Summer 2005 by lyk18840

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									                           STATE ETHICS COMMISSION BULLETIN
                      Volume XXVII Issue 2                                                                                  Summer 2005
 MASSACHUSETTS



    Commission Issues Advisories on Abutters,        SJC Rules on Commission’s
 Competitors and Elected Officials Voting on Budgets Authority to Issue Summonses

                                                                                                  I
                                                                                                      n a May 2005 decision, the Mas

T
        he State Ethics Commission re               ticipate in any discussion or vote on
        cently approved three updated               any budget item that would affect the             sachusetts Supreme Judicial Court
        educational advisories providing            family member’s salary or sign a pay-             (SJC) unanimously affirmed that the
guidance to the public officials.                   roll warrant that includes the family         State Ethics Commission has the au-
   As discussed in Advisory No. 05-                 member’s pay. For further informa-            thority to issue a summons during the
02: Voting on Matters Affecting Abut-               tion, see Advisory No. 05-03: Elected         preliminary inquiry stage of an investi-
ting or Nearby Property, a property                 Officials Voting on Budgets and Sign-         gation.
owner is presumed to have a finan-                  ing Payroll Warrants that Include Sala-          In John Doe v. State Ethics Commis-
cial interest in matters affecting abut-            ries for Family Members.                      sion, the Commission voted in 2003 to
ting and nearby property. Unless a                    As outlined in Advisory No. 05-04:          initiate a preliminary inquiry into alle-
public employee can clearly demon-                  Voting on Matters Involving                   gations of violations of the conflict of
strate that he does not have a finan-               Competitors, a public employee may            interest and financial disclosure laws.
cial interest, he should not take any               not participate in particular matters if      The plaintiff did not comply with a sum-
action in his official capacity on mat-             they also affect the public employee’s        mons seeking his testimony and filed a
ters affecting property that is near or             financial interests. There is no one          motion to quash the summons on the
directly abuts his own property. The                easy “rule” for a public employee to          ground that the commission lacked the
same rule applies to property owned                 rely upon when deciding who                   statutory authority to issue it. In re-
by a business partner; property owned               competitors are and whether the               sponse, the Commission sought an or-
by any immediate family members;                    competitors’ particular matters will          der compelling the plaintiff to comply
property owned by a private employer,               also affect the public employee’s             with the summons. A Superior Court
or prospective employer; or property                financial interest.                           judge allowed the Commission’s mo-
owned by any organization in which                     The Commission continues to up-            tion to compel the plaintiff’s testimony.
the public employee is an officer, di-              date its educational materials available      The plaintiff appealed from the Supe-
rector, partner or trustee.                         at www.mass.gov/ethics/educational            rior Court judgment and the SJC
  In situations where an elected pub-               _materials.html. Persons with ques-           granted direct appellate review. The
lic employee’s family members are                   tions about a specific situation should       full text of the SJC’s opinion may be
employed by the same city, town or                  contact the Ethics Commission at 617-         found at www.masslaw.com/signup/
agency, the employee may not par-                                                                 opinion.cfm?recID=116619.
                                                    727-0060.
                                                                                                          Table of Contents
                  Ethics Primer: State Officials Appearing                                        New Advisories Issued                 1
                     Before State Boards and Agencies                                             SJC Ruling on Summons Authority       1
  Periodically, the Bulletin will discuss a par-     law prohibits a state official from
ticular area of the conflict of interest law. The                                                 State Employee Primer: Agency         1
                                                     acting as an agent for anyone other
information provided is educational in nature        than the state in connection with any        Letter from the Executive Director    2
and should not be considered legal advice. Per-
sons with questions about a specific situation       matter in which the state is a party or      Outreach to 40 Communities            2
should contact the Ethics Commission for free        has a direct and substantial interest
confidential advice.                                 even if the state official abstains from     “Special Municipal Employees”         2
   Massachusetts General Laws c.                     taking any official action on this           Recent Enforcement Matters            3
268A, the state’s conflict of interest               matter. It also prohibits a state official
law, governs the conduct of state                    from requesting or receiving compens-        Section by Section                    3
officials. In general, § 4 of the conflict                                                        Litigation Update                     5
                                                                    Continued on page 6
State Ethics Commission Bulletin                                                                                                                                                                                                                     Page 2                                              Summer 2005
From the Executive Director




                                           ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○
                                                                                                                                                                                                                               Ten Percent of Commonwealth’s Communities Respon-
“Legislature Funds Budget Increase”                                                                                                                                                                                             sible for Forty Percent of Complaints to Commission
                                                                                                                                                                                                                                                 Commission Begins Outreach Campaign
   The Commission reached a critical
juncture in its ability to carry out its

                                                                                                                                                                                                                             T
                                                                                                                                                                                                                                    he Commission is conducting an        matter or may have a small faction of
responsibilities in FY 05. Since 2001,                                                                                                                                                                                              outreach campaign to educate
budget cuts resulted in a reduction in
                                                                                                                                                                                                                                                                          individuals who file a large number of
                                                                                                                                                                                                                                    public officials, the media and the   complaints. The Commission believes,
Commission staff from 26 to 19.
