September 23, 1998


FACTS:


You are employed as an attorney by the Massachusetts state
agency XYZ ("XYZ State Agency" or "XYZ"). Your XYZ job
responsibilities include your representing XYZ in discrimination
proceedings filed with the Massachusetts Commission Against
Discrimination ("MCAD") by XYZ employees against XYZ.

Outside your work hours for XYZ State Agency, you engage in
the private practice of law. In your law practice, you wish to
represent private clients in their claims of unlawful employment
discrimination against their private (not public agency) employers.
As discussed in more detail below, such claims must be filed with
the MCAD.


QUESTION:


Does G.L. c. 268A permit you, during your own time, to engage
in the private practice of law representing private clients in
their claims of unlawful employment discrimination against their
private (not public agency) employers filed and pending with the
MCAD (hereinafter, Cases) while you are also a full-time employee
of XYZ State Agency?


ANSWER:


No, because the MCAD has a direct and substantial interest in
such Cases.[1]


DISCUSSION:


A. Overview of MCAD Process


The MCAD, established by G.L. c. 6, s. 56, is composed of
three, full-time Commissioners and their staff members. The MCAD's
jurisdiction includes discrimination based on race, color,
religious creed, national origin, ancestry, age, sex, sexual
orientation, handicap and, to a limited extent, the status of
having a criminal record. G.L. s. c. s. 151B, s. 4. In this
overview, we will focus, in particular, on the MCAD's process as it
relates to Cases such as those you wish to undertake in which
complainants are represented by their own attorneys.[2]

The MCAD is authorized, pursuant to G.L. s. c. s. 151B
(sometimes, "Statute") and its implement-ing regulations, 804 CMR
s. 1.00 ("Regulations"),[3] to receive, investigate, issue
investigative dispositions, conduct hearings about and adjudicate
complaints of unlawful discrimination and to order a broad range of
remedies therefor. G.L. c. 151B, s. 3, 5; 804 CMR s. 1.03(2),
1.08, 1.10, 1.11, 1.13-1.16. At any stage while a matter is
pending before the MCAD, the MCAD may seek injunctive relief. G.
L. c. 151B, s. 5.[4]

Among those who may file complaints with the MCAD are:
persons aggrieved or their duly authorized representatives, the
Attorney General, the MCAD, employers whose employees refuse to
cooperate with the provisions of c. 151B, and organizations whose
purposes include the elimination of discrimination, some of whose
members are aggrieved. G.L. c. 151B, s. 5; 804 s. CMR s. 1.03(1).
Complainants, not their attorneys, must sign and verify their
complaints, G.L. c. 151B, s. 5; 804 CMR s. 1.03(3); their attorneys
must file appearances. G. Napolitano, An Introduction to the MCAD
Case Processing System
, Meet the MCAD '97 - Trends, Tips and
Practical Advice from Staff of the MCAD s. 2.3, MCLE Publication
No. 97-15.03 (1997). Complaints must be filed with the MCAD
within six months of the unlawful conduct. G.L. s. c. s. 151B, s.
5; 804 CMR s. 1.03(2).

The Statute "creates a parallel judicial and administrative
enforcement scheme." 45 S. Moriearty, J. Adkins & S. Lipsitz,
Employment Law, Massachusetts Practice, s. 8.38 (1995). Although
complaints of discrimination must be filed with the MCAD as a
prerequisite to a filing with the superior court, after filing, the
complainant may elect to withdraw the matter from the MCAD by
filing a civil action with the superior court pursuant to G.L. c.
151B, s. 9.[5] If such election is made, the MCAD is required to
dismiss the administrative proceeding.[6] G.L. s. c. s. 151B, s. 9;
804 CMR s. 1.13(2)(d). If the matter is not removed to superior
court, it generally proceeds through the MCAD, as described below.


