In the Matter of Richard McClure

Appearances:  

Karen Beth Gray, Esq.
Counsel for Petitioner

Richard McClure, Esq.                        
Counsel for Respondent

Commissioners:  Charles B. Swartwood, III, Paula Finley Mangum, Martin F. Murphy, and William J. Trach[1]                                                                                                                                 

Presiding Officer:  Commissioner Paula Finley Mangum

DECISION AND ORDER

Introduction

This matter concerns allegations that Respondent Richard McClure violated the conflict of interest law, G. L. c. 268A, §17(c),[2] by, while serving as a Town of Chelmsford (“Chelmsford” or “Town”) Planning Board member, acting as attorney for clients who were not the Town or an agency of the Town in connection with two separate lawsuits (the “Recall Lawsuit” and the “Fair Street Lawsuit”) in which the Town was a party and/or had a direct and substantial interest.

Procedural Background

This matter began on September 19, 2012, with Petitioner’s issuance of an Order to Show Cause alleging that McClure violated G. L. c. 268A, § 17(c)  in 2011.  McClure answered on October 10, 2012, denying many of the allegations and that he had violated § 17(c).  On November 6, 2012, McClure filed an Amended Answer.  McClure did not plead any affirmative defenses.  On January 31, 2013, the adjudicatory hearing in this matter was held before Commissioner Mangum.  By agreement of the Parties, 47 exhibits were admitted into evidence.  The Parties also entered into Stipulations of Fact and Law.  Both Parties made opening statements.  Petitioner rested without calling any witnesses.  McClure testified as his sole witness and was cross-examined by Petitioner.  On March 6th, the Parties filed their briefs.  The Parties made their closing statements before the State Ethics Commission (“Commission”) at the Commission’s June 28, 2013 meeting. 

In rendering this Decision and Order, each undersigned member of the Commission has considered the testimony of the witness at the adjudicatory hearing, the evidence in the public record and the arguments of the parties. 

Findings of Fact

  1. McClure is an attorney with a private sole practice in Chelmsford, where he is a longtime resident.  McClure has been a practicing attorney for about twenty years.
  2. On April 5, 2011, McClure was elected to the Chelmsford Planning Board.  On April 13, 2011, McClure was sworn into office as a Planning Board member by the Town Clerk, received a large packet of printed materials from the Town Clerk and signed an acknowledgement of his receipt of a summary of the conflict of interest law for municipal employees.[3] McClure did not read the materials at that time.  McClure remained a Planning Board member during all periods after April 5, 2011 relevant to these proceedings.

