August 1, 1990

 

FACTS:

Page 316

You are currently an attorney engaged in the private practice
of law. In that capacity, you represent the XYZ Corporation (XYZ)
in defense of a tort action which the City of ABC and the ABC
School Committee initiated prior to 1990. The City and the School
Committee are represented by an independent firm in this action.

You state that the parties completed discovery of the fact
portion of the case in 1989, that discovery of the expert witnesses
is continuing and that the case is scheduled for trial in 1990. You
also state that XYZ's defense does not relate to or in any way use
information relating to the structure and operation of the School
Department.

Until 1990 you served as counsel for the School Committee and,
in that capacity, represented the City and School Committee in
certain matters pending in state and federal courts. You state that
during the entire term of your employment, you were under the
immediate supervision of the general counsel of the School
Committee and reported in writing on your work activities on a
monthly basis to the City Solicitor. You further state that during
the entire term of your employment you did not have any
responsibility for, and did not participate in, representing the
City of or the School Department in the tort action, nor did you
participate in or have responsibility for any other matter
involving facts or claims similar or related to those asserted in
the tort action. You have also provided letters from the School
Committee counsel confirming that, during the entire term of your
employment with the School Committee, you did not receive any
information from any source regarding the factual or legal matters
at issue in the tort action, nor did you communicate at any time
with the independent law firm regarding the factual or legal
matters at issue in that action. Specifically, you did not receive
any information during your representation of the School Committee
which would be relevant to the factual or legal matters at issue
in the tort case or which could be used to the detriment or
disadvantage of the School Committee in that litigation.
 


QUESTION:


Does G.L. c. 268A permit your representation of XYZ in the
tort litigation?
 


ANSWER:


Yes.
 


DISCUSSION:


Following the completion of your services for the School
Committee in 1990, you became a former municipal employee for the
purposes of G.L. c. 268A, and are therefore subject to restrictions
in two sections of that law.


1. Section 18

Two paragraphs of G.L. c. 268A, s.18 are relevant to you. The
first, G.L. c. 268A, s.18(a), prohibits you from either
representing or receiving compensation from anyone other than the
City in relation to any lawsuit, controversy or other particular
matter[1] in which you previously participated[2] while serving as
a municipal employee. Section 18(a) codifies the fiduciary
relationship which a municipal employee has with his municipality,
Town of Nantucket v. Beineke, 379 Mass. 345, 349 (1979), and
prohibits a breach of that relationship with respect to those
matters on which he worked as a municipal employee. Simply stated,
a former municipal employee's loyalty must remain with the
municipality with respect to any matter in which the former
employee previously participated.

The prohibition of s.18(a) is limited, however, to those
particular matters in which the employee actually participated and
does not extend to other matters which may have been pending in his
municipal agency.

Page 317


The definition of "participate" includes personal and substantial
involvement in a matter and covers anything more than a purely
ministerial act. See generally, EC-COI-89-7; 89-26; see also,
EC-COI-83-114
(signing of a contract is personal and substantial
participation); 88-14 (recommendation on the awarding of a grant,
even though not a final decision, is "participation). Cf. EC-
COI-87-7
.

On the other hand, when an employee has had absolutely no
prior involvement through either discussion or work in a matter,
the employee will not be found to have participated in that matter.
In light of your representation that you had no prior involvement,
either through assignment or otherwise, in the tort matter, you did
not participate in that matter for the purposes of s.18(a).
Accordingly, since you had no fiduciary relationship with the City
or School Committee with respect to tort, you are not now
prohibited from representing XYZ in the tort litigation.

Section 18(b) establishes a supplementary oneyear bar on your
personally appearing in connection with matters in which, although
you did not previously participate, were nonetheless under your
official responsibility.[3]

Generally, a public employee's official responsibility is
determined by his authority to act rather than by whether he
actually exercises that authority. See, EC-COI-89-7; 89-26; 87-17.
Accordingly, the restrictions of s.18(b) become greater with
greater authority found in the former employee's position. See,
EC-COI-89-7
. Typically, a statute or other legal definition
provides a sufficient basis to delineate a public employee's
responsibilities. See, EC-COI-89-7 (by statute, a state cabinet
secretary had official responsibility to supervise his entire
agency); 89-26 (by statute, a special state employee had official
responsibility over matters delegated to others to perform); 85-50
(city charter gave city solicitor responsibility for defending all
claims); 84-48 (town by-laws authorized selectmen to settle or
defend).

Based on your representation to us, as confirmed by your prior
supervisors who were responsible for your assignments, we conclude
that you did not have official responsibility for the tort matter.
In particular, the official responsibility for the tort matter
rested with the general counsel and the independent firm to which
the City and School Committee referred the case for litigation.
Accordingly, the one-year appearance bar of s.18(b) does not apply
to you in connection with the tort matter.


2. Section 23(c)


Under s.23(c). a former municipal employee may neither

(1) accept employment or engage in any business or
professional activity which will require him to disclose
confidential information which he has gained by reason of his
official position or authority, nor

(2) improperly disclose materials or data within the
exemptions to the definition of public records as defined by
section seven of chapter four, and were acquired by him in the
course of his official duties nor use such information to
further his personal interest.

Therefore, even if a former municipal employee has neither
participated in nor has had official responsibility for a
particular matter, he may be prohibited from acting as attorney in
any case which will require him to disclose confidential
information which he gained through his prior position. For
example, if you previously reviewed a confidential memorandum to
the School Committee revealing and discussing litigation strategy
in the tort matter, you would be prohibited by s.23(c) from
representing XYZ since your duty to represent zealously the
interests of XYZ would necessarily require you to utilize the
confidential information relevant to the case. See, EC-COI-86-7
(employee may not use confidential information relating to a
competitor).

On the other hand, where you had no access as a municipal
employee to confidential information relating to tort, there is no
confidential information which you could now disclose. To the
extent that you had access to general information relating to
structure and operation of the School Department, that information
may very well be a public record and therefore exempt from G.L. c.
268A, s.23(c). Even assuming, for the sake of argument, that the
School Department's structure and operation could be regarded as
confidential, s.23(c)(1) prohibits you from engaging in a
professional activity which requires you to disclose that
information. Given your representation to us that your
representation of XYZ does not relate to or in any way use
information relating to the structure and operation of the School
Department, we conclude that s.23(c)(1) does not prohibit your
representation of XYZ in the tort matter.[4]

Page 318

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[1] "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).

[2] "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).

[3] "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).

[4] The advice in this opinion is limited to the application
of G.L. c. 268A to your facts and does not purport to reach any
conclusions with respect to the application of the Code of
Professional Responsibility.

 

End Of Decision