Investigation and Initial Determination


After a complaint is filed, the MCAD's Investigative Unit
screens it to assure that it meets minimal jurisdictional
requirements. Napolitano, supra, s. 2.1-2.3. An Investigating
Commissioner is assigned to the Case and notifies the respondent of
the complaint. 804 CMR s. 1.03(6). The respondent has 21 days to
serve an answer on the MCAD and the complainant. 804 CMR s.
1.03(7).

The Investigative Unit then undertakes its investigation,
whose purpose is to enable the Investigating Commissioner to
determine whether or not "probable cause" exists, i.e., whether
there is "sufficient evidence upon which a fact-finder could form
a reasonable belief that the respondent committed an unlawful
practice." 804 CMR s. 1.13(7)(a). During its investigation, the
MCAD has a wide range of powers to gather information. MCAD
investigators may conduct initial investigative confer-ences with
the parties; conduct on-site visits; interview witnesses and
request documents; issue subpoenas to compel attendance of
persons and production of documents; issue interrogatories;[7] when
necessary to preserve evidence, depose witnesses; and conduct
informal fact-finding conferences, at which there are no
stenographic records or sworn statements. 804 CMR s. 1.08, 1.10,
1.11.

You characterize as "limited" the role of private attorneys
prior to the MCAD's public hearing of a Case. For example, during
the investigation, the parties have very limited rights to conduct
their own discovery.[8] Even at fact-finding conferences, the role
of the parties' attorneys is limited. L. s. Girton, Pursuing
Claims at the Massachusetts Commission Against Discrimination
, 75
Mass. L. Rev. at 152, 158-159 (1990). While they may make opening
and closing statements and propose questions and lines of inquiry
to the MCAD's investi- gator, they may not ask questions of the
witnesses. 804 CMR s. 1.08(2), (3); Girton, Id.

At the culmination of the investigation, the MCAD investigator
recommends an investigative dis-position of the Case to the
Investigating Commissioner, who then issues a determination as to
probable cause (PC) or lack of probable cause (LOPC) or some other
disposition, e.g., lack of jurisdiction. The complainant has
limited rights to seek reconsideration of an LOPC determination
through a "preliminary hearing" before the Investigating
Commissioner. G.L. c. 151B, s. 5; 804 CMR s. 1.13(7)(c),
(7)(d); Girton, supra at 159. The complainant has no right to
appeal any such LOPC determination to the other two Commissioners
or to court under G.L. c. 30A. However, if not time-barred, the
complainant may commence a civil action for damages and/or
injunctive relief in superior court under G.L. c. 151B, s. 9.


Conciliation


If there is a PC determination, the MCAD is first required to
"endeavor to eliminate the unlawful practice complained of . . . by
conference, conciliation and persuasion" (collectively,
"conciliation"). G.L. c. 151B, s. 5; 804 CMR s. 1.13(8)(a). The
Investigating Commissioner or, more typically, his or her
designee/MCAD attorney conducts the conciliation session(s).
Napolitano, supra at 36, s. 3.1. If conciliation efforts result in
a settlement agreement, the MCAD dismisses the complaint, and the
agreement constitutes a final MCAD order, which can be judicially
enforced. 804 CMR s. 1.13(6).[9]


Public Hearing, Decision and Remedies


If conciliation efforts fail, the Investigating Commissioner
certifies the Case for public hearing, and the respondent must
answer the complaint, as it may have been amended, within 15 days.
G.L. c. 151B, s. 5; 804 CMR s. 1.15(2)(a). A Commissioner (who had
no prior involvement with the matter) is assigned as the Hearing
Commissioner and conducts the public or adjudicatory hearing in
accordance with G.L. s. c. s. 30A. G.L. c. 151B, s. 3, Subsection
6.

