Opinion  EC-FD-11-2

Date:	03/18/2011
Organization:	State Ethics Commission

Pursuant to G.L. c. 268B, section 3(g), the requesting person consents to the publication of this opinion with identifying information.

Facts

A person required by G.L. c. 268B, § 5 to file Statements of Financial Interests ("SFIs") with the Commission requests guidance as to whether he must supplement his answers to SFI Question 4 for the SFIs he filed for calendar years 2006-2009.

Question 3 on the 2009 SFI form, "Positions Held," required each SFI filer to identify "each position you held in 2009 or now hold as a PUBLIC OFFICIAL or DESIGNATED PUBLIC EMPLOYEE." The SFI forms for 2006-2008 contained the same question. In response to that question, the requestor identified his current state position (and also listed his former state position, although not required to do so).

Question 4 on the 2009 SFI form directed filers to "[i]dentify any other government position(s) held in 2009 by you . . . in any federal, state, county, district or municipal agency, whether compensated or uncompensated, full- or part-time. Please review the Instructions which detail the information that should be disclosed." The 2006, 2007, and 2008 SFI forms contained the same first sentence asking filers to "[i]dentify any other government position(s) held in 2009 by you . . . in any federal, state, county, district or municipal agency, whether compensated or uncompensated, full- or part-time," but did not contain the reference to the Instructions contained in the 2009 Form. The 2009 Instructions for Question 4 specified that the filer should include "work performed pursuant to any consulting or contractual agreement with any such agency," while the Instructions for 2006, 2007, and 2008 similarly stated that the filer should include "consulting and contractual agreements with any of these agencies."

During 2006 through 2009, in addition to holding the position that required him to file SFIs, the requestor maintained a private law practice. In his private practice, the requestor provided legal counsel to the Board of a County Regional Retirement System ("Board"). The Retirement System has a number of member municipalities. As co-counsel to the Board, the requestor provided legal work and advice on any matters that appeared before the Board, and was compensated for his legal work and advice by the Board. He did not consider himself an employee of the Board and did not receive benefits, sick time, or vacation time, nor was he eligible to be a member of the Retirement System; he was an independent contractor to the Board.

The requestor did not identify his position as co-counsel to the Board in response to Question 4 on his SFIs for 2006-2009. On the SFIs for all four years he did report the income he earned in that position in response to Question 5, which asked him to identify each business with which he was associated as well as the income for each such business. The money earned from work performed for the Board was not separately identified as such, but the amount earned was included in the gross income reported for requestor's law office.

Question

Must a person required to file a Statement of Financial Interests report his position as co-counsel to a County Regional Retirement Board in response to Question 4 on the SFI form, which asks filers to "Identify any other government position(s) held in [the relevant calendar year] by you . . . in any federal, state, county, district or municipal agency, whether compensated or uncompensated, full- or part-time"?

Answer

Yes, a position as co-counsel to a County Regional Retirement Board is a government position that must be reported in response to Question 4.

Analysis

The definitions of state, county, and municipal employees for purposes of the conflict of interest law include all "person[s] performing services for or holding an office, position, employment, or membership in" a state, county, or municipal agency, "whether by election, appointment, contract of hire or engagement, whether serving with or without compensation, on a full, regular, part-time, intermittent, or consultant basis." G.L. c. 268A, § 1(d), (g) and (q). In its Advisory 06-01, "Consultants and Attorneys Who Provide Services to Government Agencies May Be Public Employees Subject to the Conflict of Interest Law," issued in August 2006, the Commission noted that the statutory definition of who is a public employee for purposes of the conflict of interest law is very broad, and expressly stated:

"Due to the broad definition of public employee in G.L. c. 268A and the multi-factor analysis [that is, the Commission's analysis for determining when an entity is a public agency], otherwise private attorneys who personally provide legal services to a public agency are public employees for purposes of the conflict of interest law, and subject to its restrictions."

There are only three definitional categories for public agencies under the conflict of interest law: state; county; and municipal agencies. EC-COI-00-2. The Commission has previously determined that a municipal Retirement Board is a municipal agency for purposes of the conflict of interest law. Id. While there may be a question as to whether a County Regional Retirement Board should be considered a municipal or a county agency for purposes of the conflict of interest law, there is no question that it is a public agency. Furthermore, under Advisory 06-01, requestor was on notice that, as a private attorney providing legal services to a public agency, he was potentially subject to the conflict of interest law in that role.

SFI Question 4 asked the filer to identify his or her other government positions, and the Instructions stated explicitly that this included part-time positions performed pursuant to consulting and contractual agreements with public agencies. The requestor's arrangement with the Board was just such an arrangement. As such, it should have been reported on the requestor's SFI forms in response to Question 4. The requestor's SFIs for 2006-2009 should be revised to include that information. Since Question 4 requires the requestor to report the income he received from that arrangement, the requestor should also revise his responses to Question 5 so that that income is not reported twice. These corrections should be made within 30 days of the date of this Opinion.

The requestor will be required to file an SFI this year for calendar year 2010, pursuant to G.L. c. 268B, § 5(b), since he held a position requiring him to file during 2010. For subsequent years, whether he will be required to file will depend on whether he holds any public office or major policymaking position in a governmental body. If the only government position that the requestor holds is his position with the Board, then the requestor will be required to file if he is designated by the Board as holding a major policymaking position. The procedures set forth in 930 CMR 2.00 govern designation of governmental positions as major policymaking positions.