The Recall Lawsuit

  1. On or about April 21, 2011, McClure, acting as a private attorney for private individuals, sent a letter on his legal practice stationery to the Chelmsford Town Clerk (“Town Clerk”) stating that he represented several registered voters of the Town with regard to an effort to recall the Chelmsford Board of Selectmen (“Board of Selectmen”).  In the letter, McClure disputed the Town Clerk’s interpretation of the Town Charter regarding the deadline for returning signed recall petitions and demanded a written acknowledgement from the Town Clerk supporting McClure’s interpretation of the Town Charter.  McClure indicated in the letter that, absent such an acknowledgement, he would “have no choice but to file a complaint for relief.”
  2. On April 22, 2011, McClure, acting as a private attorney for private individuals, filed suit against the Town Clerk, as such, in Middlesex Superior Court (“the Recall Lawsuit”), challenging the Town Clerk’s interpretation of the Town Charter sections regarding the procedure for initiating a recall election of the Town selectmen.  The complaint listed ten named plaintiffs (McClure not among them) and referenced an additional, unnamed 328 voters of the Town and was signed by McClure as plaintiffs’ attorney.  The Recall Lawsuit sought certiorari, mandamus, declaratory judgment and preliminary injunctive relief.  Also on April 22, 2011, McClure filed Plaintiffs’ Emergency Motion for Preliminary Injunctive Relief which he had signed as plaintiffs’ attorney.  The emergency motion sought a temporary restraining order prohibiting the Town Clerk from refusing to accept the filing of recall petitions prior to a certain date.
  3. A hearing on Plaintiffs’ emergency motion was held on April 22nd and McClure appeared on behalf of the plaintiffs.  Chelmsford Town Counsel (“Town Counsel”) appeared on behalf of the Town Clerk and in opposition to plaintiffs’ motion.  Just prior to the start of the April 22nd hearing, Town Counsel informed McClure of his opinion that McClure’s involvement in the Recall Lawsuit as private counsel violated the conflict of interest law given that McClure was a Planning Board member.  McClure told Town Counsel that he disagreed with his interpretation of the law, and proceeded to represent the plaintiffs at the hearing by arguing for the motion for preliminary injunctive relief.  The conflict of interest law issue was not raised at the hearing.  The court granted plaintiffs’ motion and preliminarily enjoined the Town Clerk from refusing to accept recall petitions with respect to selectmen returned and filed with the Town Clerk before the close of business on May 6, 2011, in the manner provided for in the Town Charter.
  4. On April 26, 2011, acting as plaintiffs’ attorney, McClure faxed a letter on his law practice stationery to an assistant clerk of the Superior Court in Lowell advising that he would “be appearing in your session at 3:30 p.m. requesting to be heard on plaintiffs’ emergency motion for preliminary injunctive relief” in the Recall Lawsuit and setting forth his arguments in support of the motion, which concerned the Town Clerk’s alleged failure to provide sufficient “petition blanks” to plaintiffs.  On the same date, acting as plaintiffs’ attorney, McClure filed Plaintiffs’ Emergency Motion for Further Injunctive Relief, which he alone signed and submitted with a named plaintiff as “Plaintiffs.” McClure also signed the motion a second time over his address and B.B.O. number and signed the certificate of service. The motion sought a temporary restraining order prohibiting the Town Clerk from refusing to accept for filing “exact copies” of the petition blanks previously issued by her to plaintiffs.  
  5. Also on April 26, 2011, acting as plaintiffs’ attorney, McClure filed Plaintiffs’ First Amended Petition for Certiorari, Petition for Writ of Mandamus, Complaint for Declaratory Judgment and Preliminary Injunctive Relief (the “First Amended Complaint”).  The First Amended Complaint concerned the Town Clerk’s alleged failure to issue sufficient recall petition blanks to plaintiffs and to allow the plaintiffs to reproduce exact copies of the blanks issued by her.  McClure, the sole signer, signed the First Amended Complaint “Richard P. McClure, Esquire Plaintiff Pro Se.”  The caption of both the April 26th emergency motion and the First Amended Complaint included McClure among the named plaintiffs.  The motion has “Richard P. McClure,” the name of another plaintiff and “Plaintiffs” below McClure’s signature and the amended complaint has “Richard P. McClure, Esq. Plaintiff Pro Se” under his signature.[4]  McClure’s B.B.O. number was printed at the bottom of the signature page beneath his name and McClure signed the certificate of service.
