Opinion  EC-COI-86-12

Date:	06/16/1986
Organization:	State Ethics Commission

A legislator who is an attorney in private practice would violate § 4 of the conflict of interest law by representing a client before the state Parole Board unless his appearance before the Parole Board was unpaid, but an associate in the law firm may appear on behalf of the client.

Facts

You are a member of the General Court and also an attorney engaged in the practice of law. You have recently been asked by a potential client to represent him before the Massachusetts Parole Board ("Board"). The Board is authorized by G.L. c. 127 § 133 to consider a parole petition filed by a state prison inmate. In determining whether to grant a petition, the Board will customarily allow the petitioner to make a personal statement but will not permit a personal appearance by the petitioner's attorney. Proceedings relating to parole petitions involve only one party, the petitioner; there is no institutionalized party-respondent role which either the Board counsel or private parties play in these proceedings. The Board's final decision is discretionary, Commonwealth v. Hogan, 17 Mass. App. 186(1983), and there is no statutory authorization for an appeal to the court of the Board's decision.

Questions

1. Does G.L. c. 268A permit you to appear before the Board in relation to the parole petition?
2. Would it be permissible if one of your associate attorneys appeared for compensation before the Board in relation to the parole petition?

Answers

1. No, unless your appearance is unpaid.
2. Yes, as long as your associate, rather than you, personally appears.

Discussion

As a member of the General Court, you are a state employee for the purpose of G.L. c. 268A. Section 4 of G.L. c. 268A generally prohibits state employees from receiving compensation from private clients in relation to any particular matter^[1] in which the Commonwealth or a state agency is a party. Because the Board is a state agency, a parole petition submittal to the Board is a particular matter subject to § 4 prohibition. However, as a member of the General Court, you are subject to § 4 in the following limited way:

A member of the general court shall not be subject to paragraphs (a) or (c). However, no member of the general court shall personally appear for any compensation other than his legislative salary before any state agency, unless:

1. the particular matter before the state agency is ministerial in nature; or
2. the appearance is before a court of the Commonwealth; or
3. the appearance is in a quasi-judicial proceeding^[2] G.L. c. 268A, §4 (paragraph 5).

Based upon the information you have provided, the Commission concludes that your proposed representation is not exempt from § 4. By your personally appearing for your client in the parole petition proceeding, you would be appearing personally before a state agency. You would not qualify for an exemption with respect to your appearance because:

1. the parole petition determination is not ministerial in nature but involves the exercise of discretion by the state agency;
2. the Board is not a state court, and
3. your appearance is not in a "quasi-judicial proceeding" within the meaning of § 4.

A Board hearing is not a "quasi-judicial proceeding" in that there are not "two sides" as such (and even the petitioner's right to representation is substantially restricted), and the Board's decision is not appealable to the courts pursuant to the provisions of the administrative procedure act, G.L. c. 30A § 1(2).

On the other hand, the relevant restrictions of § 4 apply only to your compensated personal appearances before state agencies, and not to appearances by your employees. The limitations of the § 4 legislator restrictions reflects a concern over potential influence which a legislator could exercise in face-to-face dealings with state agencies over which the legislator has budgetary and legislative power. The potential for such influence is diminished, however, when an employee of a legislator, as opposed to the legislator himself, makes a personal appearance, and the statutory scheme under § 4 does not extend the legislator prohibitions to others. Therefore, your associate's paid representation of your client would not place you in violation of § 4. EC-COI-85-40.


End Of Decision

[1] G.L c. 268A, § 1(k) defines "particular matter" as "any judicial or other proceeding, application, submission, request for ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision determination, finding, but excluding the enactment of general legislation by the general court."

[2] For the purposes of s.4 (paragraph 5), a proceeding is considered quasi-judicial if:

1. the action of the state agency is adjudicatory in nature: and
2. the action of the state agency is appealable to the courts: and
3. both sides are entitled to representation by counsel and such counsel is neither the attorney general nor the counsel for the state agency conducting the proceeding.