Docket No. 396
In the Matter of Michael D. Powers

Appearances: Stephen P. Fauteux, Esq., Counsel for the Petitioner; Charles A. Roberts, Esq., Counsel for the Respondent

Commissioners: Hennessey, Ch., Gleason, Jarvis[1]
Presiding Officer: Commissioner Herbert P. Gleason, Esq.

Authorized October 22, 1991

DECISION AND ORDER

I. Procedural History

The Petitioner Enforcement Division (Petitioner) initiated adjudicatory proceedings on December 5, 1990 by filing an Order to Show Cause (OTSC) pursuant to the Commission’s Rules of Practice and Procedure.  930 CMR 1.01(5)(a).  The OTSC alleged that the Respondent, Attorney Michael D. Powers (Powers) a former employee of the City of Boston, violated G.L. c. 268A §18(a) of the Massachusetts conflict of interest law by acting as an attorney for the Massachusetts Police Chiefs Association (MPCA) in connection with a lawsuit, Guiney v. Roache, in which the City was either a party or in which it had a direct and substantial interest.  The OTSC alleged that Powers had participated in the lawsuit when he was employed by the City.

Powers filed his Answer on December 31, 1990, denying the material allegations of the OTSC.  Powers also raised two affirmative defenses, which were later submitted in the form of Motions to Dismiss: (i) that the statute of limitations barred these proceedings and (ii) that his actions were consistent with prior Commission rulings. 

Powers made seven motions[2] prior to the pre-hearing conference, including the two Motions to Dismiss cited above.  Commissioner Gleason[3] denied three of these motions.  At Powers’ request, the two Motions to Dismiss were presented before the full Commission, but without a hearing, for action prior to the hearing date.[4]  See 930 CMR 1.01(6)(a)(1).  Of the final two motions, one was rendered moot, and, therefore, no action was taken.[5]  In response to Powers’ final motion, the adjudicatory hearing date was postponed until May 2, 1991.

A pre-hearing conference was held on April 8, 1991, Commissioner Gleason presiding.  Powers filed several exhibits during the pre-hearing conference.  The parties also filed a set of Proposed Stipulations.

The Adjudicatory Hearing was held on two separate dates, May 2, 1991 and May 9, 1991.  At the May 2 hearing date, Powers made a Motion to Disqualify the presiding officer.  Commissioner Gleason orally denied the motion and also denied Powers’ request to postpone the hearing.  Powers had requested the postponement in order to obtain preliminary relief from the Superior Court.  In response to Commissioner Gleason’s rulings, Powers entered into the record a continuing objection to the adjudicatory hearing.

On May 2, 1991, Commissioner Gleason also orally denied Petitioner’s motion to amend its Order to Show Cause, and directed the parties to attempt to enter into final stipulations.  The parties filed a set of final Stipulations on May 9, 1991.

On May 16, 1991, after the conclusion of evidence, Powers filed a motion to examine, and enter into evidence, certain medical records which he had had subpoenaed in the Commission’s name and which were delivered to the Commission’s offices on May 2, 1991.  See 930 CMR 1.01(9)(i)(1).  Commissioner Gleason denied this motion on June 27, 1991 as the records in questioned constituted neither new nor relevant evidence.  See 930 CMR 1.01(9)(n); 930 CMR 1.01(9)(f)(2).[6]

The parties were invited to submit legal briefs to the full Commission.  930 CMR 1.01(9)(k).  The Petitioner filed its brief on June 27, 1991.   Powers chose not to file a brief.

The parties chose to present their closing arguments before the full Commission.  930 CMR 1.01(9)(e)(5).  Closing arguments were heard on July 11, 1991.  Deliberations began in executive session on that date.  G.L. C. 268B §4(i); 930 CMR 1.01(9)(m)(1).  Deliberations were concluded on October 22, 1991.

In rendering this Decision and Order, the Commission has considered all of the testimony, evidence, and the arguments of the parties.

II. Findings

A. Jurisdiction

Powers does not contest the fact that in his capacity as a former employee of the City of Boston, he is a “former municipal employee” within the meaning of G.L. c. 268A §18(a).

B. Findings of Fact

The Commission finds the following facts, which have been stipulated to by the parties.

1.  From July of 1984 until sometime in April 1987, Michael D. Powers (Powers) was a special assistant corporation counsel employed by the City of Boston to represent the Boston Police Department.

2.  On April 29, 1984, Robert T. Guiney, president of the Boston Police Patrolmen’s Association, sued the City of Boston Police Commissioner in federal court (Guiney v. Roache, 86-1346), challenging on constitutional grounds the policy of the Boston Poilce Department to administer random drug test to police officers.

