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Opinion

Opinion EC-COI-91-5

Date: 03/13/1991
Organization: State Ethics Commission

Section 4 of G.L. c. 268A, would prohibit outside counsel for a state agency board from representing a municipality in litigation against the state agency because, although a special state employee, he served as outside counsel to the state agency board for more than 60-days during a floating 365 day period applicable to special state employees.

Facts

Page 344 

Your law firm is outside counsel to ABC Board (Board), a division of state agency XYZ. Your firm now has been asked by a municipal entity to represent it in an administrative proceeding and litigation against XYZ in a matter unrelated to your representation of ABC. You have informed us that, if M.G.L. c. 268A permits this representation, your firm, pursuant to the Canons of Ethics and Disciplinary Rules, would seek XYZ's consent to this proposed representation. 

This Commission has previously advised you that, as counsel to the Board, you are an XYZ "special state employee" as that term is defined in M.G.L. c. 268A, s.1(o). See, EC-COI-90-5. You inform us that the matter in which you would represent the second client is not one in which you have participated[1] as counsel to the board or which has been the subject of your official responsibility.[2] As you have noted, however, the new matter is one which is pending in XYZ, the agency in which you are serving.[3]  You inform us that you will likely be considered as providing services to XYZ for a total of more than 60 days within the past 365 days, and are now considering representing the municipal entity in a lawsuit against XYZ.

Question

May an XYZ special state employee, who has already served more than 60 days within the past 365 days in that status, now represent a non-state public entity in a lawsuit against XYZ?

Answer

No.

Discussion

 As a special state employee, you are subject to the conflict of interest law, M.G.L. c. 268A. Section 4 of c. 268A prohibits a state employee from acting as an agent or attorney for anyone other than the commonwealth or a state agency in connection with any particular matter[4] in which the commonwealth or a state agency is a party or has a direct and substantial interest. 

As a special state employee, you are subject to the prohibition only in relation to a particular matter (a) in which you at any time participated as a state employee, (b) which is, or within one year has been, the subject of your official responsibility, or (c) which is pending in the same agency in which you are serving. Clause (c) shall not apply, however, in the case of a special state employee who serves "no more than sixty days during any period of three hundred and sixty-five consecutive days." (Emphasis added). c. 268A, s.4; EC-COI-85-49.  

This provision would permit you to represent the second public entity on any matter, even in a lawsuit against XYZ, as long as the 60-day period were met. Once that period were triggered, however, your status as a special state employee would no longer permit you to take on such matters. The concern addressed by s.4 is the potential for influencing pending agency matters. EC-COI-85-49. Accordingly, the 60-day rule is necessary in order to prevent the appearance of undue agency influence. Full-time state employees are, of course, prohibited by s.4 from taking on any such matters at all. The 60-day period applicable to special state employees is an arbitrary, but necessary, line drawn by the legislature to prohibit a special state employee from eventually doing what a regular state employee could not. Without the time restriction, the status of a "special state employee" would soon be rendered meaningless. For example, without the time restriction, a special state employee could work eleven of twelve months at an agency yet would be free from all of the restrictions applicable to full time employees - an incongruous result. The s.4 restriction recognizes that the opportunities to influence pending agency matters increase with the amount of time spent working for that agency. 

You maintain that the Clause (c) restriction set forth in s.4 should apply prospectively only. In other words, you believe that the Clause (c) 60-day restriction only applies from the date on which the matter in question is undertaken. According to your view, the appropriate analysis would be to start anew the 60-day period during which one is considered a special state employee each time a new matter arises without considering the services already provided by that employee in the past 365 days. However, this view of the s.4 exemption does not comport with either the intention of s.4 or the apparent meaning of the clause as previously interpreted by this Commission. 

As evidence of your position, you state that the Clause (c) restriction applies prospectively only because it refers to a special state employee who "serves" no more than 60 days, not who "serves or has served." However, this Commission has implicitly adopted a different rule - one which applies the s.4 restriction over a "floating" period (that is, looking to both prior and subsequent service) as opposed to a fixed, prospective only period of 365 days. See, e.g., EC-COI-82-49; 82-50; 82-55; 84-20; 84-129; 85-13; 85-25; 85-37; 85-39; 85-45; 85-49; 90-12; 90-16; Commission Advisory No. 1 3 (Agency) (1988). We expressly adopt that rule here. The Commission believes that the more reasonable construction is to have the 60-day restriction apply in such a way as to reduce the appearance of undue agency influence, and that the Commission's interpretation of the restriction accomplishes that goal. See, e.g., EC-COI-90-15 (the Commission is obligated to construe a statute in light of its language and the presumed intent of the legislature). 

Page 345 

One commentator has also concluded that any other construction of the restriction would have been more carefully spelled out in the statute. See, Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. Law Rev. 299, 340 (footnote 230) (1965). Buss' conclusion was based upon the counterpart language to the federal conflict statute (18 U.S.C. s.203(c) and 205) upon which c. 268A was modeled. Buss indicates that the statute itself provides "no answer more persuasive than the word 'serves' itself, which seems to suggest rendering service more than it does availability for services." 

You would, in effect, at least double the explicit statutory time period during a given one-year period. Moreover, starting the 60-day period anew each time a matter arises in XYZ would eventually lead to the very problem the Clause (c) restriction was designed to avoid. For example, if six new matters arose 60 days apart, your interpretation would permit you to work on all of those matters for other parties, yet you could still be providing services to the state agency during that time, for a total of 360 days. This, we believe, is not the intent of the restriction, and we do not perceive sufficient cause to reconsider our prior precedent. Our conclusion is consistent with the long-held policy that the provisions of the state conflict of interest law should be broadly implemented and that exemptions for special state employees should be narrowly construed. See, e.g., EC-COI-87-2; 86-7; 85-49; 84-20. Accordingly, once the 60-day period set forth in Clause (c) is reached, you may no longer rely on the s.4 exemption available to special state employees with respect to matters pending in the XYZ.   

[1] "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).

[2] "official responsibility," the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s.1(i).

[3] In a letter to you dated February 18, 1988, the Legal Division of this Commission concluded, based upon your contract with the board, that the agency you serve is XYZ, not the Board. You do not take issue with that conclusion.

[4] "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 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).

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