In discussing with Marblehead voters the highly competitive race in the Democratic primary for 8th Essex District state representative, we were asked whether the state’s conflict-of-interest law, G.L.c. 268A, might pose a problem for one candidate in particular.
Swampscott’s Tristan Smith is the son of James E. “Jim” Smith, a founding partner of Smith, Costello & Crawford, a public policy law firm that offers lobbying and consulting services that is very much still active trying to influence outcomes on Beacon Hill.
It is natural to wonder, then, whether this might hamper Tristan Smith’s ability to perform his duties, should be elected as the next state representative from the 8th Essex District.
So, is this a serious problem?
The short answer: No. In most circumstances, Tristan Smith would, at most, need to make public, written disclosures of facts that might cause a reasonable person to conclude that any person can “improperly influence or unduly enjoy his favor in the performance of his official duties.” Even then, he would have at least some discretion over how often to make those disclosures.
How we reached this determination: The Marblehead News interviewed multiple experts on the state’s conflict-of-interest law. While they did not want to be quoted on the record, they confirmed that our reading of the relevant provisions of the law were on the mark.
The longer version of the answer: Two specific provisions of the conflict-of-interest law, §6 and §23(b)(3), are pertinent to this discussion.
To be clear, no matter whom the voters of the 8th Essex District elect, that person will required to adhere to the conflict-of-interest law. However, the work of Jim Smith and his firm – trying to shape the course of events on Beacon Hill – brings the issues addressed in these provisions into sharper relief.
What does §6 say? At first blush, §6 looks rather ominous. It speaks of violations being punished up fines of up to $10,000 or even time in prison.
But there are two key words in §6 that suggest Smith – or any other candidate, for that matter – will rarely if ever be placed in serious jeopardy of incurring those consequences. Those words?
“Particular matter.”
Under §6, for state employees – and yes, legislators qualify as “state employees” – to court trouble for activities benefiting a loved one, they must be participating in a “particular matter.”
Here’s the rub when it comes to state legislators: Voting on “general” legislation – as opposed to “special” legislation – does not qualify as a “particular matter.”
The State Ethics Commission made that clear in an advisory in 2010, which also revised the definitions of “general legislation” and “special legislation” for the purposes of c. 268A.
The new definition of “special legislation” shrinks the universe of bills that will qualify as such. (Read the advisory if you would like a full historical perspective.)
The upshot is that, now, “special” legislation includes only “legislation addressed to a particular situation, that does not establish a rule of future conduct with any substantial degree of generality, and may provide ad hoc benefits of some kind for an individual or a number of them.”
The bottom line is that Tristan Smith, or anyone else in the Legislature, will only infrequently be confronted with “special” legislation, as that term is defined under c. 268A.
Even when they are, it is likely to be abundantly clear who is receiving the “ad hoc benefits” and whether he has a close relationship with that person or people, such that refraining from participation is something to consider.
There is also another aspect to §6 that arguably further insulates Smith from having any concerns based on his father’s work.
For §6 to come into play, the elder Smith would have to have a “financial interest” in the outcome of a proposed piece of special legislation. But merely drawing a salary for lobbying services rendered likely does not satisfy this requirement.
While one might argue that if Jim Smith’s firm gets good results for one client, others will seek out its services, making Jim Smith and his partners more money, the law is concerned primarily with improper financial benefits that are direct and immediate, rather than attenuated and speculative.
Never say never, but you can probably scratch §6 as a serious concern for Tristan Smith, as it pertains to his father’s professional activities.
OK, then. What about §23(b)(3)? Tristan Smith will probably have more occasion to reflect on his responsibilities under §23(b)(3) than §6, though again, this would be true of any candidate.
This section of the conflict-of-interest law instructs state employees that they should not “act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person.”
But §23(b)(3) then provides an escape hatch: the written disclosure.
Once a legislator files such a disclosure, laying out the circumstances that might otherwise create the appearance of improper influence, he or she is free to take part in debate or vote, just like any of his or her colleagues.
Now-former state Rep. Lori Ehrlich filed just such a disclosure in February 2021, when her daughter accepted an unpaid internship with the Supreme Judicial Court.
“I anticipate in this session and in future sessions of the General Court that legislation or other matters relative to the Supreme Judicial Court and/or the Judiciary of the Commonwealth may be considered,” Ehrlich wrote. “I make this disclosure out of an abundance of caution to dispel any appearance of conflict.”
The form provided by the Ethics Commission for making disclosures under §23(b)(3) instructs legislators that they should file their disclosures with either the clerk in their particular chamber or with the Ethics Commission itself.
The instructions for completing that form make clear that the Ethics Commission is eager to offer state employees assistance with understanding their responsibilities under the law. The commission operates an Attorney of the Day hotline and also provides advice upon request by email.
Tristan Smith would also have an alternative to filing disclosures: He could decide that a particular piece of legislation on which his father’s firm had lobbied would have no impact on his constituents in the 8th Essex District and simply refrain from discussing or voting on the bill.
Asked about this issue, a spokesperson for Tristan Smith’s campaign replied by email, “Tristan will do exactly what the law requires and will seek guidance from the House Counsel and State Ethics Commission in that regard.”
The Ethics Commission’s online list of disclosures filed so far in 2022 indicates that, while a number of state senators have taken the Ethics Commission up on its offer to send disclosures directly to the commission, the prevailing practice on the House side is for state representatives to file them with the House clerk.
It was suggested to Marblehead News that state representatives may be acting on advice from House counsel by adopting this practice, but Marblehead News was not immediately able to confirm that the House’s lawyers had provided such guidance.
One other wrinkle that is worth mentioning: While Chapter 268A makes clear that conflict-of-interest disclosures should be made “in a manner which is public in nature,” the Legislature remains exempt from the state’s public records law, a situation that periodically prompts cries for reform.
What that means in this context is that once those disclosure forms are sitting in a file cabinet in the House clerk’s office, you do not have the right to demand a copy be sent to you electronically, as you would with an agency subject to the state’s revamped public records law.
Instead, if you want to review a state representative’s conflict-of-interest law disclosures, you may need to make a trip up to the State House to see them.