Opinion  EC-COI-87-18

Date:	06/08/1987
Organization:	State Ethics Commission

An attorney may serve as special municipal counsel representing a board of health in a state lawsuit.

Facts

You are a partner in a law firm. Since 1986 you have represented ABC company and that company's president in a certain matter. DEF company is a competitor.[1] In your representation of ABC, you have submitted requests for public documents from various state and local agencies relating to DEFs operations. In relation to one of those requests, you submitted a brief and a motion to dismiss a request by DEF for a Massachusetts Department of Environmental Quality Engineering (DEQE) hearing to review a tentative determination by that agency as to whether certain DEF documents were confidential. The decision in that DEQE matter is still pending. One of the requests for records was submitted to the GHI Board of Health[2] and withdrawn. You currently have record requests pending in several communities and with DEQE. You and members of your firm have done other unrelated legal work for ABC and for its president.

The GHI Board of Health has recently hired you and your partner as special counsels. The special counsel position was designated a "special municipal employee" position for the purposes of G.L. c. 268A, by the Board of Selectmen. You will represent the GHI Board of Health in an action for declaratory judgment brought against that Board by DEF. That lawsuit, involves a disagreement as to whether DEF must obtain a permit. Prior to your appointment to the GHI position, you disclosed your prior dealing with ABC (and the company president) to the GHI Town Counsel.

DEF has filed a lawsuit naming various GHI town officials, ABC and you as defendants. The suit alleges that the defendants have conspired over a two-year period to deprive DEF of its rights under state and federal laws, and that they defamed it and interfered with advantageous relations. In particular, DEF alleges that the Board of Health has furthered its conspiracy against DEF by hiring you following your making adverse allegations against DEF in your representation of ABC. You will be represented by a partner of your firm. Neither you nor your firm will be representing any of the other defendants in that lawsuit.

Question

Does G.L c. 268A permit you to serve as special counsel for the Town of GHI in light of your prior and ongoing representation of ABC and your status as a defendant in federal litigation initiated by a competitor of ABC?

Answer

Yes, subject to the restrictions below.

Discussion

As special counsel to the Town of GHI, you are considered a "special municipal employee" for the purposes of G.L c. 268A, since that position was designated as such by the Board of Selectmen in accordance with G.L.c. 268A s.1(n).

1. Section 19

Under this section, you are required to abstain from participating as a GHI special counsel in any lawsuit or other particular matter in which either you or your law firm has a financial interest. Because it is possible that the resolution of the state lawsuit in which you represent the Town might affect your financial interest in the federal lawsuit, we advise you to seek, from the Board of

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Health, an exemption from the prohibition of s.19. While it is true that the bulk of DEFs' allegations in the federal suit involve patterns of harassment and intimidation which are independent of the merits of whether a site permit is required, some of the allegations assert procedural irregularities by Town officials in the denial of every DEF submission, including its permit. To the extent that the resolution of the issue of the state case could affect the success of DEFs' claim against you, you may have a reasonably foreseeable financial interest in the state lawsuit. To avoid any potential violation of s.19, your further participation in the state lawsuit should therefore be approved by the Board of Health pursuant to s.19(s.b)(1). The Board of Health must be guided by the standards of conduct in s.23 in granting you such an exemption.[3]

2. Sections 17 and 18

Sections 17(a) and (c) of the conflict of interest law generally prohibit a municipal employee from receiving or requesting compensation from or acting as an attorney or agent for anyone other than the town or municipal agency[4] in relation to any particular matter[5] in which the same town is a party or has a direct and substantial interest. As to special municipal employees, however, the provision is less restrictive. A special municipal employee is subject to s.17(a) and (c) "only in relation to a particular matter (a) in which he has at any time participated as a municipal employee, or (b) which is or within one year has been subject of his official responsibility, or (c) which is pending in the municipal agency in which he is serving. Clause (c) of the preceding sentence shall not apply in the case of a special municipal employee who serves no more than sixty days during any period of three hundred and sixty-five consecutive days."

Based upon the information you have provided, we conclude that your serving as special counsel to the Town will not disqualify you or your firm from either continuing your representation of ABC or representing you in defense of the federal lawsuit initiated by DEF.