This stage of the MCAD proceedings has been described as
"administrative litigation." Napolitano, supra at 39, s. 4.0. The
parties may engage in discovery, including serving interrogatories,
serving subpoenas requiring the attendance and testimony of
witnesses and the production of documents and taking depositions;
the Hearing Commissioner may conduct pre-hearing conferences and
issue pre-hearing orders; and the parties' attorneys present their
cases at the public hearing, during which they may cross-examine
witnesses.[10] 804 CMR s. 1.09(2), 1.10(1), 1.15(3); 45 Moriearty,
Adkins & Lipsitz, supra, s. 8.46; Napolitano, supra at 39, s. 4.0.
The Investigating Commissioner may participate in the public
hearing, but only as a witness. G.L. s. c. 151B, s. 5. See East
Chop Tennis Club v. Massachusetts Comm'n Against Discrimination,

364 s. Mass. 444, 447 (1986). The MCAD is not bound by the rules
of evidence, except for the rules of privilege. G.L. c. 151B, s.
5; 804 CMR s. 1.15(14).

After the public hearing, the Hearing Commissioner issues a
written decision, which may include orders. 804 CMR s. 1.15(20).
If the complainant prevails, the MCAD can order "broad and
comprehensive remedies," including back pay and benefits, damages
for emotional distress, injunctive relief, other make-whole relief
and compliance reporting. 45 Moriearty, Adkins & Lipsitz, supra,
s. 8.51. Those remedies may redress and/or correct the specific
harm to the complainant and provide broader, prophylactic relief
for those similarly situated. See, e.g., Katz v. Massachusetts
Comm'n Against Discrimination
, 365 Mass. 357, 365-366 (order
requiring equal opportunity advertising); McKinley v. Boston Harbor
Hotel,
14 Mass. Discrim. L. Rep. 1226, 1246 (1992) (order requiring
training program, including civil rights and AIDS awareness).


Appeal


The losing party may appeal the decision and order(s) to the
other MCAD Commissioners[11] and, thereafter, to superior court
under the standards of G.L. c. 30A, s. 14(7). G.L. c. 151B, s.
3(6), 6; 804 CMR s. 1.16(1), 1.17.[12] On appeal to the superior
court, the MCAD is named as defendant. If the prevailing party is
not also named, that party may intervene as a defendant."
Massachusetts Practice, supra at 398, s. 8.47. Although the MCAD
may designate the prevailing party's attorney as its agent for
purposes of defending its decisions and any orders, we are informed
that it rarely does so. 804CMR s. 1.17(2).


Judicial Enforcement


As noted above, either party to an MCAD consent order, a
pre-determination settlement effected through conciliation (or
otherwise) or an MCAD final decision and order(s) may file a
complaint with the MCAD alleging violations thereof, and the MCAD
is required "to proceed to obtain enforcement by filing a petition
in the appropriate state court" through one of its own attorneys or
by designating counsel for the party aggrieved as its agent. G.L.
c. 151B, s. 6; 804 s. CMR s. 1.18(2).[13]


B. Application of G.L. c. 268A


As an XYZ employee, you are a state employee for purposes of
G.L. c. 268A. As such, your conduct is regulated by G.L. c. 268A,
the conflict of interest law. In particular, s. 4 is relevant to
your request.

Section 4 contains two distinct operative provisions that
generally regulate what a state employee may "do on the side."
Section 4(a) provides that "no state employee shall otherwise than
as provided by law for the proper discharge of official duties,
directly or indirectly receive or request compensation from anyone
other than the commonwealth or a state agency, in relation to any
particular matter[14] in which the commonwealth or a state agency
is a party or has a direct and substantial interest." Section 4(c)
provides that "no state employee shall, otherwise than in the
proper discharge of his official duties, act as agent or attorney
for anyone other than the commonwealth or a state agency for
prosecuting any claim against the commonwealth or a state agency,
or as agent or attorney for anyone in connection with any
particular matter in which the commonwealth or a state agency is a
party or has a direct and substantial interest."

Section 4 broadly and uniformly restricts all regular (as
distinguished from "special")[15] state employees (other than
legislators). Accordingly, if any state agency has a direct and
substantial interest in or is a party to a particular matter, then
s. 4's prohibitions apply; it makes no difference whether it is
the regular state employee's own state agency or another state
agency that has the interest or is a party.[16]

MCAD proceedings and the concomitant submissions,
determinations and decisions are particular matters. You seek to
be compensated by and act as attorney for private parties in
connection with such particular matters.

