Opinion  EC-COI-84-8

Date:	01/30/1984
Organization:	State Ethics Commission

An employee of the state Banking Commission may serve as a paid consultant and expert witness in a lawsuit between a private party and a state- chartered commercial bank.

Facts

You are currently an employee of the State Banking Commission (BC). Previously, you were assigned to a BC Division where you developed expertise in a particular area; including certain relationships and knowledge of the various statutes, regulations and business practices governing those relationships. In that role, you had recurring contact with a particular commercial bank (Bank). In your current position, you have no contact with, or job functions related to commercial banks, although it is possible that reassignment within the BC could change this fact. You have been asked by a friend who is a private attorney to serve as a consultant in a private lawsuit being brought by a customer against the Bank. You state that the BC has no role in the type of problem which is the subject of this litigation. You would advise the attorney based on your expertise in certain matters and may be asked to appear as an expert witness. You will be compensated by the private attorney for whatever advice or testimony you will give in this case.

Question

May you be a compensated consultant and expert witness in a lawsuit between a private party and a Bank regulated by BC while in your current position at BC?

Answer

Yes, although you must abide by certain guidelines described below.

Discussion

       As an employee of the BC, you are a state employee as defined in the conflict of interest law, G. L. c. 268A, §1 et seq., and, as a result, are subject to the provisions of that law. Section 4 of the conflict law prohibits you from being compensated by, or acting as an agent for, anyone other than the state in connection with any particular matter^1/ in which the state is a party or has a direct and substantial interest. That definition specifically includes judicial proceedings. However, based on your description of the BC' s interest and role in this private litigation, the state is neither a party nor has a direct and substantial interest in this lawsuit. Therefore, §4 does not prohibit you from appearing and being compensated as a consultant or an expert witness in this case.

       Section 23 of G. L. c. 268A provides several standards of conduct applicable to all state employees. Provisions in that section prohibit you from using your official position to secure unwarranted privileges for yourself or others, and from the pursuit of conduct which gives reasonable basis for the impression that anyone can improperly influence or unduly enjoy your favor in the performance of your official duties. Although your employment as a consultant in this case is predicated on your expertise acquired in your state employment, there is nothing in the facts as you present them to indicate that you used your official position to secure this employment. Further, although you are employed by the state agency which regulates the Bank, your current duties in that agency do not in any way involve the Bank. Therefore, your role in the lawsuit does not give reasonable basis for the impression that you will necessarily be unduly influenced in the performance of your official duties. However, if the Bank was at some point in the future to come within your authority as a BC employee, it would be advisable that you not take any action in connection with matters involving the Bank.

       Finally, you should be aware that two provisions of the standards of conduct prohibit you from accepting employment or engaging in any business or professional activities which will require you to disclose confidential information which you have gained by reason of your official position or authority and from improperly disclosing such materials^2/ or using such information to further your personal interests. In light of your past and current positions at BC and your access to information about that agency as well as the Bank, you should take great care to abide by these provisions.^3/

End of Decision

DATE AUTHORIZED:                           January 30, 1984

^1/ For the purposes of G. L. c. 268A, “particular matter,” is defined as “any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organization, powers, duties, finances and property.” G. L. c. 268A, §1(k) (emphasis added).

^2/ These Materials are defined as “materials or data within the exemptions to the definition of public records as defined by [G. L. c. 4, §7].”

^3/ You have stated that, regardless of the outcome of this opinion, you intend to seek the approval of the head of the BC before pursuing this consulting work. That course is advisable here in light of the regulatory relationship between your agency and the Bank. Compare, EC-COI-83-25.