  6. Additionally on April 26, 2011, McClure, acting as plaintiffs’ attorney, emailed Town Manager Paul Cohen regarding the plaintiffs’ emergency motion for further injunctive relief stating, “I implore you not to waste anymore taxpayers’ money in frivolous defense of this action. There is zero harm to the town in allowing petitioners to make “exact copy” petitions and case law supports it. Conversely, plaintiffs will suffer irreparable harm by the town clerk’s failure to issue sufficient recall petitions. If the clerk will agree, in writing, to be subject to the exact copy statutes, I will withdraw said emergency motion.”
  7. By letter dated April 26, 2013, Town Counsel, citing and quoting G. L. c. 268A, §17(c), cautioned McClure that his representation of the plaintiffs in the Recall Lawsuit “is a clear and undeniable violation of the Conflict of Interest Law.” Town Counsel referenced and enclosed with the letter a copy of a purported complaint to the Commission concerning McClure.  Town Counsel further stated that the Town Clerk was willing, “in order to minimize the additional burden and expense,” to abide by the “exact copy” rule as set forth in G. L. c. 53, §§ 22a and 47.
  8. McClure could have ended the conflict of interest created by his acting as attorney for the plaintiffs in the Recall Lawsuit by either withdrawing as plaintiffs’ counsel or resigning from the Planning Board.  McClure did neither.
  9. On April 27, 2011, McClure, as plaintiffs’ attorney, in a faxed letter on his law practice stationery to an assistant clerk of the superior court in Woburn, informed the court that the parties had settled the matter relating to the April 26th emergency motion for injunctive relief, requested the cancellation of the hearing scheduled for that date and, “[o]n behalf of counsel,” thanked the assistant clerk for her assistance.
  10. On April 29, 2011, McClure, as plaintiffs’ attorney, by faxed letter on his law practice stationery to an assistant clerk of the superior court in Woburn, informed the court regarding the Recall Lawsuit that “a third issue has arisen that requires that I appear in your session on Monday, May 2, 2011 at 2 p.m. requesting to be heard on plaintiffs’ emergency motion for further injunctive relief,” and that he “expects to hand-deliver the pleadings later this afternoon.”
  11. According to McClure’s affidavit referred to infra, he printed and signed the name of another attorney, who, McClure testified at the adjudicatory hearing, had, on or about April 28th, agreed to represent the other plaintiffs in the lawsuit, “at the bottom of plaintiffs’ second amended complaint on behalf of [the plaintiffs]” and that this representation, along with his representation of himself as plaintiff pro se, was also on the emergency motion for further injunctive relief which was to be heard on May 2nd.[5]  (The second amended complaint and the motion are not in evidence, and the other attorney did not testify.)  McClure did not withdraw his appearance as plaintiffs’ attorney.  In any case, plaintiffs’ emergency motion for further injunctive relief was argued at hearing on May 2nd or May 3rd by McClure as plaintiffs’ attorney,[6] and the court granted the motion.  The Town Clerk moved on or about May 3rd to dissolve the temporary restraining order; and the Court granted the motion and scheduled the matter for a further hearing on May 5th.
  12. Sometime on or before May 5, 2011, the Town Clerk moved to disqualify McClure as plaintiffs’ counsel in substantial part because of the conflict of interest created by his position as an elected official of the Town, and for sanctions.  On or about May 5, 2011, McClure filed his affidavit in opposition to the Town Clerk’s motion.  McClure and Town Counsel appeared in court on May 5th for a hearing on both Plaintiffs’ Emergency Motion for Further Injunctive Relief and defendant’s emergency motion to disqualify McClure as plaintiffs’ counsel and for sanctions.  A new attorney for the plaintiffs other than McClure also appeared at the hearing.  The record is unclear as to the roles McClure and the new attorney played at the May 5th hearing, except that McClure objected to the motion to disqualify him and the parties have stipulated the motion for further injunctive relief was “brought by McClure”.  
  13. By order dated May 5, 2011, and entered May 6th, the court denied plaintiffs’ motion for further injunctive relief. The court allowed defendant’s motion to disqualify McClure and disqualified him from representing any party other than himself in the Recall Lawsuit. The court also ordered all pleadings filed by McClure as the attorney for other plaintiffs stricken and denied the defendant’s request for sanctions.  The court also denied Plaintiffs’ Emergency Motion to Amend First Amended Complaint and struck the First Amended Complaint because it was signed by McClure both as a pro se party and as attorney, and no other attorney for plaintiffs was named in or signed it.  McClure unsuccessfully attempted to appeal his disqualification as plaintiffs’ counsel by filing a G. L. c. 231, § 118 petition in the Appeals Court.
  14. McClure was not compensated for his private legal work in the Recall Lawsuit.