3.  Powers had been involved in drafting the foregoing policy.

4.  Shortly after Guiney was filed, Powers as assigned to act as counsel for the defendant Roache in that lawsuit.  More specifically, Powers filed the defendant’s answer on April 30, 1986; and handled all the other legal issues arising from that litigation while so assigned.

5.  On March 6, 1987, the Federal District Court, invoking the doctrine of abstention, dismissed the case on the ground that the matter was more suited to state court review.

6.  On March 13, 1987 the plaintiff Guiney filed his notice of appeal, and thereafter, the parties appealed the Federal District Court’s (District Court) decision to the First Circuit Court of Appeals (First Court) on an agreed statement of the case.

7.  On March 27, 1987, Powers filed a request for reconsideration [on behalf of the City of Boston] urging the Federal District Court to hear the case.[7]

8.  Approximately a week after filing the request for consideration in Guiney, Powers left the employment of the City of Boston.

9.  On April 9, 1987, the Federal District Court denied the motion for reconsideration.

10.  Shortly thereafter, Powers was engaged by the Massachusetts Police Chiefs Association (MPCA) to file an amicus brief in the Guiney appeal.

11.  On May 21, 1987, Powers filed a motion in the First Circuit asking for leave to file an amicus brief on behalf of the MPCA in the Guiney matter.

12.  On July 6, 1989[8], Powers filed a motion in the First Circuit to enlarge the time in which he could file the foregoing amicus brief.  The motion was allowed that same day.

13.  On July 27, 1987, Powers filed the foregoing amicus brief in which he argued (1) that the First Circuit should reverse the District Court’s decision, (2) that the First Circuit should decide the case itself, and (3) that the regulation was valid.

14.  On December 2, 1987, the First Circuit vacated the District Court’s judgment, and remanded the case to the District Court directing the District Court to hear the matter.

15.  On December 4, 1986,[9] Powers billed the MPCA $425 for his costs in filing the foregoing amicus brief.  The MPCA paid this bill.

16.  On December 23, 1987, Powers filed a motion in the District Court for leave to file an amicus brief on behalf of the MPCA.

17.  On February 3, 1988, Powers was present at a court conference in the District Court regarding Guiney.  At that conference, the court allowed Powers’ motion to file an amicus brief.

18.  On March 21, 1988, Powers filed a motion to enlarge the time in which he could file his amicus brief.

19.  On April 6, 1988, the District Court allowed the foregoing motion, no opposition having been filed, and accepted Powers’ amicus brief for the MPCA.

20.  On May 13, 1988, Powers presented an oral argument in support of his amicus brief in the district court.  Thereafter, there was no further involvement by Powers in the Guiney matter.

21. On May 18, 1988, the District Court issued a final judgment declaring the drug testing rule unconstitutional.

22.  On June 14, 1988, the defendant appealed.

23.  On May 17, 1989 , the First Circuit, holding that the drug testing rule was constitutional, reversed the District Court. 

24.  The question of the validity of the drug testing rule is now in the state courts.

25.  As counsel for the City of Boston Police Commissioner assigned to defend the Guiney lawsuit, Powers participated, as reflected by the District Court’s docket as a City employee in the Guiney matter.

26.  As a former City of Boston employee, Powers knowingly acted as an attorney for the MPCA, as described above in ¶¶ 10-20, in connection with the Guiney case.

In addition to the above, the Commission finds the following facts:

27. The amicus representation of a client by an attorney requires both permission from the court and notification of the parties.  Powers’ actions in connection with his amicus representation of the MPCA during the Guiney lawsuit, beginning at least as early as May 21, 1987 (Stipulations ¶11), were made known to the federal court, the parties, and the City of Boston through its Corporation Counsel’s office and/or the Boston Police Department’s legal office at all relevant times herein.

28.  We find as credible the testimony of Petitioner’s witness, Kevin McDermott (Special Assistant Corporation Counsel employed by the Boston Police Department during all relevant times herein) that the Police Department’s legal office had been made aware of Powers’ amicus representation of the MPCA at least as early as July, 1987, but made no official objection as a matter which conflicted with Powers’ prior employment relationship with the City.

29.  Prior to December 2, 1987, the main legal issue of the Guiney litigation concerned whether the lawsuit itself should continue to be heard in the federal courts, or whether the state courts were more appropriate.