The critical question here is whether the MCAD is a party to
or has a "direct and substantial interest" in employment
discrimination Cases. For the reasons discussed below, we conclude
that the MCAD has a direct and substantial interest in such Cases
(and may, at some stage, become a party) and that, therefore, you
may not receive compensation from or act as attorney for
complainants in connection with such Cases.

As we wrote in EC-COI-97-2, discussed below:

When construing statutory language, we begin with the plain
meaning of the statute. Int'l Organization of Masters, etc. v.
Woods Hole, Martha's Vineyard & Nantucket Steamship Authority
,
292 Mass. 811, 813 (1984); O'Brien v. Director of DES,
393 Mass. 482, 487-88 (1984). The relevant dictionary definition
of "interest" from Webster's Third New International Dictionary
(unabridged) is "right, title or legal share in something; something
in which one has a share of ownership or control." In legal parlance,
the term "interest" is "the most general term that can be employed
to denote a right, claim, title, or legal share in something." Black's Law Dictionary. Within the context of G.L. c. 268A, s. 4, interests of the Commonwealth would include proceedings affecting the
Commonwealth's legal rights or liabilities, pecuniary interests,
property interests or proceedings where the Commonwealth would have a stake in the proceedings. See EC-COI-91-10 Commonwealth has interest if outcome would require expenditure of public funds, exposure to liability, implicate government's rights and
responsibilities); . . . . (Emphasis added.)

While merely remote, tenuous or inconsequential interests will
not make the Commonwealth's interest "direct and substantial," the
Commonwealth "may have a significant interest in a matter even when
that interest is not financial or proprietary." Buss, The
Massachusetts Conflict of Interest Statute: An Analysis
, 45 B.U.L.
Rev. 299, 330-332 (1965).[17] It is that type of intangible, but
significant, interest that can vest the Commonwealth and/or a state
agency with a "stake" in proceedings before such agency sufficient
to render the interest direct and substantial even though no legal
rights or liabilities or pecuniary or property interests of the
Commonwealth or such agency are affected and even though neither
the Commonwealth nor such state agency is a party to the
proceeding.

Since 1978, when the Commission was created and charged as the
primary civil enforcement agency under G.L. c. 268A, see G.L. c.
268B, s. 3(i),
we have engaged in a case-by-case approach when
determining whether s. 4 applies. When undertaking such analyses,
we have in mind the two actual or potential ills targeted by
Section 4: divided loyalty and influence peddling. Commonwealth
v. Cola
, 18 Mass. App. Ct. 598, 610 (1984), citing Commonwealth v.
Canon
, 373 Mass. 494, 504 (1977) (Liacos, J. dissenting); Edgartown
v. State Ethics Commission
, 391 Mass. 83, 89 (1984); Buss, supra at
323.

This section [municipal counterpart to s. 4] of the statute
reflects the old maxim that æa man cannot serve two masters.' It
seeks to preclude circumstances leading to a conflict of loyalties
by a public employee. As such, it does not require a showing of
any attempt to influence - by action or inaction - official
decisions.

Canon case, supra at 504. (Emphasis added.) See also,
EC-COI-92-36.

When reviewing litigation pending before state courts, we
have found that the Commonwealth is a party to and has a direct and
substantial interest in all criminal matters and in civil matters
in which the Commonwealth is named as a party. See EC-COI-89-31;
81-77
. Conversely, we have found that the Commonwealth would not
ordinarily have a direct and substantial interest in a civil
lawsuit between private parties merely because the litigation was
before a state court, i.e., absent some showing that the
Commonwealth would be directly affected by the outcome. See
EC-COI-91-10; 82-132; 80-54.