During this same period, the public’s                                                                                                                                                                                        general public in the 40 municipalities in   however, that these statistics suggest that
requests for advice increased by 11%                                                                                                                                                                                         which ten or more complaints have been       these communities need further
and complaints increased by 22%.                                                                                                                                                                                             filed over a recent two year period.         education about the conflict of interest
  Fortunately, the legislature approved                                                                                                                                                                                          Of the total number of complaints        law.
a budget of $1,415,000 for FY 06, an                                                                                                                                                                                         received (1431) during the period              Six of the targeted municipalities have
increase of 12% from the previous                                                                                                                                                                                            reviewed, 577 were from forty                already hosted educational seminars and
year’s budget of $1,265,221.                                                                                                                                                                                                 municipalities. Thus, 40% of the             several others have scheduled seminars
      This increase will help the                                                                                                                                                                                            complaints come from 11% of the              for the fall.
Commission to:                                                                                                                                                                                                               towns.                                        At the other end of the spectrum, 75%
    • respond promptly to the thousands                                                                                                                                                                                         The Commission recognizes that a          of the state’s municipalities (262) had five
    of requests for advice from public                                                                                                                                                                                       high number of complaints is not             or fewer complaints during the same
    employees,                                                                                                                                                                                                               necessarily a good indicator of systemic     period, including 61 with zero complaints.
    • resolve in a more timely manner                                                                                                                                                                                        problems in a community. For example,         For more information about sponsoring
    the hundreds of complaints that it                                                                                                                                                                                       a community may have a larger number         an educational seminar, contact the
    reviews each year,                                                                                                                                                                                                       of complaints all related to the same        Commission at 617-727-0060.
    • fulfill its new mandate to create
    reasonable exemptions consistent
    with the conflict of interest law,                                                                                                                                                                                                      Municipalities Advised to Review
    • provide 9 to 5 phone coverage
    and                                                                                                                                                                                                                                “Special Municipal Employee” Designations
    • maintain its voluntary electronic                                                                                                                                                                                      In June 2005, the Commission sent a          particularly these restrictions for their
    filing system used by 70% of all SFI                                                                                                                                                                                     memorandum to each of the                    own protection.
    filers.                                                                                                                                                                                                                  Commonwealth’s 351 cities and towns              Ultimately, it is the municipal
   The FY06 budget increase will not                                                                                                                                                                                         seeking assistance in ensuring               employee not the municipality who
address all of the Commission’s current                                                                                                                                                                                      compliance with the conflict of interest     risks prosecution for a violation of the
needs that were created in part by past                                                                                                                                                                                      law, particularly by those employees         conflict of interest law.
budget cuts along with increased                                                                                                                                                                                             who may be designated as special                 In the future, the Commission
requests for services. For example, it                                                                                                                                                                                       municipal employees, many of whom            intends to intensify its prosecution of
is unlikely that the Commission will                                                                                                                                                                                         face restrictions of which they may          violations of these sections and may
have to funds to reinstitute its                                                                                                                                                                                             be unaware. In the memorandum, the           impose civil penalties of up to $2,000
municipal seminar program. The FY06
                                                                                                                                                                                                                             Commission recommended that                  per violation, issue cease and desist
budget increase will, however, go a long
way toward providing the Commission                                                                                                                                                                                          municipalities review their special          orders, bring civil damages to recover
with an adequate level of resources.                                                                                                                                                                                         municipal employee designations and          damages or refer matters for criminal
   The Commission appreciates the                                                                                                                                                                                            return them to the Commission within         prosecution.