30.  From on or after December 5, 1987, the main legal issue of the Guiney litigation concerned the constitutionality and/or validity of Rule 111 – the random drug testing rule applicable to Boston Police Department personnel.

31.  Between December 5, 1987 and May 13, 1988, Powers supported the validity of Rule 111 in connection with his amicus representation of the MPCA.

32.  The Guiney litigation received a substantial amount of publicity throughout the proceedings.

III.  Decision

Powers has raised the Commission’s statute of limitations regulation, 930 CMR 1.01(10), as both an affirmative defense and as a Motion to Dismiss.  On April 18, 1991, the Commission voted to stay any action on this Motion to Dismiss until after the adjudicatory hearing.  For the reasons stated below, the Commission concludes that the statute of limitations bars action against Powers for any activities prior to December 5, 1987.

The statute of limitations regulation requires that the OTSC must be issued within three (3) after a disinterested person learned of the violation.  930 CMR 1.01(10)(a).  When the statute of limitations is raised as a defense, the Petitioner has the burden of showing that a disinterested person learned of the violation no more than three (3) years before the OTSC was issued.  That burden will be satisfied by:

            (a) an affidavit from the investigator currently responsible for the case that the Enforcement Division’s complaint files have been reviewed and no complaint relating to the violation was received more than three (3) years before the OTSC was issued; and 

            (b) with respect to any violation of G.L. c. 268A other than §23, affidavits from the Department of the Attorney General and the appropriate office of the District Attorney that, respectively, each office has reviewed its files and no complaint relating to the violation was received more than three (3) years before the OTSC was issued.[10]

If the Petitioner meets the above burden, the Respondent “will prevail on his statute of limitations defense only if he shows that more than three (3) years before the order was issued the relevant events were either:

            (a) a matter of general knowledge in the community; or

            (b) the subject of a complaint to the Ethics Commission, the Department of the Attorney General, or, with respect to a §23 violation only, the Respondent’s public agency.” 930 CMR 1.01 (10)(d).

In the present case, the Petitioner met its burden by the submission of four (4) affidavits, one from the Attorney General’s Office, two from the Suffolk County District Attorney’s Office, and one from the Commission’s investigator assigned to this proceeding.

The burden then shifted back to Powers to show that the relevant events were a matter of general knowledge in the community more than three (3) years before the OTSC was issued.[11]  We conclude that, as to activities prior to December 5, 1987, Powers has met this burden.

Powers actions prior to December 5, 1987, which are described above in those paragraphs prior to and including ¶15 of the stipulated facts, consisted of representing the MPCA as an amicus curiae in the federal district court.  The filing of an amicus curiae brief requires that the attorney (i) receive permission from the presiding judge, (ii) notify the parties, and (iii) appear on the court’s docket sheet.

In the present case, it is undisputed that Powers’ representation of the MPCA was made known to the federal court, the parties, and most importantly, to the City of Boston through its Corporation Counsel office and/or the department’s legal office.  We note, for example, that Petitioner’s witness, Kevin McDermott[12] testified that the police department’s legal office had been made aware of Powers’ representation of the MPCA at least as early as July 1987 but made no official objection because of Powers’ prior employment relationship to the City.

It is also undisputed that the Guiney case was well known throughout the community because it received a substantial amount of publicity.

In Nantucket v. Beinecke, 379 Mass. 345, 351 (1979) (a case which was decided prior to the Commission’s promulgation of its statute of limitations regulation), the Court suggested that a municipality should be charged with knowledge of a violation of the conflict of interest law, for purposes of the statute of limitations, “when those disinterested parties who are capable of acting on behalf of the town knew or should have known of the wrong…” While Beinecke is not controlling here, since the Commission’s Enforcement Division, as opposed to the City of Boston, is the Petitioner, the fact that City officials were in a position to object, but did not do so, is relevant to our determination of this issue.

Accordingly, based upon the evidence produced during this proceeding, we find that the “general knowledge in the community” standard is satisfied here, and is applicable to those actions which occurred more than three years prior to the issuance of the OTSC (December 5, 1990).  Cf. In the Matter of Clarence D. Race, 1988 SEC 328 (not all of the delineated people knew enough of the relevant facts to be described as members of the community who knew about the relevant events).  We so find because Powers’ representation was in connection with a highly publicized case, and was specifically authorized by the Court only after notice to all parties, including the City of Boston.

We do not find that all of Powers’ conduct is time barred, however, and where actions which are alleged to violate §18(a) are of a continuing nature (such as the representation of a client y an attorney during various stages of litigation), and only a part of those actions are time barred,[13] we normally would inquire into whether those remaining actions which are not time barred constitute a separate violation of the law.  In this matter, however, we decline to do so.