The Fair Street Lawsuit

  1. In August 2010, McClure, acting as a private attorney for four Chelmsford residents, filed a lawsuit in Land Court (“the Fair Street Lawsuit”).  In the lawsuit, the four plaintiffs (two neighboring couples) sought to prevent the defendant owners of an abutting parcel (the “Kohls”) from using a Town-owned “paper street” (i.e., a street shown on the subdivision plan, but never constructed) running between the plaintiffs’ neighboring parcels to access their parcel and to establish the plaintiffs’ ownership of the paper street land.  In October 2010, McClure filed an amended complaint making the Town a defendant in the Fair Street lawsuit and alleging that the Town had abandoned any rights it had in the paper street, with the exception of sewer easements, and that the plaintiffs were the rightful owners of the paper street land between their respective lots. Among other things, the lawsuit alleged that the Town unlawfully took by eminent domain an easement on Fair Street. 
  2. By letter dated May 24, 2011, Town Counsel, writing in regard to McClure’s representation of the plaintiffs in the Fair Street Lawsuit, admonished McClure that, since his election to the Planning Board, McClure “may not appear as attorney on behalf of any party in litigation in which the Town is a party,” and that his doing so violated G. L. c. 268A, § 17(c).  Town Counsel requested that McClure provide him with notice of his withdrawal as counsel for the plaintiffs in the Fair Street Lawsuit and the identity of successor counsel. 
  3. McClure could have ended the conflict of interest created by his acting as attorney for the plaintiffs in the Fair Street Lawsuit by either withdrawing as plaintiffs’ counsel or resigning from the Planning Board.  McClure did not resign from the Planning Board and did not withdraw as attorney for the plaintiffs in the Fair Street Lawsuit until ordered by the court to do so.
  4. On June 8, 2011, McClure emailed his clients stating in relevant part, “I ‘disagree’ with them demanding my withdrawal as the matter can be rectified by ‘withdrawing’ your claim against the town… HOWEVER, the town is correct in saying that it violates ethics laws for me to continue to represent you in a claim against the town. I suggest that the more practical approach would be to dismiss [sic] claim against the town and continue to represent you against Kohl [sic]. The alternative would be to retain another attorney to represent you in the existing action, which I do not believe is cost effective at this point.”  According to McClure, his clients agreed to drop their claims against the Town.  McClure did not offer to resolve the conflict by resigning from the Planning Board.
  5. McClure attempted to eliminate his conflict of interest by, as plaintiffs’ counsel, seeking to have the Town dropped as a party to the Fair Street lawsuit.  On or about June 21, 2011, McClure proposed to Town Counsel and counsel for the Kohls a stipulation of dismissal without prejudice of the Town as a defendant in the lawsuit.
  6. The Town had no objection to being dismissed as a defendant from the Fair Street Lawsuit.  The Town’s co-defendants, the Kohls, however, objected to having the Town removed from the lawsuit.  By email on June 21, 2011, the Kohls’ attorney told McClure, “The Town is a necessary party to the lawsuit and you must either dismiss the suit in its entirety or recuse yourself. I will give you until the end of today to decide, at which time I intend to file pleadings with the Court.”  In a reply email to the Kohls’ attorney on June 21st, McClure attempted to revive a prior settlement discussion; which the Kohls’ attorney immediately rejected, stating that he would file a motion to disqualify McClure unless he withdrew.  After a further exchange of emails on June 21st concerning these issues, the Kohls’ attorney emailed McClure, “The Town is a necessary party – it owns the street in question and your claim challenges that ownership.  No more emails please. Withdraw voluntarily or we will let the Court decide.”  McClure did not resolve the conflict of interest by either withdrawing as plaintiffs’ counsel or resigning from the Planning Board.
  7. On or about June 24, 2011, the Kohls filed a motion to disqualify McClure as counsel for the plaintiffs because of the conflict of interest created by his position as an elected official of the Town. On or about July 5, 2011, McClure filed plaintiffs’ opposition to the Kohls’ motion. The Town neither joined nor opposed the Kohls’ motion.
  8. Despite the motion to disqualify him, McClure continued to actively represent his clients in the Fair Street Lawsuit.  By email, dated September 27, 2011, to Town Counsel, McClure tried to convince the Town to abandon its rights to the paper street at the center of the dispute in the Fair Street Lawsuit.  McClure wrote, in relevant part, “it sounds as though the town would have no objections to abandoning any further right to the paper street (70 feet); especially given the fact that it would deny access to the Kohl’s [sic] landlocked parcel and prevent the 40B project he proposed earlier (or anything subsequent). Any sewer/water easements are protected regardless.”  McClure sent Town Counsel follow-up emails seeking a decision from the Town on his proposal on September 28th and 29th, writing “Kindly bring this to the attention of your client and advise by week’s end.”  Town Counsel responded by email on September 29th stating that he had forwarded McClure’s “settlement offer” to the Town Manager and asked that it be put on the executive session for the board of selectmen’s meeting the following Monday, October 3rd.  When McClure, in a September 29th email, requested Town Counsel’s confirmation that the settlement offer would be considered, Town Counsel replied later the same day by email, “It is the Town’s position that you are not qualified to represent the plaintiffs in this matter because you are on a town board. I have forwarded the information you have sent to me because at this point you are still in the case and I am ethically obligated to present any offers to my client.” On October 3, 2011, Town Counsel informed McClure that the Town would not negotiate with him a possible settlement of the Fair Street Lawsuit as long as he continued to serve on the Planning Board.
  9. On October 6, 2011, after a hearing at which McClure, as plaintiffs’ attorney, argued against the motion, the court allowed the Kohls’ motion to disqualify McClure from the Fair Street Lawsuit.  On October 12, the Court allowed McClure’s assented-to motion to withdraw as plaintiffs’ counsel. 
  10. McClure was compensated for his private legal work in the Fair Street Lawsuit prior to his election to the Planning Board, but was not thereafter compensated for that work.[7]