By contrast, when reviewing or discussing various types of
administrative proceedings, until our decision in EC-COI-97-2, we
have generally determined that such proceedings are or may be of
direct and substantial interest to the subject administrative
agency.[18] With that decision, we signaled our intention, when
presented with administrative proceedings before state agencies
involving disputes between private parties, to review them in
greater depth to determine whether the Commonwealth or the subject
state agency has a direct and substantial interest.

In EC-COI-97-2, we concluded that a state employee who was
also a private attorney "on the side" was permitted to represent
clients who were not state employees at workmen's compensation
proceedings before the Massachusetts Division of Industrial
Accidents (DIA) involving private parties (the employee/claimant
and the insurer) seeking to resolve a contested claim and entailing
one or more phases. Those phases are: (i) informal attempted
conciliation before a DIA conciliator; (ii) a conference before an
administrative law judge who (based on the parties' identifying of
the issues, summarizing the anticipated testimony, making oral
arguments and submitting documents, such as medical reports, wage
statements and affidavits from witnesses) decides whether and to
what extent relief should be granted and issues a conference order
embodying that decision; (iii) adjudicatory hearing, where the
rules of evidence apply and sworn testimony is taken, before the
same administrative law judge who presided at the conference; and
(iv) appeal to a 3-member Industrial Accident Review Board and
finally to the Appeals Court.[19] A party in interest may also seek
judicial enforcement of an administrative law judge's order. G.L.
c. 152, s. 10, 10A, 11, 11(C) and 12; EC-COI-97-2.

The MCAD proceedings under consideration here are similar to,
but distinguishable from, those DIA proceedings.[20] The MCAD
proceedings also consist of one or more phases, depending on
various variables, e.g., whether and when the Case is removed to
state court or settled; whether there is a PC or LOPC
determination; what is the MCAD's decision and order(s); whether an
appeal is instituted; and whether, at any stage, judicial
enforcement is sought. For ease of reference, we have
characterized those phases as the Investigative Phase (consisting
of Investigation and Initial Determination), the Conciliation
Phase, the Public Hearing Phase, the Appeal Phase (first internal
and thereafter to superior court) and the Judicial Enforcement
Phase as described in Part A above. As reflected by the discussion
below, it appears to us that the character and extent of
involvement of MCAD personnel in the various Phases is more
extensive and MCAD's "stake" in such proceedings is more
significant than that of a court or DIA, whose role is only "to
provide an objective and impartial forum" for private parties.

First and, perhaps most telling, in an appeal to court of an
MCAD decision and order(s), the MCAD is a necessary and active
party. The MCAD's being the party required to be named in such
appeal reflects the significance and breadth of the MCAD's role in
such proceedings even though, in practice, if the aggrieved party
fails to name the prevailing party in such an appeal, the MCAD
"file[s] a motion to dismiss for failure to name an essential
party," G. Napolitano, supra at s. 48, s. 4.10. By contrast, in
DIA proceedings, the DIA is not a required party if there is an
appeal to court of a decision of the Industrial Accident Review
Board pursuant to G.L. s. c. s. 152, s. 12(2) and G.L. c. 30A, s.
14.[21]

Second, the degree and kind of involvement by MCAD personnel
in the Investigative Phase of a Case may be so extensive that it
could be likened more to the role played by other agencies
(including law enforcement agencies) having investigative,
adjudicatory and enforcement powers. After a complaint is filed,
MCAD investigators begin their investigation and continue their
involvement until the Investigating Commissioner reaches and
issues a PC, LOPC or other determination and any "appeals"
therefrom or reconsideration thereof have been concluded. During
the Investigative Phase, MCAD personnel are authorized and/or
required to play a significant, affirmative role in a Case while
private attorneys play a limited role. Girton, supra at 158.
Those MCAD activities include conducting investigative and
fact-finding conferences and on-site visits; interviewing witnesses
and reviewing documents; by subpoena, compelling attendance of
persons and production of documents; preparing and issuing
interrogatories; and, when necessary, deposing witnesses.

