Opinion  EC-COI-85-18

Date:	03/12/1985
Organization:	State Ethics Commission

A member of an independent state authority is a special state employee for the purposes of G.L. c. 268A, and is subject to restrictions under § 4 on his private activities.

Facts

You are a member of the board of directors of ABC, an independent public authority (identifying information omitted). ABC is organizationally located within the executive office of DEF but not subject to the supervision or control of DEF or of any other executive office, department, commission, board, bureau, agency or political subdivision of the commonwealth except to the extent and the manner provided in the ABC enabling statute. Your ABC board membership is unpaid, and the board meets twice monthly.

You are also a private attorney and represent clients on issues before state agencies within DEF.

Questions

1. Are you a state employee or special state employee for the purposes of G.L. c. 268A?

2. If so, what limitations does G.L. c. 268A place on your outside activities?

Answers

1. Yes.

2. You are subject to the limitations set forth below.

Discussion

1. Jurisdiction

The definition of state agency in G.L. c. 268A, § 1(p) includes independent state authorities such as ABC. Compare, In the Matter of Henry Doherty, 1982 Ethics Commission 115 (MBTA is a state agency for G.L. c. 268A purposes); EC-COI-81-119 (regional transit authority is a state agency for G.L. c. 268A purposes). Moreover, the ABC enabling legislation expressly characterizes the ABC as a state agency for G.L. c. 268A purposes. Accordingly, as a member of a state agency, you are a state employee within the meaning of G.L. c. 268A, § 1(q). Because of your unpaid status, you are also a "special state employee" under G.L. c. 268A, § 1(o). As a special state employee, you are subject to fewer restrictions than those with which a full-time employee must comply.

2. Limitations

The section of the conflict of interest law relevant to your outside activities is G.L. c. 268A, § 4. As a special state employee, you are prohibited from receiving compensation from or acting as agent or attorney for a non-state party 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  only if the matter is one in which you have either participated^[2] or have official responsibility as an ABC board member.

Inasmuch as you neither participate in nor have official  ABC responsibility for proceedings before divisions within DEF, you may represent private clients in matters before those agencies. In practical  terms, the restrictions of § 4 will apply only to representation of private clients in matters in which ABC is a party or has a direct and substantial interest. You should be aware that the § 4 restrictions will remain relatively limited as long as your service with ABC does not exceed sixty days in any three hundred and sixty-five day period. As currently scheduled, the ABC's meeting plans will not exceed the sixty day ceiling. However, should the ABC board meet more often than twice monthly, or should you find that your ABC responsibilities require your services on more frequent occasions than for ABC board meetings, you should renew your opinion request to ascertain the extent to which G.L. c. 268A, § 4 might limit your outside activities before other agencies within DEF.

 

End Of Decision 

^[1] 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."

^[2] 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."