Decision

The Petitioner must prove its case and each element of the alleged violations by a preponderance of the evidence. 930 CMR 1.01(10)(o). The weight to be attached to any evidence in the record, including evidence concerning the credibility of witnesses, rests within the sound discretion of the Commission.  930 CMR 1.01(10)(n)3.

In order to have established in these adjudicatory proceedings that McClure, while serving as a Planning Board member, repeatedly violated §17(c) in connection with the Fair Street and Recall lawsuits as alleged, Petitioner must have proved, as to each alleged violation, each of the following elements by a preponderance of the evidence: that (1) McClure was a municipal employee; (2) who acted as agent or attorney for anyone other than the Town or a Town agency; (3) in prosecuting any claim against the Town, or in connection with any particular matter in which the Town was a party or had a direct and substantial interest; (4) otherwise than in the proper discharge of his official duties as a Planning Board member and municipal employee. 

We first discuss the evidence concerning the Recall Lawsuit and then concerning the Fair Street Lawsuit.

The Alleged Violations based on the Recall Lawsuit

McClure was a Municipal Employee

The parties stipulated that McClure was elected to the Planning Board on April 5, 2011 and sworn into office on April 13, 2011, and that, as a Planning Board member, he is a municipal employee as defined in G. L. c. 268A, §1.  Municipal planning board members are indisputably municipal employees within the meaning of the conflict of interest law. G. L. c. 268A, §1(g). McClure has admitted that Town Planning Board members are municipal employees. The continuity of McClure’s service on the Planning Board during the entire period relevant to the allegations is established by the evidence in the record that McClure was still on the Planning Board as of October 2011, when he was disqualified as plaintiffs’ counsel in the Fair Street Lawsuit because of his membership on the Planning Board. Thus, this element of § 17(c) has been proved by a preponderance of the evidence.

McClure acted as Agent or Attorney for anyone other than the Town

As set forth above in paragraphs 3 through 14 of the Findings of Fact, the evidence establishes that, between April 21 and May 5, 2011, McClure repeatedly acted as attorney for the private plaintiffs in connection with the Recall Lawsuit against the Town Clerk. Thus, for example, McClure, on behalf of named and unnamed registered voters of Chelmsford: on April 21st, wrote and sent a demand letter to the Town Clerk threatening litigation; on April 22nd, filed in superior court a complaint and an emergency motion for injunctive relief; on April 26th, 27th and 29th, wrote and sent letters to superior court clerks concerning motions and hearings; on April 26th, filed plaintiffs’ emergency motion for further injunctive relief and an amended complaint; also on April 26th sent an email to the Town Manager stating the terms for his withdrawing plaintiffs’ motion; and on April 22nd and May 2nd or 3rd, appeared in court and argued motions.[8]  Each of McClure’s actions in the Recall Lawsuit until April 26th were expressly done as attorney for the plaintiffs, as were the April 27th and 29th letters. While in the First Amended Complaint and in other filings on or after April 26th, McClure was named as a plaintiff and purported to act as a “plaintiff pro se”, he was in fact still actively acting as plaintiffs’ attorney through at least the May 2nd or 3rd hearing on plaintiffs’ motion for further injunctive relief.  Indeed, because McClure did not withdraw his appearance as plaintiffs’ counsel, and no other attorney actually took any action on behalf the other plaintiffs until the May 5th hearing (which the new attorney attended with McClure), McClure’s representation of the other plaintiffs continued until the court’s May 6, 2011 order disqualifying him.  Thus, this element of § 17(c) has been proved by the preponderance of the evidence.

