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Opinion

Opinion EC-COI-88-21

Date: 09/14/1988
Organization: State Ethics Commission

A state employee who is an attorney and also services as a city conservation commissioner is subject to several provisions of 268A. Section 4 allows the state employee to hold a municipal position provided that he does not vote or act on any matter within the purview of his state agency or over which he has official responsibility. As a municipal employee under section 17 he may not represent private clients: (1) before other municipal agencies or (2) on appeals of municipal decisions to state agencies. Section 19 prohibits him from participating as a commissioner in any matter which could directly or indirectly affect the financial interest of his law firm. Once he leaves his state job, he would be subject os sections 5 and 23 as a former state employee. His law firm would not be subject to section 18(d/c) and section 5(d/c) since he would be an associate attorney in the firm. 

Facts

You are an attorney with a state agency. You also currently serve as a conservation commissioner for a city. This position does not have special municipal employee status. You are considering leaving state service and becoming an associate in a private law firm that represents clients before municipal agencies of the city you serve and that represents clients before state agencies on matters involving the city.

Questions

1. May you, consistent with the conflict of interest law, appear before the city's conservation commission or other municipal agencies on behalf of private clients? 

2. May you, consistent with the conflict of interest law, appear before state agencies such as the Appellate Tax Board, the Alcoholic Beverages Control Commission, or the Massachusetts Housing Appeal Commission on behalf of private clients who are appealing decisions of the city's municipal agencies? 

3. Would the conflict of interest law constrain the partners or other employees of the firm that would employ you in their representation of clients before the municipal agencies or before state agencies on behalf of private clients on matters involving the city?

Answer

1. No, as the representation would inevitably involve matters of direct and substantial interest to the city. 

2. No, as the representation would inevitably involve matters of direct and substantial interest to the city. 

3. No, as the restrictions found in G.L. c. 268A, s.s.5 and 18 extend only to the partnership relationship.

Discussion

 1. Current Municipal Employee

 In your capacity as a member of the city's conservation commission, you are a municipal employee for the purposes of the conflict law, See, G.L. c. 268A, s.1(g). Sections 17,19 and 23 would apply, therefore, to your situation.

 Section 17

 This section prohibits you, in relevant part, from directly or indirectly receiving or requesting compensation from anyone other than the city in relation to any particular matter[1] in which the city is a party or has a direct and substantial interest. For example, you may not represent clients before the city's conservation commission since those matters would be particular matters in which the city is a party or has a direct and substantial 

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interest. This prohibition effectively precludes any case work you might like to do, on behalf of anyone other than the city, before city's boards and agencies or any case work on behalf of private entities you might like to do before state agencies such as the Appellate Tax Board, the Alcoholic Beverage Control Commission, or the Massachusetts Housing Appeal Commission where a decision of a municipal agency would be in controversy. It is hard to hypothesize a 'particular matter' involving municipal action in which it can be said with assurance that the municipal interest is indirect or insubstantial." Braucher, Conflict of Interest in Massachusetts, in Perspectives of Law: Essays for Austin Wakeman Scott 1,16 (1964); EC-COI84-117. In addition, this section of the statute would require you to guard against the indirect receipt, through your associate's salary, of compensation in these matters, See, EC-COI-83-128; EC-COI-81-12.

 Section 19

 Under.19, you are prohibited, in relevant part, from participating[2] as a municipal employee in a particular matter in which you, your immediate family[3] or a business organization in which you are serving as an officer or employee has a financial interest. This section would be implicated if members of the law firm that employs you represented parties before the conservation commission while you were a member of the Commission. See, In the Matter of Henry A. Brawley, 1982 Ethics Commission 84. 

One of the s.19(b)'s exemptions may be available to you, however, if you advise your appointing authority of the nature and circumstances of the particular matter and disclose your financial interest. Your appointing official may then make a written determination that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the municipality may expect from you. You must abstain from all matters covered by this section unless and until such a determination is made.

 2. Current State Employee

 For the purposes of the conflict of interest law, as a full time attorney with a state agency, you are a state employee. See, G.L.c. 268A, s.1(q). Accordingly, s.4 is applicable to your situation. This section indicates that you may hold elective or appointive office in the city provided that, in that office, you do not vote or act on any matter which is within the purview of the state agency by which you are employed or over which you have official responsibility. See, EC-COI-8-62. You may not, for example, participate in city's conservation commission decisions on G.L. c. 61 land in the city in that the state is involved in the classification of forest lands and the removal of lands from that classification.

 3. Former State Employee

 Once you terminate your state employment, you will be a former state employee for the purposes of G.L.c. 268A.

 Section 5(a)

 Section 5(a) prohibits a former state employee from acting as an agent for or receiving compensation directly or indirectly from anyone other than the state in connection with any particular matter in which the state or a state agency is a party or has a direct and substantial interest and the matter was one in which the employee officially participated. This section focuses on matters in which you participated as a state employee. A particular matter may include a recommendation, decision, or determination. For example, under this section, if prior to leaving the state agency, you recommended litigation in a particular case, you would be forever barred from participating in any aspect of that matter. In addition, this section of the statute would require you to guard against the indirect receipt, through your associate's salary, of compensation in these matters.

 Section 5(b)

 Section 5(b) prohibits a former state employee from personally appearing before any court or agency of the Commonwealth within one year after leaving state service in connection with any particular matter in which the state or a state agency is a party or has a direct and substantial interest and that matter was under the official responsibility of the employee within two years prior to the termination of such state employment. In other words, the date you terminate from state service would determine the two year period in which particular matters under your official responsibility would count for the purposes of this section. See, EC-COI-82-138. You would be prohibited from personally appearing, for one year, as an agent of anyone other than the state, before any court or state agency in connection with any particular matter which was under your responsibility at the state agency for the two years prior to your leaving state employment. For example, if you had official responsibility for several attorneys or paralegals who made litigation decisions, you may not receive compensation from anyone other than the state and you may not personally appear before any state agency for one year after you terminate state service, in connection with these matters.

 Section 23

 Section 23, the standards of conduct provision, would also apply to you as a former state employee. Section 23(c) prohibits a former state employee from disclosing 

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confidential information which was acquired in his state position or from using such information to further his personal interest. EC-COI-85-23

You should also be aware that issues under the standards of conduct provision might be raised by your appearance before your former agency. Section 23(b) (3) applies to a current state employee who deals with you if that employee's actions could reasonably appear to be improperly affected by a prior business relationship. For example, this section might present issues for any state employee who your co-worker or subordinate if that employee unduly favors you in his or her official acts.

 4.Employer of a Current Municipal Employee and a Former State Employee

 Although G.L. c. 268A, s.18 places restrictions on the partners of a former or current municipal employee, none of these restrictions are applicable to the employer of a former or current municipal employee. The relationship you would have to this firm appears to have none of the characteristics of partnership and, as a result, s.18(d)'s restrictions are not implicated in this situation. Similarly, although G.L. c. 268A, s.5 places restrictions on the partners of a former state employee, they would not be applicable here.[4]   

[1] "Particular matter," 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 count 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). 

[2] "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j). 

[3] "Immediate family," the employee and his spouse, and their parents, children, brothers and sisters. G.L. c. 268A, s.1(e). 

[4] You should note that partnership status may be easily acquired if, for instance, a group create a public appearance of a partnership. See, e.g., EC-COI-84-78; EC-COI-80-43.

End Of Decision

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