April 6, 1987

FACTS:

Page 139

You formerly served as a city official until your termination
by the City Council in 1984. In March, 1987, you authorized your
attorney to initiate a lawsuit against the City and the City
Council in connection with your termination. The lawsuit alleges
damages to your reputation and violations of your civil rights, as
well as failure of the City to honor certain contractual benefit
provisions. Although you seek money damages and other favorable
determinations of your rights, you state that you do not seek
reinstatement to your former position. You indicate, however, that
you would be willing to serve as acting official if a vacancy
occured in the permanent position.

On January 2,1986, following a successful city-wide election,
you began a two-year term as a member of the City Council.


QUESTIONS:


1. Does G.L. c. 268A prohibit you from initiating a lawsuit
against a governmental body with which you are associated?
2. Assuming that you may initiate the lawsuit, what limitations
does G.L. c. 268A place on your official conduct as a member of the
City Council?


ANSWER:


1. No.

2. You are subject to certain limitations discussed below.


DISCUSSION:


As a member of the City Council, you are a municipal employee
for the purposes of G.L. c. 268A. Three sections of G.L. c. 268A
are relevant to your questions.


1. Section 17


This section prohibits a municipal employee from either
receiving compensation from or acting as agent or attorney for a
non-town party in connection with any particular matter in which
the town is a party. While your lawsuit is a particular matter in
which the City is a party, your initiating the lawsuit does not
place you in violation of s.17 because you are neither receiving
compensation from nor acting as attorney for a non-city party in
connection with the lawsuit. Moreover, even if you were acting as
your own attorney, the Commission has recognized that a municipal
employee does not violate s.17(c) by acting on his own behalf. See,
EC-COI-85-12. On the other hand, s.17 would apply if you were
representing the interests of others in connection with the
lawsuit. See, Edgartown v. State Ethics Commission, 391 Mass.
83(1984).


2. Section 19


Section 19 prohibits you from participating as a City Councillor
in any decision, determination or other particular matter in which
you have a reasonably foreseeable financial interest. Because the
lawsuit is particular matter which affects your financial interest,
you must abstain from any discussion or vote concerning the
lawsuit. To avoid the improper disclosure of litigation strategy,
you must also leave the room during such discussions or votes.

A similar restriction applies to the particular matter of the
decision to retain the current official. Because you have expressed
an interest in serving as interim official, if a vacancy were to
occur, you have a foreseeable financial interest in this particular
matter. Should you disavow any interest in serving as an official
on an interim basis, however, then the abstention requirements of
s.19 would not apply to your participation in decisions concerning
the status of the current official.


3. Section 23


This section prohibits you from using your official position to
secure unwarranted privileges or exemptions of substantial value,
and from engaging in conduct which creates a reasonable impression
that you are likely to act because of the position or undue
influence of any party or person. You are also required to refrain
from improperly seeking and disclosing confidential information.
These principles apply to you in connection with your official
dealings with other city councillors as well as with the current
official. You will comply with those restrictions by keeping
separate the course ofyour lawsuit from your exercise of official
duties as City Councillor.[1]

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[1] Should you and the City settle your lawsuit, any resulting
settlement agreement would not, as a matter of sound policy, place
you in violation of s.20. See, EC-COI-84-27.

End Of Decision