| Date: | 04/02/1985 |
|---|---|
| Organization: | State Ethics Commission |
A member of an independent state authority is a special state employee for the purposes of G.L. c. 268A. If he serves for more than sixty days in any 365 day period, he may not represent private parties in any matter pending in his agency. His representation of parties before other state agencies will not be treated as matters pending in his agency.
You are a member of the board of directors of ABC, an independent public authority (identifying information omitted). The 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.
The Commission recently rendered an advisory opinion to you as a special state employee outlining how G.L. c. 268A, § 4 would restrict your representation of private clients in matters in which ABC is a party or has a direct and substantial interest. EC-COI-85-18. That opinion was premised on the assumption that your service with ABC would not exceed sixty days in any three hundred and sixty-five day period. You now state that there is a possibility that your ABC service will exceed the sixty day ceiling
If you serve on the ABC Board for more than sixty days in any three hundred sixty-five day period, will G.L. c. 268A permit you to represent private clients before agencies other than ABC within DEF and before DEF itself?
Yes.
When a special state employee exceeds the sixty day ceiling,[1] he is subject to the additional § 4 restriction that he may not receive compensation from or act as agent or attorney for a non-state party in relation to any particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest if that matter is "pending in the state agency in which he is serving." The issue, then, is whether matters pending in divisions within DEF would be considered matters pending in your state agency for the purposes of this prohibition.
In its prior advisory opinions, the Commission has focused on the amount of control one agency has over the other to determine if there is "operational independence" between the agencies. See, e.g. EC-COI-84-30.[2] Where agency X approves agency Y's budget, acts as Y’s agent in contractual matters and monitors Y's activities, agency Y is considered operationally dependent on agency X. EC-COI-82-164. See, also EC-COI-82-50. Cf. EC-COI-84-30. However, the fact that the work of two agencies is related is not itself sufficient to find that matters pending in one agency will be considered pending in the other for Chapter 268A purposes. EC-COI-80-66.
From a review of ABC's enabling statute, it appears that ABC is operationally independent from the other divisions within DEF. For example, while division XYZ has certain approval rights and the authority to make rules and regulations in substantive areas which are related to ABC's jurisdiction (statutory citations omitted), it does not appear that XYZ monitors or has responsibility for ABC's activities. Similarly, ABC is not subject to the supervision or control of DEF. Consequently, matters pending before DEF or its divisions such as XYZ would not be considered matters pending in your state agency. If you serve on the ABC Board for more than sixty days, therefore, the additional § 4 restriction will only apply to matters pending before ABC itself.
End Of Decision