By contrast, in the DIA proceedings, the administrative law
judge who makes the initial determination about granting relief
relies on presenta- tions and submissions made by the parties. DIA
personnel do not engage in independent investigation (as do MCAD
personnel during the Investigative Phase of a Case) to reach their
initial determinations.

Third, MCAD personnel may or must play other affirmative
(rather than neutral) roles during the Investigative and other
Phases. The MCAD's fashioning of broad and comprehensive range of
remedies, especially those aimed at eliminating an employer's
unlawful discriminatory practices generally, not just those
affecting the complainant, reflects the MCAD's performance of its
broader remedial charge to minimize or eliminate unlawful
discrimination, even in proceedings (such as the Cases you wish to
undertake) between two private parties. The MCAD's Investigating
Commissioner is authorized to seek "appropriate injunctive
relief," G.L. c. 151B, s. 5, "to enjoin ongoing sexual, racial or
other unlawful harassment." Girton, supra at 157. If the
Investigating Commissioner issues a PC determination, he or she is
required to endeavor to use the concilia-tion process "to eliminate
the unlawful practice," thus playing a proactive, remedial role.
The MCAD may be required to enforce a consent order or a settlement
agreement reached between the parties to a Case. 804 CMR s.
1.18(2). Also, as discussed above, the Regulations authorize the
MCAD to designate as its agent for various purposes private
attorneys representing the parties.

By contrast, DIA personnel adjudicate only the rights and
obligations of the parties before them and do not fashion
remedies to address a broader spectrum of concerns. Also, the
party in interest, not DIA, must enforce a DIA orders.

The extent of MCAD's investment in matters pending before it
is also evidenced by the character and extent of involvement of its
personnel in connection with its administrative proceedings, other
than Cases in which complainants are represented by their own
attorneys. For example, MCAD personnel assist pro se complainants
in drafting and filing their complaints. Napolitano, supra at 4-7,
s. 2.2, 2.3, and, if there is a PC determination, the MCAD assigns
an attorney to represent pro se complainants during the
Conciliation/Public Hearing Phase. G.L. s. c. s. 151B, s. 5;
Girton, supra at 160-161.[22] The MCAD's authority to initiate its
own proceedings to eradicate and remedy the effects of unlawful
discrimination also evidences the breadth of its charge and that
of its personnel. G.L. c. 151B, s. 5; 804 CMR s. 1.03(1).

As the foregoing review amply demonstrates, the MCAD
proceedings under review here are distinguishable from the DIA
proceeding addressed in EC-COI-97-2, where the DIA was only to
"provide an objective and impartial forum" akin to a court, in
adjudicating disputes between a private claimant against a private
insurer or employer. In short, in light of the considerations
above as well as the MCAD's extensive regulatory scheme, we
conclude that the MCAD has a sufficient stake in proceedings before
it to vest it with a direct and sub-stantial interest within the
meaning of s. 4. We also take this occasion to clarify that a
state agency may have a "stake" in proceedings before it that is
not financial or proprietary and that, thus far, it is only in the
singular circumstances presented in EC-COI-97-2 that we concluded
that an administrative agency would not have a direct and
substantial interest in proceedings before it.

Our conclusion is consistent with the plain language of s. 4
and the principles on which it is based as well as the weight of
our precedent. In particular, it is s. 4's prophylactic
purposes, seeking to preclude circumstances having the potentiality
(not just the actuality) of placing a state employee in divided
loyalty or influence peddling situations, that would give rise to
concern were you to represent complainants in such Cases.[23] As s.
4 targets potential as well as actual ills, it will restrict you,
as a full-time, regular state employee, from working "on the side"
representing private clients in connection with Cases just as it
would restrict a regular MCAD employee or a regular state employee
of any other state agency (including someone who never has official
dealings with the MCAD). In point of fact, because, in your XYZ
position, you regularly practice before the MCAD, the potential of
your using inside influence on MCAD employees for the benefit of
your private clients is more than theoretical. As we wrote in
EC-COI-93-5, n. 2:

In seeking to effectuate this statutory purpose [of s. 4], we
find it useful to determine the likelihood that a public employee
will have an opportunity to have dealings with government
officials on behalf of a private party. Where we find such
likelihood, we will apply the restrictions of s. 4.