support of the Legislature and the                                                                                                                                                                                           60 days.                                        Commission Summary 16: Special
Governor in recognizing the need for                                                                                                                                                                                            The Commission continues to               Municipal Employees provides
this modest budgetary expansion in                                                                                                                                                                                           receive allegations of violations of the     additional information about the
order to allow the Commission to better                                                                                                                                                                                      provisions of G.L. c. 268A, including        application of the conflict of interest
fulfill its mission.                                                                                                                                                                                                         §§17 and 20, which often turn on             law to special municipal employees.
                           Peter Sturges                                                                                                                                                                                     whether a municipal employee’s               Other information is available on the
                                                                                                                                                                                                                             position has been designated as a            Commission’s           website         at
  Commission Members                                                                                                                                                                                                         “special.” For example, municipal            www.mass.gov/ethics.
     Summer, 2005                                                                                                                                                                                                            employees generally may not                    In addition, the Commission provides
                                                                                                                                                                                                                             represent special interests or private       to anyone who is covered by the
         E. George Daher, Chair                                                                                                                                                                                              employers before town boards or have         conflict of interest law free,
     Christine M. Roach, Vice-Chair                                                                                                                                                                                          additional contracts with the                confidential legal advice about how the
              J. Owen Todd
             Tracey Maclin
                                                                                                                                                                                                                             municipality unless they are special         law applies to them in a prospective
         Christopher D. Moore                                                                                                                                                                                                municipal employees. Therefore, the          situation. For further information or
                                                                                                                                                                                                                             Commission urged municipal leaders           assistance, please contact the
                Carol Carson                                                                                                                                                                                                 to make all employees aware of the           Commission at 617-727-0060.
                   Editor                                                                                                                                                                                                    conflict of interest law generally and
State Ethics Commission Bulletin                                              Page 3                                                Summer 2005


                                                        Recent Enforcement Matters
    The Ethics Commission investigates numer-             chastised the Chief for having the               The Commission found that Uong
  ous cases alleging violations of the conflict of        resident call him if he was not going         violated § 20 by, while serving as a
  interest and financial disclosure laws each year.
  While the Commission resolves most matters              to do anything about the ticket.              city councilor and a LHS guidance
  confidentially, it resolves certain cases publicly.      By asking the Chief to change a              counselor, accepting appointment to
    A decision and order concludes an adjudica-           ticket to a warning for a fellow Town         the housemaster position. An
  tory proceeding or civil trial. The decision is a       official that he knew and that he             exemption to this section of the law
  finding by the Commission that the law was or           served with on several Town                   allowed Uong to continue to hold the
  was not violated and the order determines the
  civil penalty or other remedy, if any. The              committees, Kenney violated §                 position of guidance counselor at LHS
  Commission’s decision may be appealed in                23(b)(3). Kenney could have                   after his election in 1999 to the city
  Superior Court.                                         complied with §23(b)(3) of the conflict       council. The exemption, however,
    A disposition agreement is a voluntary writ-          law by making a public written                prohibits a municipal employee who is
  ten agreement entered into between the subject          disclosure of the facts that would            elected to the city council from being
  and the Commission in which the subject ad-
  mits violating the law and agrees to pay a civil        otherwise lead to such a conclusion.          eligible for appointment or re-
  penalty. Disposition agreements are matters             Kenney made no such disclosure.               appointment to a new position while
  of public record once a case is concluded.                                                            he serves on the city council or for six
     The Commission does not comment on any               In the Matter of Chanrithy Uong               months thereafter.
  matter under investigation, nor does the office                                                          In April 2001, the Commission
  confirm or deny that it has received a specific
  complaint. The identity of any complainant is           The Commission issued a Decision              issued an opinion advising Uong that
  kept confidential.                                      and Order concluding the adjudicatory         he could not relinquish his position as
    Full texts of Decision and Orders and Dispo-          hearing of Lowell City Councilor              guidance counselor and accept a new
  sition Agreements can be found on the                   Chanrithy Uong by finding that Uong           position as an assistant principal or a
  Commission’s website, www.mass.gov/ethics.              violated M.G.L. c. 268A, the state’s          principal while continuing to serve as
                                                          conflict of interest law. Uong was            a city councilor. Following the
  Decision and Order                                      ordered to pay a civil penalty of             issuance of the opinion, Uong was
                                                          $6,000 and to cease and desist                advised that he could seek a legislative
  In the Matter of Richard Kenney                         violating the law by relinquishing his        change or appeal the decision to the
                                                          Lowell High School (LHS)
    The Commission issued a Decision                      housemaster position within 30 days.
