| Date: | 05/14/1985 |
|---|---|
| Organization: | State Ethics Commission |
A partner in a law firm may be appointed to the board of directors of the Government Land Bank, but he may not receive compensation accruing from his partners' services in connection with matters before the Land Bank, and his partners may not act as agents or attorneys for non-state parties in connection with matters before the Land Bank.
You are a partner in a law firm (firm) which has represented clients in matters before the Government Land Bank.
You are interested in obtaining a public service appointment, and one such appointment which may become available is membership on the board of directors of the Land Bank.
The Land Bank was created by St. 1975, c. 212 to "aid private enterprise or public agencies in the speedy and orderly conversion and redevelopment of certain lands formerly used for military activities for non-military uses." It is governed by a ten-member board of directors, eight of whom are appointed by the Governor and the remaining two being state officials. St 1975, c. 212, § 2. Directors serve for three years; they are not compensated but are reimbursed for their expenses. Id.
As a member of the Land Bank board, you would be a state employee as defined in the conflict of interest law and, as a result, subject to its provisions. Because you would hold a position for which no compensation is provided, you would also be a special state employee. Therefore, some provisions of G.L. c. 268A would apply less restrictively to you.
Section 4 of the conflict law prohibits a special state employee from being compensated by, or acting as agent or attorney for, anyone other than the state in connection with any particular matter[1] in which the state is a party or has a direct and substantial interest, and which:
a. you participated in as a state employee,
b. you have or have had within your official responsibility within the past year, or
c. if you serve more than sixty days during any period of 365 days, which is pending in your agency.
Assuming that you will not serve more than sixty days as a member of the Land Bank board, § 4 will apply only to matters in which you participate or for which you have official responsibility.
The Commission has held that where a particular body supervises and controls the activities of a state agency, members of that body are deemed to have "official responsibility” for all matters pending in the agency. See EC-COI-81-2.[2] This is true whether or not the state employee actually participates in the matter. EC-COI-81-14. Since the Land Bank board by statute "governs" the Land Bank, id., members of the board are deemed to have official responsibility for all matters pending in that agency. Therefore, § 4 would apply to you in regard to all Land Bank matters. Moreover, the Commission has ruled that compensation paid to a partnership accrues to each of the partners. EC-COI-85-20; 85-21. Therefore, unless any compensation related to Land Bank matters is excluded from your partnership share, as you propose, you would be in violation of § 4 when the partnership is compensated for work performed on Land Bank matters.[3]
Section 4 addresses the limitations on your receipt of compensation accruing from the partners' services. Section 5, on the other hand, places limitations on the representational activities of your partners. Section 5(d) prohibits the partners of a state employee from knowingly acting as agent or attorney for anyone other than the state in connection with any particular matter in which the state is a party or has a direct and substantial interest, and which the state employee participates in or has official responsibility for. The Commission's interpretation of "official responsibility" for purposes of § 5 is identical to that adopted for § 4. In other words, as a member of the Land Bank board, all particular matters pending in the Land Bank are within your official responsibility. Therefore, as long as you are a member of the Land Bank board, your partners will be prohibited from acting as agent or attorney for any non-state party in connection with any matter before the Land Bank.
End of Decision