Given our conclusion, we advise you that, in your private law
practice, you will be prohibited by s. 4 from representing clients
in connection with such Cases during their pendency with the MCAD,
during any injunctive or enforcement proceedings brought by the
MCAD and/or during any appeal of MCAD's decisions.[24]

We point out that, s. 4 would not restrict you from
representing clients such as those you seek to represent in
connection with actions brought in superior or federal court where
the MCAD is not a party and over which it has no jurisdiction. We
also point out that, if you were a "special state employee"[25] of
XYZ State Agency, rather than a regular state employee, s. 4 might
permit you to work "on the side" on Cases before MCAD as you have
proposed.

------------------------

[1] In addition, under G.L. 268A, s. 4, discussed below, you may
not represent a state employee in such claims against his or her state
agency-employers as they would be parties to or have a direct and
substantial interest in such proceedings.

[2] Our overview is based on the sources cited and discussions with
MCAD personnel about the agency's practice and procedures. We do
not, for example, address MCAD housing discrimination proceedings
or, except as specifically noted for purposes of comparison, MCAD
proceedings initiated by the MCAD or those involving pro se
complainants.

[3] This opinion does not reflect proposed revisions to the
Regulations that have been circulated for public comment but have
not yet been promulgated.

[4] To prevent irreparable injury, complainants' attorneys may also
seek temporary injunctive relief "during the pendency of or prior
to the filing of a complaint with" the MCAD. G.L. s. c. s. 151B,
s. 9.

[5] A complainant may remove the matter within 90 days after filing
the complaint only with the consent of the Investigating
Commissioner; thereafter, the complainant may remove the matter as
a matter of right. G.L. c. 151B, s. 9. In Lavelle v.
Massachusetts Comm'n Against Discrimination
, 426 Mass. 332 (1997),
the court held that, in certain types of cases, respondents may
seek de novo judicial relief in the form of a jury trial, but only
after having fully exhausted the MCAD's administrative remedies.

[6] Superior court actions must be filed within three years of the
unlawful conduct. G.L. c. 151B, s. 9. The MCAD has taken the
position in Alves v. Town of Freetown, 17 Mass. Discrim. L. Rep.
1627 (1995) that, if complainants file their actions in federal
court, that may result in the MCAD's dismissal of the correlative
MCAD matter. See also Christo v. Edward G. Boyle Ins. Agency, 402
Mass. 815 (1988).

[7] The parties or their attorneys may assist by drafting
interrogatories for submission to the adverse party.

[8] A party may be permitted to conduct discovery "upon a showing
that a witness or evidence may become unavailable." 804 CMR s.
1.09(1)(a).

[9] Under MCAD Policy No. 96-1, the agency also recognizes
privately arranged alternative dispute resolution through mediation or
arbitration. Napolitano, supra at 37, s. 3.2.

[10] We note that the Regulations provide that the complainant's
counsel may be designated as the MCAD's agent "for purposes
including conciliation, presentation of the case at public hearing,
or enforcement of a pre-determination settlement, consent order, or
final order of the [MCAD]" if, upon motion of the complainant's
counsel, the MCAD determines that the interests of the complainant
and the MCAD "are without conflict." 804 CMR s. 1.07(5)(b). We
are informed that currently this agent-designation procedure is
rarely, if ever, used during internal MCAD proceedings but that it
is sometimes used to enforce MCAD orders in court. See also 804
CMR s. 1.17(2) and 1.18(2), discussed below, also authorizing the
MCAD to so designate private attorneys as its agents during and
after the conclusion of its proceedings.