In connection with a particular matter in which the Town was a party or had a direct and substantial interest

McClure admitted in his Amended Answer that the Recall Lawsuit was a particular matter.  The Recall Lawsuit, as a proceeding, claim and controversy, was indisputably a “particular matter” as defined by G. L. c. 268A, § 1(k).   McClure, however, denied in his Amended Answer that the Town was a party to or had a direct and substantial interest in the Recall Lawsuit.  

Given that the Recall Lawsuit was a suit against the Town Clerk in her official capacity as such the Recall Lawsuit was effectively a suit against a department of the Town, i.e., the office of the Town Clerk, and a particular matter in which the Town was a party.  In addition, where the Recall Lawsuit concerned the plaintiffs’ effort to require a recall election for four Town selectmen, and the interpretation of Town Charter and state laws governing such elections, and where the Town Clerk was represented by Town Counsel, the Town clearly had a direct and substantial interest in lawsuit and its outcome.  Thus, this element of § 17(c) has been proved by the preponderance of the evidence.

Otherwise than in the proper discharge of his official duties as a Planning Board member and municipal employee

The evidence indicates that McClure’s involvement in the Recall Lawsuit was as a private attorney acting on behalf of his private clients and as a plaintiff.  There is no evidence that any of McClure’s acts as an attorney in the Recall Lawsuit were in the proper discharge of his official duties as a Planning Board member.  Thus, this element of § 17(c) has been proved by the preponderance of the evidence.

Therefore, Petitioner has proved by a preponderance of the evidence that McClure violated of § 17(c) in connection with the Recall Lawsuit.

The Alleged Violations based on the Fair Street Lawsuit

McClure was a Municipal Employee

This element of §17(c) has been proved by the preponderance of the evidence, as set forth above.

McClure acted as Agent or Attorney for Anyone other than the Town

As set forth above in paragraphs 17  through 24 of the Findings of Fact, the evidence establishes that, between April and October, 2011, McClure repeatedly acted as attorney for the private plaintiffs in connection with the Fair Street Lawsuit against the Kohls and the Town. Thus, for example, McClure, as attorney for the plaintiffs: on June 21st, attempted to negotiate a settlement with the Kohls; in June 2011, communicated with Town Counsel and the Kohl’s attorney concerning dropping the Town from the lawsuit; in late September 2011, tried through emails to Town Counsel to convince the Town to abandon its rights to the “paper street” at the center of the dispute in the lawsuit; and during the period of early July into early October, 2011, opposed the Kohls’ motion to disqualify him as plaintiffs’ counsel.  Thus, this element of § 17(c) has been proved by the preponderance of the evidence.

In connection with a particular matter in which the Town was a party or had a direct and substantial interest

McClure admitted in his Amended Answer that the Fair Street Lawsuit was a particular matter.  The Fair Street Lawsuit, as a proceeding, claim and controversy, was indisputably a “particular matter” as defined by G. L. c. 268A, § 1(k).   McClure denied, however, that the Town was a party to or had a direct and substantial interest in the Fair Street Lawsuit.

The evidence shows that the Town was a defendant in the Fair Street Lawsuit, thus a party to that particular matter.   In addition, in the suit, McClure’s clients inter alia alleged that the Town had abandoned whatever interests it had had in the paper street land (except for a sewer easement) and that they were the rightful owners of the land; particular matters in which the Town had a direct and substantial interest. Thus, this element of § 17(c) has been proved by the preponderance of the evidence.

Otherwise than in the proper discharge of his official duties as a Planning Board member and municipal employee

The evidence establishes that McClure’s involvement in the Fair Street Lawsuit was solely as a private attorney acting on behalf of his private clients.  There is no evidence that any of McClure’s acts as an attorney in the Fair Street Lawsuit were in the proper discharge of his official duties as a Planning Board member.  Thus, this element of § 17(c) has been proved by the preponderance of the evidence.

Accordingly, we find that Petitioner has proved that McClure violated  § 17(c) in connection with the Fair Street Lawsuit.

