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Opinion

Opinion EC-COI-90-5

Date: 04/18/1990
Organization: State Ethics Commission

 

Partners in a law firm may perform legal services for a state agency subject to sections 6 and 23.

Facts

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You are a partner in a law firm which currently contracts with a state board (Board) to provide legal services. You indicate that the Board has divided administrative responsibilities so that your law partner, Mr. X, assists the Board staff in its prosecutorial function, while you assist the Board hearing officer and the Board in its adjudicatory function.

Question

Does G.L. c. 268A permit you and Mr. X to perform your proposed services for the Board?

Answer

Yes, subject to certain conditions.

Discussion

1. Jurisdiction

The "state employee" provisions of G.L. c. 268A apply to you and Mr. X, inasmuch as you are performing services for Board, a state agency. See, G.L. c. 268A, s.1(q). We note that the Board has also classified you as "special state employees" within the meaning of G.L. c. 268A, s.1(o). While this status will provide an exemption from certain G.L. c. 268A restrictions on your outside activities, special state employee status will not affect the application of G.L. c. 268A to the questions which you have posed.

 2. G.L. c. 268A, s. 6

 Under s.6, you are required to abstain from participating as Board counsel in any contract determination, controversy or other particular matter[1] in which either you, your partner or firm has a financial interest. Issues under s.6 may arise when you are called upon to review, in the context of an adjudication, the merits of legal issues in which Mr. X has developed and advocated as the prosecutor. Notwithstanding the application of the s.6 restriction, however, s.6 contains an exemption procedure which would permit your participation following your disclosure of the relevant facts and the receipt of written permission from your appointing official pursuant to the standards of s.6(3).[2] Because your appointing official has expressly granted permission to you and other firm employees to participate in connection with matters in which you are assigned, the abstention requirements of s.6 do not apply to you or other firm employees.

 3. G.L. c. 268A, s. 23

Under s.23(b)(2), you may not use or attempt to use your official position to secure any unwarranted privilege or exemption of substantial value for yourself or others. Further, s.23(b)(3) requires that you avoid creating an appearance of undue favoritism towards your partner in carrying out your adjudicatory functions. By disclosing the relevant facts to your appointing official, you have dispelled any appearance of favoritism. To comply with s.23(b)(2), there need to be sufficient safeguards to insure that you are not providing unwarranted favoritism to positions advocated by your partner. One such safeguard would be your refraining from any ex parte communication with Mr. X concerning matters in which you are assisting in the adjudicatory process. Another safeguard would be your basing your advice to the Board on objective standards, such as established administrative, judicial and statutory precedent. See, EC-COI-82-181, in which the Commission concluded that an assistant city solicitor could serve as a hearing officer in a civil service disciplinary proceeding in which his supervisor was an advocate subject to similar safeguards under s.23.

Conclusion

Given your receipt of a s.6(3) exemption your continued arrangement under which you perform divided administrative responsibilities for the Board is permissible under G.L. c. 268A as long as you continue to observe the safeguards of s.23. Whether your participation in any case could rise to the level of bias is more appropriately addressed through an appeal of an Board administrative decision to the courts. See, G.L. c. 30A, s.14. Finally, we do not have the authority to construe either the Code of Professional Responsibility or the Code of Judicial Conduct, and we suggest that you pursue constructions of those codes with appropriate sources. 

[1] "Particular matter," any judicial or other proceeding, application, submission, request for a ruling

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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)).

[2] Under s.6(3), an appointing official following receipt of a disclosure of a financial interest from a subordinate state employee may 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 commonwealth may expect from the employee, in which case it shall not be a violation for the employee to participate in the particular matter. Copies of such written determination shall be forwarded to the employee and filed with the state ethics commission by the person who made the determination. Such copy shall be retained by the commission for a period of six years.

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