Docket No. 581

In the Matter of C. Samuel Sutter


Date: January 20, 1999


DISPOSITION AGREEMENT


This Disposition Agreement ("Agreement")is entered into
between the State Ethics Commission ("Commission") and C. Samuel
Sutter ("Sutter") pursuant to Section 5 of the Commission's
Enforcement Procedures. This Agreement constitutes a consented to
final order enforceable in the Superior Court, pursuant to G.L. c.
268B, s.40).

On February 10, 1998, the Commission initiated, pursuant
to G.L. c. 268B, s.4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by
Sutter. The Commission has concluded its inquiry and, on July 22,
1998, found reasonable cause to believe that Sutter violated G.L.
c. 268A.

The Commission and Sutter now agree to the following
findings of fact and conclusions of law:

1. Sutter was, during the time relevant, a Bristol County
assistant district attorney ("ADA").[1/] As such, Sutter was a
state employee as that term is defined in G.L. c. 268A, s.1.

2. Casey & Thompson P.C. is a law firm practicing in
Bristol County. John Casey ("Casey")and Bruce Thompson ("Thompson")
are shareholders in the firm.[2/]

3. In December 1994, Sutter solicited legal advice from
Casey concerning his recent separation from his wife.[3/] Between
December 1994 and March 14, 1995, Sutter and Casey consulted on
several occasions regarding this matter.

4. On March 14, 1995, Sutter as an ADA represented the
Commonwealth regarding a motion to dismiss in the district court as
to which Thompson represented the defendant.[4/]

5. As of March 14, 1995, Sutter was still consulting with
Casey regarding the above-described personal matter, and he
expected that the law firm of Casey & Thompson would represent him
on that matter if it continued. [5/]

6. Sutter did not disclose to his appointing authority,
the District Attorney ("the DA"), his private relationship with the
law firm of Casey & Thompson.

7. General laws chapter 268A, s.23(b)(3) prohibits a
state employee from acting in a manner which would cause a
reasonable person, having knowledge of the relevant circumstances,
to conclude that any person can improperly influence him 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.

8. By participating as an ADA in a matter in which the
law firm of Casey & Thompson had an interest at a time when he had
through his dealings with Casey a private relationship with Casey
& Thompson in a personal matter, Sutter acted in a manner which
would cause a reasonable person with knowledge of all the relevant
circumstances to conclude that the attorneys at Casey &

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Thompson could improperly influence Sutter or unduly enjoy his
favor in the performance of Sutter's official duties, thereby
violating G.L. c. 268A, s.23(b)(3). [6/ 7/]

9. By way of mitigation, Sutter notes that on March 14,
1995, he was filling in the district court, received several files
scheduled for hearing or trial for that day for the first time on
that morning, and had no prior knowledge that Thompson would be
representing the defendant until shortly before the hearing began.
According to Sutter, due to the time pressures of handling several
cases that day on short notice and because he had been dealing only
with Casey about his personal matter, it did not occur to him that
his litigating a matter with Thompson would create an appearance
problem.

The Commission is not unmindful of the difficulties faced
by an ADA in district court session and does find these
circumstances to be somewhat mitigating. Nevertheless, it concludes
that he had the opportunity and obligation to inform the judge that
he had a conflict, obtain a continuance for the purpose of
disclosing the conflict to the District Attorney, and have the
District Attorney decide who should handle the matter.[8/]

10. Sutter cooperated with the Commission's
investigation.

In view of the foregoing violation of G.L. c. 268A by
Sutter, the Commission has determined that the public interest
would be served by the disposition of this matter without further
civil penalty. In disposing of this matter by this disposition
agreement, Sutter waives all rights to contest the findings of
fact, conclusions of law and terms and conditions contained in this
Agreement in this or any other related administrative or judicial
proceedings to which the Commission is or may be a party.

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

[1/] From January 1994, to February 6, 1995, Sutter was the
Supervisory ADA at the Attleboro District Court. On February 6,
1995, Sutter was transferred to Superior Court. He continued to
appear in the Attleboro District Court to fill in for ADAs who were
ill or on vacation, but anew Supervisory ADA was appointed for the
Attleboro District Court.

[2/] The other major shareholder of the firm is not relevant
to these proceedings.

[3/] They had no prior attorney-client relationship.

[4/] The defendant was being prosecuted for operating under
the influence of alcohol. On February 28, 1995, Thompson filed a
motion to dismiss the case on various grounds. On March 14, 1995,
Sutter and Thompson engaged in an evidentiary hearing which
involved presenting witnesses and making oral arguments regarding
the motion. After the hearing, the judge took the matter under
advisement. While the matter was under advisement. Sutter took
steps so that the matter would be appealed in the event that the
judge allowed the motion. The judge did allow the motion to
dismiss, the Commonwealth did appeal, and the judge's decision was
eventually reversed by the Appeals Court and the case was remanded
back to the district court.

[5/] The law firm of Casey & Thompson did continue to
represent Sutter. Sutter has paid for a substantial portion of
these services and intends to pay the outstanding balance.

[6/] Section 23(b)(3) provides in relevant part: "It shall be
unreasonable to so conclude if such officer or employee has
disclosed in writing to his appointing authority or, if no
appointing authority exists, discloses in a manner which is public
in nature, the facts which would otherwise lead to such a
conclusion."

[7/] There is no evidence to indicate that Sutter provided
Casey & Thompson with any preferential treatment or that he
conducted himself other than in a professional manner regarding the
above described evidentiary hearing-

[8/] As a matter of public policy it is important that public
officials not engage in activity which creates the appearance that
their integrity has been undermined. In a recent decision and
order, In re Scaccia. 1996 SEC 838, the Commission stated its
position:

"Section 23(b)(3) is concerned with the appearance of a
conflict of interest as viewed by the reasonable person,
not whether the [public employee or official] actually
gave preferential treatment. The Legislature, in passing
this standard of conduct, focused on the perceptions of
the citizens of the community, not the perceptions of the
players in the situation." In re Hebert, 1996 SEC 800.
[I]n applying s.23(b)(3) to a public employee, [the
Commission] will evaluate whether, 'due to his private
relationship or interest, an appearance arises that the
integrity of the public official's action might be
undermined by the relationship or interest.' In re
Flanagan, 1996 SEC 757. See also In re Antonelli, 1982
SEC 10 1, 110 (evaluating precursor of s.23(b)(3),
Commission indicated major purpose of section to prohibit
public employee from engaging in conduct which will raise
questions over impartiality or credibility of his work).
Id. at 848.

This policy concern is especially applicable to our criminal
justice system where appearances of conflict of interest must be
avoided if our citizens' confidence in the integrity of the system
is to be maintained.

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End of Decision