Opinion  EC-COI-85-13

Date:	02/26/1985
Organization:	State Ethics Commission

Following appointment to a part-time state board of registration, an attorney will be subject to the limitations of § 4 of the conflict of interest law applicable to special state employees. The attorney would be prohibited from representing private clients in matters before the board but would be free to represent clients before other boards of registration.

Facts

You are an associate attorney with a law firm (Firm) which represents clients before state boards of registration. You are under consideration for appointment to a board of registration (Board).

Question

Assuming you are appointed to the Board, what limitations will G.L. c. 268A place on you and other associates and partners of the Firm?

Answer

You will be subject to the limitations discussed below.

Discussion

1. Application of G.L. c. 268A to you

Section 1(q) of G.L. c. 268A defines "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." As a member of the Board, you will be a state employee for the purposes of G.L. c. 268A and therefore subject to that law's provisions. Your part-time status qualifies you as a special state employee,^[1] and the conflict law will apply less restrictively to you in certain circumstances.

Section 4 provides that a state employee may not receive compensation from or act as agent or attorney for anyone other than the state in connection with any particular matter^[2] in which the commonwealth or a state agency is a party or has a direct and substantial interest. Under § 4, as applied to you as a "special state employee," you will be prohibited from representing a non-state party in relation to any particular matter in which a state agency is a party or has a direct and substantial interest only if the matter is one in which you have either participated or have or have had official responsibility^[3] as a Board member. If you serve for more than sixty days in any three hundred sixty-five day period, the prohibition will apply to any matter pending before the Board. Examples of prohibited matters would be lawsuits, applications or proceedings involving the Board. The prohibition of § 4 does not extend to matters before other boards of registration.

Section 23 is also relevant to your situation. Under § 23(¶ 2) you may not use your official Board position to secure unwarranted privileges for yourself or others or, by your conduct, give reasonable basis for the impression that any person can unduly enjoy your favor in the exercise of your official duties. For example, if a member or associate of the Firm were to appear before the Board, or a client whom the Firm represents in other capacities were to appear before the Board, you should refrain from official participation in those Board proceedings. Additionally, you should refrain from disclosing to Firm members or others, confidential information which you have acquired as a Board member. See, G.L. c. 268A, § 23(¶ 3).

2. Application of G.L. c. 268A to Firm associates and partners

Based upon your current status as an associate, the conflict of interest law will not place additional restrictions on partners or associates in the Firm. Because you are not a partner, the § 5(d) restrictions do not apply to the private activities of partners with respect to your Board responsibilities. However, should your status with the Firm change you should renew your advisory opinion request to determine what, if any, additional restrictions would apply.

 

End Of Decision 

^[1] See, G.L. c. 268A, § 1(o)(2)(b), which provides that one automatically attains special state employee status if one is a non-elected state employee who does not in fact earn compensation as a state employee for more than eight hundred hours during the preceding three hundred and sixty-five days.

^[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 and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and  property."

^[3] G.L. c. 268A, § 1(i), "official responsibility," is "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action."