Opinion  EC-COI-90-11

Date:	08/11/1990
Organization:	State Ethics Commission

A former municipal attorney may represent a private client in a lawsuit in which he neither participated nor had official responsibility for as a municipal attorney.

Facts

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You are currently an attorney engaged in the private practice of law. In that capacity, you represent the XYZ Corporation (XYZ) in defense of a tort action which the City of ABC and the ABC School Committee initiated prior to 1990. The City and the School Committee are represented by an independent firm in this action.

You state that the parties completed discovery of the fact portion of the case in 1989, that discovery of the expert witnesses is continuing and that the case is scheduled for trial in 1990. You also state that XYZ's defense does not relate to or in any way use information relating to the structure and operation of the School Department.

Until 1990 you served as counsel for the School Committee and, in that capacity, represented the City and School Committee in certain matters pending in state and federal courts. You state that during the entire term of your employment, you were under the immediate supervision of the general counsel of the School Committee and reported in writing on your work activities on a monthly basis to the City Solicitor. You further state that during the entire term of your employment you did not have any responsibility for, and did not participate in, representing the City of or the School Department in the tort action, nor did you participate in or have responsibility for any other matter involving facts or claims similar or related to those asserted in the tort action. You have also provided letters from the School Committee counsel confirming that, during the entire term of your employment with the School Committee, you did not receive any information from any source regarding the factual or legal matters at issue in the tort action, nor did you communicate at any time with the independent law firm regarding the factual or legal matters at issue in that action. Specifically, you did not receive any information during your representation of the School Committee which would be relevant to the factual or legal matters at issue in the tort case or which could be used to the detriment or disadvantage of the School Committee in that litigation.

Question

Does G.L. c. 268A permit your representation of XYZ in the tort litigation?

Answer

Yes.

Discussion

Following the completion of your services for the School Committee in 1990, you became a former municipal employee for the purposes of G.L. c. 268A, and are therefore subject to restrictions in two sections of that law.

1. Section 18

Two paragraphs of G.L. c. 268A, s.18 are relevant to you. The first, G.L. c. 268A, s.18(a), prohibits you from either representing or receiving compensation from anyone other than the City in relation to any lawsuit, controversy or other particular matter[1] in which you previously participated[2] while serving as a municipal employee. Section 18(a) codifies the fiduciary relationship which a municipal employee has with his municipality, Town of Nantucket v. Beineke, 379 Mass. 345, 349 (1979), and prohibits a breach of that relationship with respect to those matters on which he worked as a municipal employee. Simply stated, a former municipal employee's loyalty must remain with the municipality with respect to any matter in which the former employee previously participated.

The prohibition of s.18(a) is limited, however, to those particular matters in which the employee actually participated and does not extend to other matters which may have been pending in his municipal agency.

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The definition of "participate" includes personal and substantial involvement in a matter and covers anything more than a purely ministerial act. See generally, EC-COI-89-7; 89-26; see also, EC-COI-83-114 (signing of a contract is personal and substantial participation); 88-14 (recommendation on the awarding of a grant, even though not a final decision, is "participation). Cf. EC-
COI-87-7.

On the other hand, when an employee has had absolutely no prior involvement through either discussion or work in a matter, the employee will not be found to have participated in that matter. In light of your representation that you had no prior involvement, either through assignment or otherwise, in the tort matter, you did not participate in that matter for the purposes of s.18(a). Accordingly, since you had no fiduciary relationship with the City or School Committee with respect to tort, you are not now prohibited from representing XYZ in the tort litigation.

Section 18(b) establishes a supplementary one year bar on your personally appearing in connection with matters in which, although you did not previously participate, were nonetheless under your official responsibility.[3]

Generally, a public employee's official responsibility is determined by his authority to act rather than by whether he actually exercises that authority. See, EC-COI-89-7; 89-26; 87-17. Accordingly, the restrictions of s.18(b) become greater with greater authority found in the former employee's position. See, EC-COI-89-7. Typically, a statute or other legal definition provides a sufficient basis to delineate a public employee's responsibilities. See, EC-COI-89-7 (by statute, a state cabinet secretary had official responsibility to supervise his entire agency); 89-26 (by statute, a special state employee had official
responsibility over matters delegated to others to perform); 85-50 (city charter gave city solicitor responsibility for defending all claims); 84-48 (town by-laws authorized selectmen to settle or defend).

Based on your representation to us, as confirmed by your prior supervisors who were responsible for your assignments, we conclude that you did not have official responsibility for the tort matter. In particular, the official responsibility for the tort matter rested with the general counsel and the independent firm to which the City and School Committee referred the case for litigation. Accordingly, the one-year appearance bar of s.18(b) does not apply to you in connection with the tort matter.

2. Section 23(c)

Under s.23(c). a former municipal employee may neither

(1) accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority, nor

(2) improperly disclose materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties nor use such information to further his personal interest.

Therefore, even if a former municipal employee has neither participated in nor has had official responsibility for a particular matter, he may be prohibited from acting as attorney in any case which will require him to disclose confidential information which he gained through his prior position. For example, if you previously reviewed a confidential memorandum to the School Committee revealing and discussing litigation strategy in the tort matter, you would be prohibited by s.23(c) from representing XYZ since your duty to represent zealously the interests of XYZ would necessarily require you to utilize the
confidential information relevant to the case. See, EC-COI-86-7 (employee may not use confidential information relating to a competitor).

On the other hand, where you had no access as a municipal employee to confidential information relating to tort, there is no confidential information which you could now disclose. To the extent that you had access to general information relating to structure and operation of the School Department, that information may very well be a public record and therefore exempt from G.L. c. 268A, s.23(c). Even assuming, for the sake of argument, that the School Department's structure and operation could be regarded as confidential, s.23(c)(1) prohibits you from engaging in a professional activity which requires you to disclose that information. Given your representation to us that your representation of XYZ does not relate to or in any way use information relating to the structure and operation of the School Department, we conclude that s.23(c)(1) does not prohibit your representation of XYZ in the tort matter.[4]

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[1] "Particular matter," 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 organizations, powers, duties, finances and property. G.L. c. 268A, s.1(k).

[2] "Participate," participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c 268A, s.1(j).

[3] "Official responsibility," the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s.1(i).

[4] The advice in this opinion is limited to the application of G.L. c. 268A to your facts and does not purport to reach any conclusions with respect to the application of the Code of Professional Responsibility.