Opinion  EC-COI-85-10

Date:	01/31/1985
Organization:	State Ethics Commission

An attorney who consults part-time to a state board is a special state employee. Because he will be serving as a consultant for less than sixty days annually, § 4 prohibits his representation of private clients only in matters in which he has participated or has official responsibility. Should he appear before the board in permissible matters, board members must avoid giving the appearance of unduly favoring his clients because of his consultant relationship (§23).

Facts

You are a partner in a law firm (Firm). A state board (Board) is considering retaining you to prepare a medical and dependent care reimbursement plan for its staff employees. Your duties will be limited to preparing the plan and supporting documents and occasionally advising about the administration of the plan, and you do not expect to work for the Board on more than sixty days during any three hundred and sixty day period.

Question

What limitations will G.L. c. 268A place on you and your partners following your retention by the Board?

Answer

You and your partners will be subject to the limitations set forth below.

Discussion

The Board is a state agency within the meaning of G.L. c. 268A, § 1(p) ,^[1] and you will be a state employee for G.L. c. 268A purposes by virtue of your consultant arrangement with the Board.

In view of your part-time consultant status, you will be eligible as a special state employee within the meaning  of G.L. c. 268A, § 1(o).^[2] You will automatically qualify as long as your hours during any three hundred sixty five day period do not exceed eight hundred. Otherwise, your appointing official will be required to classify your position pursuant to G.L. c. 268A, § 1(o)(2)(a).

Assuming that you are a special state employee, G.L. c. 268A, § 4 prohibits you from receiving compensation from or acting as the agent or attorney for any party other than the commonwealth or a state agency in connection with any "particular matter"^[3] in which you have participated^[4] or have had official responsibility as a state employee.^[5] In practical terms, you will be prohibited from private representation only with respect to those matters related to the Board's expense reimbursement plan. Because the scope of your Board responsibilities does not extend to the representation of the Board in any other matter, you may privately represent parties in other matters before the Board, state agencies or state courts. This discussion applies equally to your partners. See, G.L. c. 268A, § 5(d).^[6]

 

End Of Decision 

^[1] For the purposes of G.L. c. 268A, § 1(p), "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."

^[2] For the purposes of G.L. c. 268A, § 1(o) "special state-employee" is defined as a state employee:

       1) Who is performing services or holding an office, position, employment or membership for which
       no compensation is provided, or

       2) Who is not an elected official and

           a) Occupies a position which, by its classification in the state agency involved or by the terms
           of the contract or conditions of employment, permits personal or private employment during
           normal working hours, provided that disclosure of such classification or permission is filed in
           writing with the state ethics commission prior to the commencement of any personal or private
           employment, or

           b) In fact does not earn compensation as a state employee for an aggregate of more than eight
           hundred  hours during the preceding three hundred and sixty-five days. For this purpose,
           compensation by the day shall be considered as equivalent to compensation for seven hours
           per day. A special state employee shall be in such a status on days for which he is not
           compensated as well as on days on which he earns compensation.

^[3] For the purposes of G.L. c. 268A, § 1(k), "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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property."

^[4] For the purposes of G.L. c. 268A, § 1(j), "participate" is defined as "participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise."

^[5] Because you will not be serving for more than sixty days annually, the restrictions against your appearing in any matter pending before the Board will not apply.

^[6] Although nothing in G.L. c. 268A prohibits you from practicing before the Board on cases unrelated to your official duties, the provisions of G.L. c. 268A, § 23 apply to members of the Board. In particular, Board members should be careful to not give the appearance of unduly favoring your clients  in view of your relationship with the Board.