| Date: | 05/29/1984 |
|---|---|
| Organization: | State Ethics Commission |
The former Associate General Counsel of the State Ethics Commission is advised that §§ 5 and 23(c) of the conflict of interest law will apply to his participating as an employee of the United States Attorney’s Office in prosecuting a matter based, in part, on a Commission referral to the state Attorney General which was then forwarded to the United States Attorney.
You were employed as Associate General Counsel of the State Ethics Commission (Commission) during 1981 and until March 19, 1982.[1] As such, you were generally responsible for overseeing the Commission's investigative functions. And, specifically, you participated in the initiation and oversight of a particular administrative investigation (Investigation) of possible conduct in violation of the conflict of interest law.
During the course of this investigation, certain evidence which could be used in a criminal proceeding was uncovered. After you had ended your active employment with the Commission, a Commission staff attorney recommended to the Commission that this evidence be referred to the Attorney General in accordance with the Commission's authority to do so set out in G. L. c. 268B, § 4(a). The Commission adopted that recommendation and a referral report, summarizing and indexing evidence regarding certain individuals and transactions was transmitted to the Attorney General. You state that you did not participate in the authorization or writing of this report and were no longer acting as Associate General Counsel when it was authorized and written. The Attorney General sent a copy of that report to the United States Attorney and requested the Commission to furnish the U.S. Attorney with materials related to it.
On March 8, 1982, you commenced employment with the United States Attorney's Office (Office). In the course of that employment, you were assigned responsibility for a continuing investigation into corrupt acts allegedly committed by certain public officials; including activities of a subject of the Investigation (Subject) which were unrelated to it. You were not assigned responsibility for conducting any investigation which the Office might pursue into possible federal crimes committed by that Subject in connection with the Investigation.
The Subject was indicted by a federal grand jury charging him with several federal crimes. Included among those charges are allegations based on certain activities which were a part of the evidence included in the Commission's referral report. The allegations which you pursued as an employee of the Office were also included in that indictment.
You would like to participate fully in the prosecution of this indictment. That participation might include the preparation and presentation of witnesses and evidence relating to the Subject's activities uncovered during the Investigation.
In light of your prior employment by the Commission and your role in connection with its Investigation, does G.L. c. 268A permit you to participate in the Office's prosecution of those portions of an indictment based on the Commission referral report?
Yes; however, your participation may raise issues under other provisions of law.
Upon ending your employment with the Commission, you became a former state employee for purposes of the state conflict of interest law, G.L. c. 268A, § 1 et seq.
Section 5(a) of the conflict law prohibits a former state employee from acting as attorney for, or being compensated by, anyone other than the Commonwealth in connection with any particular matter[2] in which the state is a party or has a direct and substantial interest and in which he participated as state employee. Section 5(b) of G.L. c. 268A prohibits a former state employee for one year from appearing personally before any state court or agency as agent or attorney for anyone other than the state in connection with any particular matter in which the state is a party or has a direct and substantial interest and over which he had official responsibility during the two years prior to his departure from state employment.
The Commission's referral report is a particular matter. The state, through that agency, is a party to that particular matter and has a direct and substantial interest in actions taken as a result of it. Compare, EC-COl-79-36. By participating in the prosecution of those portions of the federal indictment related to the referral, you would be acting as attorney for, and being compensated by, someone other than the Commonwealth.
You state, however, that the authorization, drafting and completion of the referral report took place after you left the Commission, and that you did not participate in any of those actions. Therefore, § 5(a) does not prohibit your prosecution of those portions of the federal indictment related to the referral report because you did not participate in its authorization or preparation.
Section 5(b) does not apply as well because your activities in prosecuting the indictment will not require you to appear personally before any state court or agency in connection with the referral report, and because more than one year has elapsed since you left state service.
You should also be aware that two provisions of the standards of conduct, G.L. c. 268A, § 23, will apply to you as a former state employee. These provisions prohibit a former state employee from accepting employment or engaging in any business or professional activities which will require him to disclose confidential information which he has gained by reason of his official position or authority, and from improperly disclosing such materials[3] or using such information to further his personal interests. You must take care not to disclose any such information which you became aware of during the Commission's investigation which was not included in the referral report or furnished to the Office in connection with it.
You should also be aware that provisions of the Code of Professional Responsibility might be implicated because of your responsibility over the Investigation as a state employee. See, e.g., Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, S.J.C. Rule 3:07, DR 5-102, DR 9-101(b). Since the Commission's interpretive authority does not extend beyond G.L. c. 268A and G.L. c. 268B, you should contact other sources for clarification of those issues.
End Of Decision