                                                                                                                       Continued on page 4
  and Order finding that Kingston
  Selectman Richard Kenney violated §
  23(b)(3) of the state’s conflict of                                         SECTION BY SECTION
  interest law, G.L. c. 268A, by asking                             THE CONFLICT OF INTEREST LAW, G. L. c. 268A
  the Chief of Police to change a ticket
  for a Kingston resident whom Kenney                        • Section 4 of the conflict of interest law prohibits a state employee from
  knew and who was then a fellow Town                        receiving compensation from or acting on behalf of anyone other than the
  board member. Kenney was ordered                           Commonwealth in connection with any matter in which the Commonwealth
  to pay a civil penalty of $500.                            is a party or has a direct and substantial interest.
   A Kingston resident, who was at the                       • Section 6 prohibits a state employee from participating in a particular mat-
  time a member of the Silver Lake                           ter in which he has a financial interest.
  Regional School Committee, was                             • Section 19 prohibits a municipal employee from officially participating in
  stopped for not having a valid                             matters in which he has a financial interest.
  inspection sticker. He was not cited                       • Section 20 of the conflict of interest law generally prohibits a municipal
  for the sticker infraction, but instead                    official from having a financial interest in a contract made by a municipal
  was given a $25 ticket for not wearing                     agency of the same city or town.
  his seat belt. At Town Meeting,                            • Section 23(b)(2) prohibits a public employee from using his or her position
  Kenney told the Chief about the ticket                     to obtain for the employee or others an unwarranted privilege of substantial
  and asked the Chief to change the                          value not properly available to similarly situated individuals.
  ticket to a warning. The Chief told                        • Section 23(b)(3) of the conflict law prohibits a public official from acting in
  Kenney to have the resident call him                       a manner which would cause a reasonable person, having knowledge of the
  the next day. The next morning, the                        relevant circumstances, to conclude that anyone can improperly influence or
  resident contacted the Chief. He told                      unduly enjoy the public official’s favor in the performance of his official
  the Chief that he had not asked                            duties. A public official can dispel the appearance of a conflict of interest by
  Kenney to intervene on his behalf. The                     disclosing in writing to his appointing authority or, if no appointing authority
  Chief explained the process for                            exists, disclosing in a manner which is public in nature, the facts which would
  contesting the ticket; he did not change                     otherwise lead to such a conclusion.
  the ticket. At the continuation of the
  Town Meeting on May 8, 2001, Kenny
State Ethics Commission Bulletin                          Page 4                                                   Summer 2005


Continued from page 3                     was aware of these complaints.             make sure that the actual well
                                            When Capalbo was unable to reach         placement matched the placement on
superior court. Uong did not pursue       Cole by phone to inquire as to the         the application and approved the well
these options.                            payment status, Capalbo visited the        if it passed a test for water volume
  In March 2002, Uong applied for an      Park Grove Farm subdivision to speak       and quality.
LHS housemaster position. Uong won        with Cole personally. Cole was not at        By participating in well inspections
appointment and, in August 2002,          the site. Capalbo asked the foreman        that could result in Dover Water
began serving as housemaster with a       to have Cole contact him.                  Company losing customers, Fryer
starting salary of $81,033, an increase      Cole paid the $500 deductible on        participated in matters affecting his
of about $21,000 over his guidance        November 19, 2002. According to            family business in violation of § 19.
counselor salary. LHS does not have       Cole, he did so because he felt that
principals or assistant principals; the   Capalbo was linking his request for        In the Matter of Ruvane E. “Rip”
housemaster position is the high school   payment to his role as a Planning          Grossman
equivalent of the position of assistant   Board member overseeing the
principal at the middle and elementary    outstanding subdivision issues.            The Commission fined Ruvane E.
