| Date: | 05/28/1985 |
|---|---|
| Organization: | State Ethics Commission |
An attorney who contracts with a municipal redevelopment authority to provide legal services in a particular matter must limit his work, and that of his firm, to 60 days per year if the firm wishes to represent private parties before the authority on unrelated matters.
You are a partner at a law firm (Firm). The Firm wishes to enter into a contract with municipal agency ABC to provide legal services in connection with a parcel of land owned by the ABC. The legal services called for in the contract would include such activities as investigation, negotiation and possible litigation. The contract, as it is presently drafted, is between the ABC and you personally, although you state it is contemplated that other partners and employees of the Firm will also perform work on it. At the present time, the Firm represents clients in connection with other unrelated matters pending before the ABC and other authorities and agencies of the municipality.
What limitations will G.L. c. 268A place on the activities of the Firm and its partners and employees should you enter into the contract with the ABC?
You and the Firm will be subject to the following limitations.
ABC is a municipal agency as that term is defined in G.L. c. 268A § 1(f). You would, therefore, be considered a municipal employee, but because you would be providing part-time services, your status would be that of a special municipal employee. Certain provisions of G.L. c. 268A apply less restrictively to special municipal employees.
The sections of the statute relevant to the questions you have asked are §§ 17 and 18. Section 17 provides in relevant part that a special municipal employee may not receive compensation from or act as agent or attorney for anyone other than the municipality in connection with any particular matter[1] (1) in which he has at any time participated as a municipal employee, or (2) which is or within one year has been a subject of his official responsibility or (3) which is pending in the municipal agency in which he is serving. This last restriction applies only to a special municipal employee who serves as such for more than sixty days during any period of three hundred and sixty-five consecutive days. If you were to provide services under the contract for more than sixty days, you could not be retained by or represent other clients in connection with any matters before ABC during the duration of your municipal employment because such matters would be considered to be pending in the agency in which you are serving.
Several points should be made with respect to calculating days served for purposes of the sixty-day limit The inclusion of a sixty-day limit in the statute recognizes that special municipal employees whose services in a one-year period exceed sixty days are likely to possess and exercise influence with respect to their agency's actions. The Attorney General and, subsequently. the Commission have addressed this sixty-day limit in previous opinions and concluded the following. First, a day is not counted for purposes of the sixty-day limit unless services are actually performed for the public entity on that day. Atty. Gen. Conf. Op. 229. Second, if an employee serves only part of a day for the public entity, he or she will be considered to have served for a complete day. EC-COI-80-31.[2] Third, if the special public employee assigns one of his firm's associates to perform the work under his supervision, he will be considered as having served on each day in which the associate performs such services even though the employee himself may not have performed billable services on such days. EC-COI-84-129. You have asked how the Firm must calculate days on which more than one attorney performs services under the contract. Because the concern addressed by the statute is the potential for influencing pending agency matters if the employee serves more than sixty days, it is clear that the issue is the total number of days on which work is performed for a given project, and not the total number of people who actually perform the work. Thus a day on which more than one firm partner or associate performs any work under the contract will be counted as one day for purposes of calculating the sixty-day limit. This is true regardless of the combination of partners or associates performing work on a given day, whether including you or not.
You have also asked whether the time expended by paralegals and non-legal support staff must be calculated toward the sixty-day period. In answering this, the Commission distinguishes between the substantive legal services the contract calls for you to provide, and the ancillary services that go along with those substantive services, such as secretarial, word-processing, and photocopying services. You have stated that the contemplated legal services include investigation, negotiation and possible litigation in connection with the ABC land parcel. Presumably the paralegals will be involved in the delivery of these substantive legal services such as by performing title searches, preparing documents, or assisting with discovery. Thus the time they spend on those substantive legal services must be counted for purposes of the sixty-day limit. In the unlikely event that non-legal support staff perform substantive, as opposed to ancillary, services under the contract, that time too must be counted toward the sixty days. However, time spent on provision of purely ancillary services need not be counted.[3] It is not possible for the Commission to anticipate every type of task that might be called for in performing the work under the contract, and questions might arise as to whether certain work is substantive or ancillary in nature. Should this be the case, further guidance may be sought from the Commission.
The other section of G.L. c. 268A that is relevant to your question is § 18(d). It provides in pertinent part that no partner of a municipal employee may act as attorney for anyone other than the municipality in connection with any particular matter in which the municipality is a party or has a direct and substantial interest and in which the municipal employee participates, or has participated as a municipal employee, or which is the subject of his official responsibility. The only limitation on the Firm's partners is that they may not represent anyone but the ABC or another municipal department or agency in connection with the parcel of land that is the subject of the contract as long as ABC or any other municipal department or agency is a party to the matter or has a direct and substantial interest in it.
End Of Decision
