in a state agency, whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part time, intermittent or consultant basis, including members of the general court and executive council." [emphasis added]. State agency is defined as "any department of a state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town." G.L. c. 268A, § 1(p) [emphasis added].
In previous opinions, the Commission has held that trial court employees are "state employees" for Chapter 268A purposes. See. e.g., EC-COI-84-28; 84-27; 80-15. The Commission's rationale was that these judges and clerks fell within the statutory definition because they were performing services for, hired and paid by a state agency, namely the trial court.
Your original appointment as Deputy Special Master by Judge Garrity in the Quincy v. MDC case has expired. However, you are specifically named in the current contract between the MDC and the Special Master as an expert to be retained by the Special Master, who serves as an appointee of Judge Garrity. Your duties as counsel to the Special Master are spelled out in the contract: to assist the Special Master in his monitoring responsibilities under the Procedural Order and to undertake an investigation regarding the legal issues associated with the reduction and removal of inflow/infiltration. Likewise, your rate and method of compensation are detailed in the contract: the monies for your salary are to be paid by MDC via the Special Master. By contract, the Special Master is to keep all the work under his personal control. Based on the foregoing, the Commission concludes that you are not an employee of MDC. While MDC pays your salary, you are not performing services for MDC. Nor is the Superior Court itself the state agency for which you are performing services. Rather, you are a state employee by virtue of your employment arrangement with the Special Master and through him Judge Garrity. These individuals are at once "instrumentalities" of a department of state government (the trial court) and free from the administrative control of that court. Judges within the trial court have a degree of independence unique to that state agency, which distinguishes the trial court from other state agencies. The separateness of the judges is further underscored when a judge appoints a Special Master to a case. With the uniqueness of the court system in mind, the Commission finds that you are a state employee of "instrumentalities" of the trial court, namely the Special Master and the Superior Court judge.
Similarly, your employment relationship is structured and formal enough for you to be considered a consultant for the purposes of the state employee definition. Compare EC-COI-82-54. The Commission has in the past excluded from the broad definition of state employee those individuals who merely render informal, temporary and general advice to state officials (EC-COI-79-12) or present the views of individuals or groups affected by some state action (EC-COI-80-49). The reasoning was that people in government should be free to solicit information from, and opinions of, individuals in the private sector without the result being that those individuals who are willing to help are made subject to Chapter 268A. However, as someone in the private sector who is performing services for state government under a contract and "actually performing services and functions [monitoring] that might ordinarily be expected of government employees [judges]," you will be deemed a state employee. Compare EC-COI-82-54; 80-49. Because you are not an elected official and you state that you have not earned compensation as a state employee for more than eight hundred hours during the preceding three hundred and sixty-five days, you are automatically a special state employee pursuant to G.L. c. 268A, § 1(o)(2)(b).
Sections 4(a) and (c) provide that no state employee shall act as agent or attorney for or receive compensation from anyone other than a state agency in relation to any particular matter[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest. However, paragraph 7 of § 4 states that as a special state employee, you are subject to these prohibitions "only in relation to a particular matter (a) in which [you have] at any time participated as a state employee, or (b) which is or within one year has been a subject of [your] official responsibility, or (c) which is pending in the state agency in which [you are] serving. Clause (c) of the preceding sentence shall not apply in the case of a special state employee who serves on no more than sixty days during any period of three hundred and sixty-five consecutive days."
Therefore, if you serve as a state employee for less than sixty days, § 4 will basically prohibit you only from representing or being paid by a non-state party in relation to the Quincy v. MDC case, the particular matter you have participated in as a state employee. You will also be prohibited from representing a non-state party with respect to any special (as opposed to general)[2] legislation in which you participated or attacking the validity of any regulations the enactment of which you participated[3] in (EC-COI-81-34). Your monitoring and advising role for the Special Master concerning proposed regulations by the MDC or other Commonwealth defendants would constitute "participation" in the promulgation of those regulations. Because such promulgation is a "particular matter," you would be precluded under § 4 from representing Hill and Barlow clients with respect to the promulgation of such regulations or in attacking the validity of those regulations. The same analysis would apply to the enactment of special legislation. However, the § 4 prohibition would not extend to your representation of a client in proceedings pursuant to such regulations once they are in place. EC-COI-81-34.
