Pursuant to G.L. c. 268B, § 3(g), the requesting party has consented to the publication of this opinion with identifying information.
You are a partner in the law firm of Goldstein and Manello and are also a consultant to the Attorney General on matters relating to your expertise in bankruptcy law.[1] Specifically, you are assisting the Attorney General on behalf of the commonwealth and political subdivisions in connection with the chapter 11 proceedings of the Manville Corporation (Manville). The Attorney General has prepared and filed a proof of claim for property damages incurred and to be incurred by the commonwealth and various subdivisions correcting problems created by the presence in public buildings of asbestos products allegedly supplied by Manville. The Attorney General has requested and received your assistance in connection with the preparation and submission of this claim. Several related claims against Manville have also been filed by other states.
Manville has filed objections to certain weaker claims filed by other states; you believe that the objections are intended to establish precedent on issues which may be detrimental to the commonwealth's claims. To pursue effectively the commonwealth's property damage claims, the Attorney General has joined with other states to pursue and defend common procedural and substantive issues. To deal with the objections filed by Manville, the Attorney General has joined with twenty-five other attorneys general in the formation of the State Government Creditors Committee for Property Damage Claims (Committee). The Attorney General as part of the Committee, and on behalf of the commonwealth, has been dealing "with issues common to it and other Committee members, and specifically has prevented Manville from impeding or defeating its claim by overpowering weaker claimants on common issues.
The Attorney General has determined that the commonwealth's interest in the Manville proceedings requires that you furnish assistance to the Committee. You state that you could not properly assist the Attorney General or pursue the Attorney General's claims unless you could do so through the Committee. The Attorney General and Committee have engaged you to assist them in dealing with common issues and have agreed to share responsibility for compensating you.
Does G.L. c. 268A permit you to assist the Committee while you also serve as a consultant to the Attorney general in the Manville proceedings?
As a consultant to the Attorney General, you are a state employee" for the purposes of G.L. c. 268A. See, G.L. c. 268A, § 1(q).[2] Under G.L. c. 268A, § 4(c), a state employee may not, otherwise than in the proper discharge of his official duties, act as attorney for anyone (other than the commonwealth) in connection with a particular matter in which the commonwealth or a state agency is a party or has a direct and substantial interest. Section 4(a) proscribes the receipt of compensation from anyone other than the commonwealth under similar conditions. The chapter Il Manville proceedings constitute a particular matter under G.L. c. 268A, § 1(k) in which the commonwealth is a party and has a direct and substantial interest. Therefore, the propriety of your representation of the Committee depends on whether the representation is in the proper discharge of your official duties as a consultant to the Attorney General. Based upon the information you have provided, the Commission concludes that it is.
General Laws, c. 268A provides latitude to an employee's appointing official to determine what will constitute the proper discharge of official duties, and the Commission will customarily defer to the appointing official's discretion. See, Commission Advisory No. 6 (the proper discharge of a municipal attorney's duties reasonably extends to representing a municipal employee in a lawsuit based on the employee's official acts). See, also, EC-COI-80-96; 89-20.[3] However, an appointing official's discretion under § 4 is not unlimited. See, for example, EC-COI-83-137 (the proper discharge of official duties does not extend to representing individuals in a private lawsuit against the state). Whether any particular determination by an appointing official would so far exceed the customary job requirements for an employee as to frustrate the purposes of the statute is a judgment which ultimately rests with the Commission as the primary civil enforcement agency under G.L. c. 268A. See, G.L. c. 268B, § 3(i).
As applied to you, the exemption is appropriate. The Attorney General has determined that the interests of the commonwealth in the Manville proceedings requires your assistance to the Committee. Given the litigation strategy which you have described, it appears that the purpose of your employment by the Attorney General cannot be achieved without your concurrent representation of the Committee. Your representation of the Committee would therefore be in the proper discharge of your official duties and exempt from G.L. c. 268A, § 4.
End Of Decision