In the Order to Show Cause issued by the Petitioner, Powers was alleged to have violated §18(a) in connection with actions taken at various times prior to December 5, 1987.  On May 2, 1991, during the hearing on this matter, the Petitioner sought leave to amend the Order to Show Cause to allege additional actions by Powers constituting violations of §18(a).  The Presiding Officer, in his discretion, denied the motion to amend.  Although the Presiding Officer would clearly have been on solid ground in allowing the motion, as there would have been minimal prejudice, if any, to Powers (who subsequently entered into a stipulation concerning his alleged actions after December 5, 1987), we affirm his ruling on the motion and decline to determine the validity of alleged violations not contained in the Order to Show Cause.  In so deciding, we note that these additional allegations involve only the filing of an amicus brief and oral argument, all pro bono, in support of the Boston Police Department’s policy.

IV. Conclusion

The statute of limitations bars us from considering Powers’ actions prior to December 5, 1987.  With respect to Powers’ actions after December 5, 1987, we conclude that said actions were not charged in the Order to Show Cause, and we decline to consider them.  Accordingly, this matter is dismissed.

DATE AUTHORIZED: October 22, 1991



[1] Commissioner Doty did not participate in this proceeding.  Commissioner Epps did not vote on the issuance of this Decision and Order.
[2] The seven motions included: (i) a Motion to Dismiss on the statute of limitations grounds; (ii) a Motion to Dismissed based on prior Commission precedent (EC-COI-87-27; 85-11); (iii) a Motion for Request for Production of Documents; (iv) a Motion for Statements; (v) a Motion to be Furnished with Exculpatory Evidence; (vi) a Motion for Names, Addresses, and Dates of Birth of Petitioner’s Witnesses; and (vii) a Motion to postpone the hearing date until April 29 or April 30, 1991 (originally scheduled for April 10, 1991).
[3] Commissioner Gleason was duly assigned as a presiding officer in this proceeding.  See G.L. c. 268B, §4(e).
[4] Any action which would terminate the adjudicatory proceeding must be taken only by the Commission.  930 CMR 1.01(6)(a)(1).  In the present case, the Commission voted on April 18, 1991 to stay any action on either Motion to Dismiss until after the adjudicatory hearing.
[5] Powers’ Motion for Names, Addresses and Dates of Birth of Petitioner’s Witnesses was not acted upon because the Petitioner had provided the requested information at the pre-hearing conference.
[6] The Commission hereby orders that the documents in question be returned to their original custodian forthwith. 
[7] The evidence is unclear as to whether Powers acted under the instruction of Boston Corporation Counsel Joseph I. Mulligan when he filed the reconsideration request.  Powers testified that Mulligan had assented to the filing.  Indeed, Mulligan’s name appears (in printed form) on the City’s request for reconsideration.  Petitioner’s Exhibit No. 4; Docket No. 27.  Petitioner’s witness, Kevin McDermott, testified to his understanding, however, that Powers filed the reconsideration on his own initiative and against the direct order of James Hart, Boston Police Department Counsel Legal Advisor.  (It is not clear from the evidence presented whether Hart was, in fact, Powers’ superior.)  The parties have focused our attention on this contradictory testimony as pertinent to their respective cases.  Because of our ruling on the statute of limitations below, we need not resolve this lack of credibility.
[8] So in Stipulations.  Probably should be 1987.  See Docket No. 25.
[9] So in Stipulations.  Probably should be 1987.  See Docket No. 30.
[10] 930 CMR 1.02(10) includes an additional requirement for §23 violations.  That section, however, Is not at issue in this proceeding.
[11] See In the Matter of Frank Wallen and John Cardelli, 1984 SEC 197 (the statute of limitations is tolled on the date that the Order to Show Cause is issued).  The OTSC in the present case was issued on December 5, 1990.
[12] Special Assistant Corporation Counsel employed by the Boston Police Department during all relevant times herein.
[13] We reject both the Petitioner’s and Powers’ arguments concerning the statute of limitations.  While the Petitioner, in effect, would have us hold that the continuing nature of the violation would permit us to look back to, and rule upon, all of Powers’ actions in this case, including those occurring prior to December 5, 1987, we ding that such a ruling would be both unfair to respondents and contrary to the meaning of a statute of limitations where, as here, the “general knowledge in the community” standard has been met.  We further decline to adopt Powers’ position which would, in effect, have us find that, because some of his earlier actions are time barred, all subsequent actions are time barred.