Conclusions and Findings

For the above-stated reasons, we conclude and find: that Petitioner has proved by a preponderance of the evidence that McClure repeatedly violated G. L. c. 268A, § 17 in 2011 by, while serving as a Chelmsford Planning Board member, repeatedly acting as attorney for his private clients in the Fair Street and Recall lawsuits in each of which particular matters the Town was a party and had a direct and substantial interest.

Resolution      

In his concluding Brief, McClure argues for dismissal of these proceedings because, “while there may be sufficient facts to warrant finding reasonable cause to believe that a violation of the conflict of interest law has occurred, the violation does not involve either willful misconduct, significant economic advantage, the misuse of influence or confidential information, significant loss to the public or the potential for serious impact on the confidence in its officials.” McClure argues that “the Commission is clearly authorized to utilize its discretion given the unusual circumstances of this particular case to make a finding similar to that in [In the Matter of Jack Speranza, Docket No. 07-0018, 2009 SEC 2246],” in which the Commission, in an exercise of discretion, vacated its prior finding of reasonable cause and authorization of the adjudicatory proceeding and terminated the adjudicatory proceeding.[9]  McClure argues that he acted in good faith, was guided in his actions by his duties to his clients, his profession and the Massachusetts Rules of Professional Conduct, and that his “actions in both the Recall Action and the Land Court Action did not constitute a knowing violation of Section 17(c) given the underlying circumstances.”

In its concluding Brief, Petitioner argues that there are numerous exacerbating factors in this case, including McClure’s long experience as an attorney, the multiple warnings, both spoken and written, that McClure received that he was violating § 17(c), and the fact that McClure could have avoided violating the law by withdrawing as plaintiffs’ counsel or resigning from the Planning Board, but chose to do neither until forced by court order.  Petitioner asserts that a penalty should be imposed reflecting the willful nature of McClure’s violations.

We conclude that McClure’s violations were not mitigated by any circumstances warranting us to exercise our discretion to dismiss these proceedings.  We reject and find disingenuous McClure’s argument that his actions in violation of § 17(c) were the result of his faithful dedication to his duties to his clients, his profession and the Massachusetts Rules of Professional Conduct for the following reasons.  First, even if McClure were so motivated,  his is a casebook demonstration of why § 17(c) exists: thus, by his actions in commencing and continuing to serve as a private attorney in the Recall and Fair Street lawsuits, McClure placed himself in situations where the interests of and his duties to his private clients and his employing municipality were in conflict, and, in each case, he chose his duties to his clients and their interests over his duties to the Town and its interests, at best mistakenly believing that he had a higher duty to the former than to the latter.  Second, if he felt it his duty as an attorney to continue to represent the plaintiffs in the two lawsuits, McClure could easily have avoided the resultant conflicts of interest by resigning from the Planning Board.  He chose not to do so, but instead counseled his clients in the Fair Street litigation to drop their claims against the Town so that he could continue to represent them.  While willfulness and knowledge are not required elements of a § 17(c) violation, for purposes of determining the resolution of this matter, we find that McClure’s actions, particularly after his warning by Town Counsel on April 22, 2011, were knowing and willful. Under these circumstances, McClure’s violations warrant the civil penalty imposed below.    

Order 

Accordingly, to the degree that McClure has made a motion to dismiss these proceedings, that motion is DENIED.  Therefore, having found that McClure violated    G. L. c. 268A, § 17, in connection with the Fair Street and Recall lawsuits as specified above, the Commission, pursuant to the authority granted it by G. L. c. 268B, § 4(j), hereby ORDERS McClure to pay a civil penalty of $5,000 for those violations.  

 

DATE AUTHORIZED:  August 2, 2013
DATE ISSUED:  August  , 2013

 

___//signed// _________________ __//signed// __________________

Charles B. Swartwood III                    Martin Murphy

___//signed// _________________ __//signed// __________________

Paula Finley Mangum                          William Trach

NOTICE OF APPEAL

Respondent Richard McClure is hereby notified of his right to appeal this Decision and Order pursuant to G. L. c. 268B, § 4(k), and 930 CMR 1.01(10)(r), by filing a petition in the Superior Court within thirty (30) days of the issuance date.