schools.                                  Capalbo continued to participate as a      “Rip” Grossman, a former consultant
                                          Planning Board member in Cole’s            to the University of Massachusetts
Disposition Agreements                    subdivision without disclosing his         Medical School (UMMS), $10,000 for
                                          private dealings with Cole.                violating the state’s conflict of interest
In the Matter of Kevin F. Capalbo            By continuing to participate as a       law. Grossman provided intellectual
                                          Planning Board member in matters           property consulting services to UMMS
The Commission fined Shrewsbury           concerning the Park Grove Farm             to help license technologies developed
Planning Board Member Kevin F.            subdivision while seeking payment for      by UMMS. At the same time, he was
Capalbo $1,000 for participating in       damages to his wife’s car from the         also consulting for CytRx Corporation,
matters involving the Park Grove          subdivision developer, Capalbo             a California intellectual property
Farm subdivision at the same time that    violated § 23(b)(3). Capalbo could         marketing firm. By bringing UMMS
he was seeking $500 from Robert           have complied with §23(b)(3) of the        and CytRx together on the licensing
Cole, one of the developers of the        conflict law by making a public            matter while he was consulting for
subdivision. Capalbo was seeking the      written disclosure of the facts that       both of them, Grossman violated G.L.
$500 for damage that Capalbo’s wife’s     would otherwise lead to such a             c. 268A, §§ 4 and 6.
car had incurred while in a parking lot   conclusion. Capalbo made no such               Grossman brought UMMS and
owned by Cole.                            disclosure.                                CytRx together to discuss marketing
     According to a Disposition                                                      UMMS’s ribonucleic acid interference
Agreement, on October 3, 2002,            In the Matter of Josef Fryer               (RNAi) technology. RNAi technology
Capalbo’s wife’s car hit a metal pipe                                                is an important life science and
in an unpaved parking lot owned by        Dover Municipal Well Inspector Josef       therapeutic technology. Grossman
Cole. That evening Capalbo, who had       Fryer paid a $2,000 civil penalty to       participated in the negotiation of a
not yet learned of the damage to his      resolve allegations that he violated the   licensing agreement between UMMS
wife’s car, voted to approve the Park     state’s conflict of interest law by        and CytRx by attending meetings,
Grove Farm subdivision, subject to 28     inspecting wells of Dover Water            making suggestions and discussing the
conditions. When Capalbo learned of       Company customers. Fryer is a one-         relevant matters as both an agent for
the damage to the car, $883.38, he        third owner, with his siblings, of Dover   CytRx and as a UMMS consultant.
sought from Cole reimbursement for        Water Company, a private family            At the time Grossman so participated,
the $500 deductible of his insurance      business that supplies water services.     he had a consulting contract with
policy. Cole declined to pay the              According to a Disposition             UMMS for a maximum of $84,000, in
deductible and told Capalbo to sue        Agreement, Fryer conducted well            addition to a consulting contract with
him.                                      inspections for an average of two          CytRx for $5,000 a month and a
  A few weeks after this conversation,    Dover Water Company customers a            “success fee” of at least $150,000.
when Capalbo called to discuss the        year who had applied to the Dover              In April 2003, UMMS signed a
issue further, Cole agreed to pay the     Board of Health for permits to dig         licensing agreement with CytRx by
$500 deductible. Capalbo sought           their own wells. If successful, the        which CytRx would market the RNAi
payment from Cole in a letter dated       applicants would receive water from        technology and UMMS would receive
November 2, 2002. In the meantime,        their own wells and would no longer        $200,000, 1.8 million shares in CytRx
there had been a number of complaints     do business with Dover Water               stock, royalty payments and other
from neighbors regarding the work         Company. Fryer reviewed well               beneficial commitments from CytRx.
being done at the subdivision. Capalbo    applications, met with the driller to         In May 2003, after senior UMMS
                                                                                                    Continued on page 5
State Ethics Commission Bulletin                                Page 5                                                  Summer 2005


Continued from page 4                          between 1995 and April 2004. During         2003 and is appealing the termination
                                               that time, Kulian:                          with the Civil Service Commission,
officials learned of Grossman’s dual           · directed the Assessor-Appraiser,          was second in command after the
role, UMMS reviewed the licensing              an employee of the Board of                 Chief. Patricia was first a reserve
agreement. UMMS determined that                Assessors, to reduce his property           officer and then a permanent patrol
it would be advantageous to leave the          assessment in 1997 and 2000 resulting       officer until her termination in June
licensing agreement in place but took          in reductions to his property tax bill      2004. She, too, is appealing the
additional actions including:                  totaling $1,401;                            termination.