[11] The Hearing Commissioner who heard a Case does not sit on such
appeal, but the Investigating Commissioner does.

[12] In certain circumstances, the respondent may also seek a de
novo jury trial. See n. 5.

[13] Ordinarily prevailing complainants may also file such judicial
enforcement actions without MCAD involvement. Napolitano, supra at
48, s. 4.1.

[14] "'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).

[15] "'Special state employee,' a state employee: (1) who is
performing service or holding office, position, employment or
membership for which no compensation is provided, or (2) who is not
an elected official and (a) occupies a position which, by its
classification in the state agency involved or by the terms of the
contract or conditions of employment, permits personal or private
employment during normal working hours, provided that disclosure of
such classification or permission is filed in writing with the
state ethics commission prior to the commencement of any personal
or private employment, or (b) in fact does not earn compensation as
a state employee for an aggregate of more that eight hundred hours
during the preceding three hundred and sixty-five days. . . ."
G.L. c. 268A, s. 1(o).

[16] By contrast, s. 4 applies less restrictively to special state
employees.

[17] See also Braucher, Conflict of Interest in Massachusetts, in
Perspectives of Law: Essays for Austin Wakeman Scott
3, 16 (Pound,
Griswold & Sutherland 1964), discussing s. 17, the municipal
counterpart to s. 4: "It is hard to hypothesize a 'particular
matter' involving municipal action in which it can be said with
assurance that the municipal interest is indirect and
insubstantial. But the [direct and substantial] requirement does
prevent coverage of private transactions in which the municipal
interest is remote or inconsequential."

[18] See, e.g., EC-COI-82-82 (s. 4 generally prohibits state
employees from representing private clients in proceedings before
state agencies); 82-50 (special state employee of the MCAD
prohibited from representing private clients in proceedings pending
before agency); 83-12 (state employee would be prohibited from
representing client/insured driver in a surcharge appeal proceeding
against the insurer before the Merit Rating Board were it not for
s. 4's exemption for representation of immediate family members;
84-9 (submissions and applications to and determinations of
Appellate Tax Board); 83-12 (state employee prohibited from
representing client/property owner contesting municipal tax
assessment in proceedings before Appellate Tax Board); 91-10
(proceedings before the Department of Industrial Accidents, other
than those addressed in 97-2); 79-83 (proceedings before state
agency); 82-33 (regulatory or adjudicatory proceedings before state
agencies); 89-12, 85-17, 83-59, 81-77 (applications for licenses,
permits, approvals, etc.); 93-5, 90-13 (submissions of reports).

[19] We are informed by DIA legal counsel that such court appeals
are not commonly instituted.

[20] Here and in the following discussion, when referring to DIA
proceedings, we mean the type of proceeding reviewed in
EC-COI-97-2.

[21] The DIA receives notice of such appeals, but, by way of an
answer, must only accumulate and file with the court its record of
the proceedings under review. G.L. c. 152, s. 14(2) and (4).

[22] At the Appeal Phase, the MCAD no longer provides an attorney
for the pro se litigant.

[23] In discussing the counterpart sections of the federal conflict
of interest statute, currently codified as 18 U.S.C. s. 203 and
205, on which s. 4(a) and (c) were modeled, one commentator wrote
that they were based on the principle that "public officials
should not in general be permitted to step out of their official
roles to assist private entities or persons in their dealings with
government." Perkins, The New Federal Conflict Law, 76 Harv. L.
Rev. s. 1113, 1120 (1963).

[24] While recognizing that G. L. c. 268A will bar you, in your
private practice of law, from representing employees in proceedings
against their employers filed with the MCAD, a necessary
prerequisite to their commencing judicial civil proceedings under
the Statute, we do not agree with your suggestion that your being
so barred denies your prospective private clients any
constitutional rights or remedies. They can engage other attorneys
or, if they choose, act pro se, in which event, the MCAD will
assign them an MCAD attorney for the Conciliation/Public Hearing
Phase.

[25] See n. 15.


End of Decision