If you serve as a state employee for more than sixty days,[4] the § 4 prohibition will extend to all matters pending before the Special Master or Judge Garrity, the state "instrumentalities" for which you are providing services.[5] In other words, you will be prohibited from representing anyone other than the commonwealth or a state agency in a case before the Special Master or Judge Garrity once your service as a state employee exceeds the 60 day limit. This section is clearly designated to avoid the potential for divided loyalties inherent where a state employee works for outside private interests in their dealings with the state, particularly before the very state instrumentality for which the state employee performs services.
Section 5 of Chapter 268A extends many of § 4's prohibitions against assisting outsiders to former state employees and partners of both present and former state employees. As to your own activities, § 5 would only come into play subsequent to the term of the contract. Once you become a former state employee, your special state employee status becomes irrelevant. As a former state employee, you would be permanently prohibited from acting as agent or attorney for, or receiving compensation from anyone other than the commonwealth or a state agency in connection with any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which you participated as a state employee. G.L. c. 268A, § 5(a). For example, you will be forever barred from representing an individual, company, municipal agency, town or city in connection with the Quincy v. MDC case. When you leave state service, you will also be under a one year prohibition against appearing personally before any court or agency of the commonwealth in connection with any particular matter as previously described, which was under your official responsibility[6] during the last two years of your state employment. G.L. c. 268A, § 5(b). Official responsibility turns on the authority to act, not on whether you actually participated and exercised that authority. Buss, Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 321 (1965). EC-COI-84-48. By the terms of the contract, the Special Master is to keep all the work under his personal control, i.e. within his official responsibility. From the facts you present, it does not appear that your official responsibility in the Quincy v. MDC case would extend beyond what you actually participate in on behalf of the Special Master.
Section 5(d) prohibits a partner of a state employee from acting as the agent or attorney for anyone other than the commonwealth in connection with any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest and in which the state employee participates or has participated as a state employee or which is the subject of his official responsibility. The Commission concludes that as an associate of the firm Hill and Barlow, you are not a "partner" of that firm for Chapter 268A, purposes and consequently § 5(d) does not presently apply to the firm partners. EC-COI-84-20. You should be aware, however, that previous Commission opinions have not restricted the term "partner" solely to those who enter partnership agreements but rather have focused on the substance of the relationship. In addition, if a group creates a public appearance of a partnership, they may be treated as partners even though they may not, in fact, share profits. See EC-COI-82-68; 82-19.
If you become a partner of the firm during the term of the contract, your fellow partners will be subject to the provisions of § 5(d). For example, they would be prohibited from representing a non-state party in connection with the Quincy v. MDC case or attacking the promulgation of regulations you participated in. If you become a partner of the firm within one year subsequent to the term of the contract, your fellow partners would be subject to the provisions of § 5(c). That section prohibits a partner of a former state employee for one year following the termination of your state service from engaging in any activity proscribed for you under § 5(a). The major restriction would again be against representing a non-state party in connection with the Quincy v. MDC case.
Section 23 of the statute contains general standards of conduct which are applicable to all state employees. That section provides in part that no state employee shall:
These provisions underscore the § 4 prohibition against you representing a non-state party before the State Master or Judge Garrity on other matters during the pendency of your service. But more importantly, § 23 sets the parameters for any dealings you may have with the MDC outside of your state monitoring role for the Special Master. While § 23 does not specifically require it, the safest course would obviously be to avoid representing any clients before MDC during the term of the contract. If you do appear before the MDC on behalf of a private client, e.g. to obtain a sewer connection or extension permit, you will have to take great care to abide by the § 23 provisions. You must not identify yourself in such MDC dealings as the monitor in the Quincy v. MDC case or do anything to exploit your governmental position. Moreover, you must avoid giving the impression that your recommendations to the Special Master concerning MDC activities could be improperly influenced based on MDC's handling of your clients' applications. Your representation of either MDC or its opponent in a court case during the term of your monitoring contract could likewise raise significant § 23 issues. If you become involved in any MDC court case during your state service, you should take any and all steps necessary to avoid giving the impression that you can be improperly influenced in your monitoring duties. Finally, you must not divulge confidential information concerning MDC procedures or standards to your clients or use such information to further your clients' or your own personal interests.
End Of Decision
