Opinion

Opinion EC-COI-85-16

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

An assistant district attorney may serve as an incorporator of a non-profit corporation. He may not represent the corporation as its agent or attorney before state agencies and must abide by the standards of conduct in § 23 whenever his public and private dealings overlap.

Table of Contents

Facts

You are employed on a full-time basis as an assistant district attorney for a County (County). You are responsible for the prosecution of criminal matters for the County. You are planning to incorporate a non-profit corporation to sponsor educational conferences and training sessions for local, regional and state law enforcement personnel. You will serve as an unpaid officer of the corporation. The corporation plans to seek funding for its activities from private insurance companies interested in the issue of civil liability of law enforcement personnel. The corporation will also provide scholarships to local, regional and state police officers in order that they may attend educational programs. You state that the award of scholarships will be on a first-come basis.

Question

Does G.L. c. 268A permit you to participate in the activities described above?

Answer

Yes, subject to the limitations set out below.

Discussion

1. Limitations on your activities as an officer of the corporation

As a full-time employee of the County District Attorney's office, you are a state employee within the meaning of G.L. c. 268A, § 1(q). Section 4(c) of G.L. c. 268A prohibits a state employee from acting as agent or attorney for anyone other than the commonwealth or a state agency in connection with any particular matter[1] in which the commonwealth or a state agency is a party or has a direct and substantial interest. The term "particular matter" is not intended to include general issues of policy but rather focuses on types of activity which involve making decisions exercising judgment. Graham v. McGrail, 370 Mass. 133, 139-140 (1976). Since as an officer, your activities would involve formulating general issues or policy for the corporation and the educational programs it sponsors, your activities are not particular matters which fall under the prohibitions of § 4. Furthermore, the educational programs sponsored by the corporation are not of direct and substantial interest to the state. The corporation's programs are for the enrichment of the individual attendees. The program is a supplement to any other training law enforcement personnel are required to attend. The course offered by the corporation does not rise to the level of formalized training. However, if the course offered by the corporation became mandatory for state law enforcement personnel, then it would then be of direct and substantial to the state.

You may serve as an officer or director of the corporation. However, you may not act as the corporation's agent or attorney with respect to particular matters in which the state has an interest. For example, if the corporation were to apply to state agencies for grant monies to train state officials or use state funds to train other public officials, you could not act as agent in any respect concerning the corporation's application. As long as you do not act as the corporation's representative or spokesperson before any state agencies in relation to these matters, you will not  violate § 4(c). It is permissible for you to participate in the internal affairs of the corporation. However, as a state employee, you may not appear before any state officials or agencies on behalf of the corporation by signing, in a corporate capacity, documents or correspondence directed to state officials or agencies, or by acting as a spokesperson for the corporation in its dealings with the state. To do so would be acting as the agent of the corporation in violation of § 4(c).

2. Limitations on your activities as a state employee

As a state employee you are subject to the standards of conduct contained in § 23. The relevant provisions prohibit you from using or attempting to use your official position to secure unwarranted privileges or exemptions for yourself or others [§ 23(¶ 2)(2)], and by your conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official duties, or that you are unduly affected by the kinship, rank, position or influence of any party or person. [§ 23(¶ 2)(3)]. These provisions would come into play whenever there is an overlap or direct connection between your official duties and responsibilities and your private activities, interests or relationships. For example, you should not unduly favor law enforcement personnel whom you work with in your state position through the activities of the corporation. If the award of scholarships becomes discretionary, you should establish safeguards regarding the award of scholarships to personnel you deal with as an assistant district attorney. In addition, if an insurance company that distributed money to the corporation were involved in a case that you were prosecuting, you should notify your appointing official and establish safeguards to prevent any violation of § 23.

You should also be careful not to use resources available to you as a state employee to further the corporation's business. For example, you may not use state telephones, copy machines or clerical personnel to perform your private work. See EC-COI-84-39; 84-29. Further, you should not solicit fellow employees or law enforcement personnel for the corporation's programs during your working hours as a state employee. The principles discussed here apply because of the corporation's status as a private entity. In the event that the corporation's programs  become endorsed by a state agency, the result under this paragraph may be different. Compare, EC-COI-84-128.

 

End Of Decision 

[1] For 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."

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