· terminating Grossman’s relationship          · participated in granting himself a          Murphy violated § 19 of the conflict
with UMMS;                                     tax abatement in 2004 resulting in a        of interest law in 2000 by:
· requiring that Grossman forfeit the          reduction to his property tax bill of       · asking Lt. Mary Butler to obtain
success fee of $53,000 and 100,000             $814; and                                   medical information that would allow
shares of CytRx stock valued at                · participated in granting himself a        Patricia to attend the police academy
$240,000 as of October 2003, when              statutory exemption based on age and        in summer 2000;
the termination agreement was made;            income eligibility that could have          · communicating concerns to Lt.
and                                            resulted in a tax abatement of $500.        Butler and the Chief when Patricia
· setting restrictive terms under which             By directing the Assessor-             was not allowed to attend the
CytRx could employ Grossman in the             Appraiser to reduce his property            academy; and asking Lt. Butler and
future, ensuring that Grossman would           assessment, Kulian repeatedly used          the Chief to make an exemption for
not receive his forfeited commission           his position to get an unwarranted          Patricia that would allow her to attend.
in the future, not have contact with           privilege. By repeatedly participating         Murphy also violated §19 in 2001
UMMS about the licenses and not                in matters involving reductions in his      by asking the Chief to defer the
participate in the interpretation of the       property tax, Kulian participated in        decision to appoint three full-time
licenses.                                      matters in which he also had a              permanent officers until after Patricia
                                               financial interest.                         attended the spring 2001 police
In the Matter of Jacob Kulian                                                              academy in order to maintain
                                               In the Matter of Paul Murphy                Patricia’s seniority over the another
The Commission fined former                                                                appointee, who had previously
Middleborough Assessor Jacob Kulian            The Commission concluded public             completed the academy. Finally,
$10,215 for violating the state’s              proceedings against former Salem            Murphy violated § 23(b)(2) in 2002
conflict of interest law, M.G.L. c.            Police Captain Paul R. Murphy by            by obtaining confidential information
268A, by taking actions that reduced           approving a Disposition Agreement in        about a sexual harassment complaint
his property taxes. The Commission             which Murphy admitted violating the         Patricia filed and using it in an attempt
received $8,000 as a civil penalty; the        state’s conflict of interest law, G.L. c.   to demonstrate to the Chief that Lt.
remaining $2,215 will be reimbursed            268A, by intervening in matters             Butler, who served as the
to the Town of Middleborough for               involving his daughter Patricia, also a     department’s sexual harassment
unpaid property tax abatements and             former Salem police officer. Murphy         officer and reviewed Patricia’s
reductions Kulian was not entitled to          paid a civil penalty of $6,000.             complaint, was biased against Patricia.
receive.                                          Murphy, who was terminated as a
   Kulian was an elected Assessor              Salem police officer in September



                           Litigation Update                                                         Staff Notes
  The Executive Director, and by delegation,   in a deposition in relation to a matter         Two Northeastern University
the Commission’s attorneys, have special as-   under investigation by the
sistant attorney general status. This status                                                students are working as interns for
                                               Commission’s Enforcement Division.           six months in the Commission’s
permits attorneys to represent the Commis-
sion in court proceedings, under the over-     In response, Ms. Doe is seeking to           Enforcement Division where they
sight of the Office of the Attorney General.   quash the subpoena. In addition to           will assist in the complaint intake
The Commission has recently been involved      seeking to quash the summons, Ms.            and investigation process.
in one litigation matter.                      Doe is seeking discovery prior to               Davin Lee, a native of San
                                               testifying.                                  Francisco, is a junior majoring in
State Ethics Commission v. Jane Doe                                                         criminal justice. Dominic DeRiso,
                                                This matter is pending in the Suffolk       a sociology major, is a junior from
 The Commission filed a civil action           Superior Court. Materials in this
seeking to compel Jane Doe to testify                                                       Houston, Texas.
