| Date: | 02/21/1979 |
|---|---|
| Organization: | State Ethics Commission |
The nature and extent of an attorney's involvement in a case will determine whether he "personally and substantially" participated in the "particular matter" as a former municipal employee such that he is precluded from acting as agent or attorney in connection with the same case in his current status as a state employee.
You are a former Assistant Corporation Counsel and are now employed by a state agency. In your present capacity, you represent certain state personnel under the Massachusetts Public Employee Collective Bargaining Act, General Laws Chapter 278. You ask whether you may appear on behalf of the head of the agency, without violating General Laws Chapter 268A, § 18, in two civil cases in a Superior Court, i.e. Case #1 and Case #2.
In your present position, you are a state employee as that term is defined in § 1(q). As Assistant Corporation Counsel for the City, you were a municipal employee, and, therefore, are now a former "municipal employee" as that term is defined in § 1(g). As a former municipal employee, you may not act as agent or attorney in connection with any particular matter in which the city or town is a party or has an interest and in which you participated as a municipal employee. § 18(a).
Both court cases constitute "particular matters". (Section 1(k)). See Attorney General Conflict Opinion No. 841. Therefore, the question is whether you "participated" in both cases as defined in § 1(j), "personally and substantially". As an attorney for the City, your involvement in Case #1 was limited to giving informal telephone advice to a colleague in the City Law Department and attending the hearing on a motion for a temporary restraining order as an interested observer on an impromptu basis. In Case #2, your participation was more extensive and involved formal case preparation including the entry of a formal appearance, and the filing of an Answer, on behalf of the County Commissioners.
We have concluded that your involvement in Case #1 as a municipal employee did not constitute personal and substantial "participation" and, therefore, you may appear in that case in your capacity as a state employee. However, in Case #2 the facts of your involvement constitute "participation" within the meaning of the conflict of interest law and you may not appear in that case as a state employee. See Attorney General Conflict Opinion No.819,841, 845.
End Of Decision