(a) Your representation of ABC

Section 17 will pose potential problems for you only if you represent ABC or its officers in relation to any matters pending before the GHI Board of Health.[6] Your representation of ABC and its officers has involved requests in communities other than GHI and DEQE proceedings to determine the confidentiality of documents.  Because these matters are not pending before the GHI Board of Health, s.17 does not restrict your engaging in these activities.  Should you wish to renew a DEF record request on behalf of ABC before the GHI Board of Health, then s.17 would apply.

(b) Your firm's representation of you in the federal litigation

Under s.18(d), a partner of a municipal employee will share certain prohibitions which apply to the municipal employee under s.17. Specifically, the partner of a municipal employee may not act as attorney or receive compensation from a non-town party in connection with any lawsuit in which the municipal employee participates or has official responsibility for. Based upon our review of court papers in the DEF federal lawsuit, we conclude that your firm's representation of you would not be in connection with the same state lawsuit for which you represent the Board of Health.  While, as we have seen, the state case may have an impact on the outcome of some of the allegations in the federal case, the two cases are different particular matters. The single focus of the state case is whether DEF is entitled to an operating permit. The bulk of the allegations in the federal civil rights suit, on the other hand, assert a two year pattern of harassment and conspiracy by GHI officials to deny every submission by DEF. Given the substantial difference in the issues posed by the two lawsuits, we find that the firm's representation of you in the federal case is not "in connection with" the state lawsuit involving DEF.[7]

3. Section 23

Under this section, you must satisfy certain standards of conduct in your representation of the Board of Health, in light of your ongoing representation of ABC. Because you have disclosed your representation of ABC, and the litigation positions which are advocating are consistent with the Town's interests in the state lawsuit, you will not be deemed to have accepted employment which is inherently incompatible with your responsibilities to the Town or to have created the appearance of undue influence in your Town position. Compare, EC-COI-82-7 (state mediator's acceptance of outside employment with a labor union is inherently incompatible with his state position). See, G.L c. 268A, s.23(b)(1). However, we caution you that issues under s.23(b)(1) may arise in the future if your advocacy of the Board of Health's interests is impaired by your subsequent advocacy on behalf of ABC. We therefore advise you to renew your opinion request to us should your advocacy assignments on behalf of ABC subsequently change. You should be aware that s.23(b)(2) prohibits you from using your official position with the Board of Health in gaining any exemptions or favors for ABC. Furthermore, you should bear in mind the s.23(c) restrictions on the use of confidential information, and refrain from improperly disclosing or misusing confidential information which you have acquired in your Board of Health activities.[8]

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In summary, while your representation of the Board of Health does not outright violate s.23, based on your current facts, any substantial change in your facts could place you in violation of the aforementioned standards of conduct.

[1] You state that you were hired by ABC only to gather information on DEFs' operations. The purpose of your representation of ABC was not connected to DEFs' operations.

[2] You received a letter from that Board stating that the documents you requested were available for inspection. You never inspected those records and you subsequently withdrew your inspection request.

[3] We note that you have filed a motion to dismiss allegations against you. The abstention procedures of s.19 will apply as long as you continue to be a defendant in the federal lawsuit.

[4] "Municipal agency", any department or office of a city or town government and any council, division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder. G.L. c. 268A, s.1(f).

[5] "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. G.L.c. 268A, s.1(k).

[6] For the purposes of your opinion request, we will assume that you or your partners will be performing services for the Board of Health for more than 60 days in any 365 day period. In any event, the application of s.17 to your current facts will not be affected by the number of days you or your firm perform services.

[7] By your being named as a defendant in the federal lawsuit, you would participating in or having official participation in that a GHI official. Your official responsibilities for the Town are limited to the state litigation. Therefore, your law firm would not be restricted under s.18 in the federal lawsuit.

[8] If your position in either the state or the federal lawsuits, or your representation of ABC changes, we advise you to seek a further opinion on those changed circumstances. We note that the constraints of c. 268A apply to you because of your municipal position and not as a result of any prior private business relationship. Issues as to the propriety of your representation of a client in connected matters may be properly considered by the Board of Bar Overseers.