                                               matter are impounded.
State Ethics Commission Bulletin                            Page 6                                                   Summer 2005


Continued from page 1                       behalf of a client of his private law      matter?
ation in relation to any particular         practice before the division of
                                            industrial accidents. He may not                The state has a direct and
matter in which the state is a party or                                                substantial interest in any matter
has a direct and substantial interest.      appear, however, before the
                                            Department of Environmental                pending before, under the official
A state agency includes any board,                                                     jurisdiction of, or involving action by a
commission, authority, other state body     Protection regarding a matter
                                            involving a client.                        state agency, board, commission,
or instrumentality of the state.                                                       authority or other state body; in any
   These provisions are intended to                                                    effort to change state regulations,
                                              A state official who is not a special
prevent divided loyalties. As                                                          policies or procedures; any contract,
                                            state employee may not appear before
discussed below, they apply less                                                       court case or other legal matter in
                                            any state boards or agencies.
restrictively to “special state                                                        which the state is a party, or any ruling
employees.”                                 What is a           “special     state     or other action by a federal, regional
                                            employee”?                                 or state agency involving matters
Can a volunteer board member                                                           which are subject to regulation by the
appear before the board on which                 Some state positions are              state.
he or she serves on behalf of               automatically designated as “special
private clients?                            state employees” under the law. State      Are there any exceptions to these
  No. A state official, even one who        employees are “special state               rules for state officials who are full-
serves as an unpaid volunteer on an         employees” if:                             time employees and thus cannot
appointed board is prohibited from          · they do not receive compensation;        be “special state employees”?
acting as an agent for those clients        or
for whom he or she provides consulting      · they are not an elected official; and      There are a number of exemptions
services before the board on which          · they hold a position which allows        available to state officials including one
he or she serves. For example, an           you to work at another job during          that allows a state official to give
Ethics Commissioner who is an               normal working hours; or                   testimony under oath, one that allows
attorney may not represent a client         · they were not paid for more than         a state official to represent immediate
before the Ethics Commission.               800 working hours (approximately 20        family members and others with
                                            weeks full-time or 15 hours or less        whom he has a fiduciary relationship
   A state official always may,             per week part-time) during the             in certain circumstances and one that
however, represent him or herself           preceding 365 days. Compensation           allows a state official to hold elective
before his or her own board. For            by the day is equivalent to seven hours    or appointive office in a city, town or
example, the insurance commissioner         per day.                                   district with certain restrictions. For
may appeal an insurance surcharge.                                                     additional information, see Advisory
She may not, however participate as         What activities are considered             94-01: State Employees Acting as
commissioner in any determination or        “acting as agent”?                         Agent.
decision regarding her appeal.
                                              An agent is anyone who represents          The law also applies in a very limited
Can a volunteer board member                another person or organization in          way to legislators. A legislator may
appear before state boards other            dealings with the state. Almost any        not personally appear before a state
than the one on which he serves?            instance where you are acting on           agency for any compensation other
                                            behalf of someone else can be              than his legislative salary unless:
    Yes, if the board member is             considered “acting as an agent.” For       · the matter before the state agency
designated a “special state                 example, contacting or communicating       is ministerial, such as filing or
employee.” A special state employee         with the state on another person’s or      amending tax returns, applications for
may act as an agent before state            group’s behalf, acting as a liaison with   permits or licenses, incorporation
boards other than his own, provided         the state on another person’s or           papers or other documents; or
that he has not officially participated     group’s behalf; providing documents        · the appearance is before a court of
in the matter, the matter is not now        to the state on another person’s or        the commonwealth; or
(and was not within the past year)          group’s behalf: or serving as a            · the appearance is in a quasi-judicial
within his official responsibility or the   spokesperson before the state on           proceeding, such as adjudicatory
matter is pending in the state agency       another person’s or group’s behalf         proceedings or proceedings that are
in which he is serving. For example,        have been considered “acting as an         appealable to the courts.
an unpaid member of an advisory             agent.”
board to the Department of                                                               There may be other exceptions that
Environmental Protection, which             When does the state have a direct          would apply to a particular situation.
meets twice a week, may appear on           and substantial interest in a              Please contact the Ethics Commission
                                                                                       for advice at 617-727-0060.

								
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