[1]  Commissioner Regina L. Quinlan did not participate in this matter.
[2]  Section 17(c) provides that no municipal employee shall, otherwise than in the proper discharge of his official duties, act as agent or attorney for anyone other than the city or town or municipal agency in prosecuting any claim against the same city or town, or as agent or attorney for anyone in connection with any particular matter in which the same city or town is a party or has a direct and substantial interest.
[3]  McClure subsequently completed the Commission’s online conflict of interest law training program on June 20, 2011.  Among other issues, the training covered the restrictions on a public employee acting as agent or attorney for anyone other than his employing government in matters involving the government.
[4] Where McClure had filed the complaint as plaintiffs’ attorney, had not withdrawn his appearance as plaintiffs’ counsel and no other attorney had appeared in the case as plaintiffs’ counsel, we find that, despite how he attempted to characterize his signatures on documents filed with the court, McClure was acting as plaintiffs’ attorney.  In addition, we find that McClure was acting as agent for the plaintiffs.
[5]  McClure testified that as of May 2nd he was “limited to representing myself pro se in the pleadings.”  Regardless of whether this was in fact the case “in the pleadings”, McClure, as described infra, continued to represent the plaintiffs at the hearing on May 2nd or 3rd on the motion for further injunctive relief.
[6]  Notwithstanding McClure’s testimony, where the motion in question was “plaintiffs’ motion” and no other attorney appeared for the plaintiffs to argue for the motion, we find that McClure acted as plaintiffs’ attorney and not as a pro se plaintiff in appearing at the hearing and arguing for the motion.  In addition, the parties stipulated that the motion for further injunctive relief was “brought by” McClure.  According to the May 6, 2011 order denying it, the motion alleged that the Town, two selectmen and the Town Manager had been interfering with plaintiffs’ right to petition for signatures in connection with their recall effort.
[7]   McClure sought and received both written and telephone opinions from the Commission’s Legal Division during the relevant period.  By letter dated August 9, 2011, McClure sought advice about a matter then about to come before the Planning Board involving an applicant for an occupancy permit requiring “as built” approval from the Planning Board against whom he had previously personally bought suit (the dismissal of which McClure was then appealing).  The Town was also a defendant in the suit, which alleged, inter alia, improper permitting process and site plan review by various Town boards, including the Planning Board.  McClure inter alia inquired as to: whether he could speak before the Planning Board as a plaintiff and/or resident; whether he could question the applicant as a Board member; and whether he could deliberate and vote as a Board member on the application.  McClure did not ask for advice concerning the lawsuits at the center of this matter.  McClure’s August 9th request for advice is relevant to these proceedings only to the extent that the informal written opinion, issued to McClure on August 30, 2011, contained a detailed explanation of §17, making it clear that McClure, as a municipal employee, could not act as attorney for anyone other than himself in any matter involving the Town, and directed McClure to Commission Advisory 88-01 – Agency Part A: Municipal Employees Acting as Agent.  On September 29, 2011, McClure by telephone asked: (1) whether as attorney who is an elected Planning Board member (which is not a special municipal employee position) he may represent a client in a matter involving a “paper street” if the Town is dropped from the lawsuit; and (2) whether his opponent’s motion to remove him from the case because of a conflict is required by the conflict of interest law?  In response, McClure was advised by the Legal Division that no advice could be provided to him concerning his past conduct and that prospectively he must comply with §17, which was explained to him.  As to his first question, McClure was told that he may represent a private party in the matter only if the Town is not a party to the matter and does not have a direct and substantial interest therein (even if it is not a party).  As to his second question, McClure was told that because it involved past conduct, no opinion could be provided on whether his past conduct required him to withdraw from the case even if the Town is no longer a party and does not have a direct and substantial interest in the matter.  McClure was not advised that he could act as plaintiffs’ attorney to arrange the dismissal of the Town from the lawsuit.
[8]  We do not include or rely on McClure’s actions at the May 5th hearing because of the presence of the new attorney for the other plaintiffs’ at that hearing.
[9]  In so ruling, the Commission stated, “we note that this exercise of our discretion is limited to the peculiar facts of this matter.”  2009 SEC at 2247.