Doe v. State Ethics Commission
Doe v. State Ethics Commission
Opinion of the Court
General Laws c. 268B, § 4 (d), provides that the State Ethics Commission (commission) “may require by summons the attendance and testimony of witnesses and the production of books, papers, and other records relating to any matter being investigated by it pursuant to [G. L. c. 268B] or [G. L. c. 268A].” We granted the commission’s application for direct appellate review in this case to consider, for the second time, whether the language quoted above authorizes the commission
1. We first recite the relevant facts of the case before us. The commission received allegations that the plaintiff violated the Commonwealth’s conflict of interest laws, G. L. c. 268A, and financial disclosure laws, G. L. c. 268B, during and after his public service career.
2. Before examining the merits, it is helpful to place the commission’s authority to summons under G. L. c. 268B, § 4 (d), within the context of the statutory scheme that authorizes the commission to identify and seek redress for ethics violations by public officials in the Commonwealth. The commission is the primary civil enforcement agency for violations of the conflict of interest law, G. L. c. 268A, and the financial disclosure law, G. L. c. 268B. See G. L. c. 268B, § 3. Section 4 of G. L. c. 268B, entitled “ [investigations by the commission,” sets forth the powers and procedures by which the commission investigates alleged ethics violations.
An investigation by the commission occurs in three distinct stages. An initial staff review begins with the commission’s receipt of allegations that violations of G. L. c. 268A or G. L. c. 268B have occurred. See G. L. c. 268B, § 4 (a). If there has been a sworn complaint alleging violations, or if the commission deems that unsworn allegations are supported by sufficient evidence to warrant a more in-depth inquiry, it may authorize a preliminary inquiry into the alleged violations. See id. The purpose of a preliminary inquiry is to obtain sufficient evidence to determine whether there is reasonable cause to believe that a violation of G. L. c. 268A or G. L. c. 268B has occurred. The commission’s general counsel must notify the Attorney General of the commencement of a preliminary inquiry, and, when appropriate, may provide the Attorney General, the United States attorney, or a district attorney of competent jurisdiction evidence
In cases where a preliminary inquiry fails to establish reasonable cause to believe that a violation has occurred, § 4 (b) directs that the commission “shall immediately terminate the inquiry and so notify, in writing, the complainant, if any, and the person who had been the subject of the inquiry.” In cases, however, where the preliminary inquiry indicates reasonable cause to believe that there has been a violation, § 4 (c) directs that the commission “may, upon a majority vote, initiate an adjudicatory proceeding to determine whether there has been such a violation.” Section 4 (e) broadly authorizes any member of the commission to administer oaths and to hear testimony or receive evidence in “any proceeding” before the commission. Subsequent subsections of § 4 deal specifically with an “adjudicatory proceeding” before the commission, see § 4 (/)-(/) (setting forth mechanics whereby adjudicatory proceedings take place), in which the commission determines, by a preponderance of the evidence, whether the accused individual did in fact violate the conflict of interest or financial disclosure laws. See Craven v. State Ethics Comm’n, 390 Mass. 191, 200 (1983). Finally, § 4 (k) provides for judicial review of any final action taken by the commission pursuant to G. L. c. 268B. With the commencement of formal adjudicatory proceedings, confidentiality provisions no longer apply, and the commission’s proceedings are conducted in public. See G. L. c. 268B, § 4 (h).
3. We now turn to the pertinent language of G. L. c. 268B, § 4 (d), which provides that the commission “may require by summons the attendance and testimony of witnesses and the production of books, papers and other records relating to any matter being investigated by it pursuant to this chapter or [G. L. c. 268A]. . . . Any justice of the superior court may, upon application by the commission, in his discretion issue an order requiring the attendance of witnesses summoned as aforesaid
As was pointed out in Doe I, “[t]he term ‘inquiry’ in this context can only mean ‘a formal or official investigation of a matter of public interest by a body ([such] as a legislative committee) with power to compel testimony.’ Webster’s Third New Int’l Dictionary 1167 (1961). See American Heritage Dictionary of the English Language 932 (3d ed. 1992) (‘inquire’ means ‘[t]o make an inquiry or investigation’). See also Massachusetts Comm’n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 189-193 (1976) (rejecting challenge very similar to one made here which sought to restrict Massachusetts Commission Against Discrimination’s authority to summons solely to adjudicatory hearing); Craven v. State Ethics Comm’n, 390 Mass. 191, 199 (1983) (referring to preliminary inquiry by commission as ‘preliminary investigation’).” Doe I, supra at 534-535 (Greaney, J., dissenting, with whom Wilkins, J., joined). In short, inquiry and investigation are synonymous terms, and consequently, we fail to perceive the ambiguity argued by the plaintiff in the commission’s authority, pursuant to § 4 (d), to issue a summons in connection with “any matter being investigated.”
Our conclusion on this point finds further support in the legislative history of the statute. Prior to 1986, G. L. c. 268B, § 4 (c), inserted by St. 1978, c. 210, § 20, provided:
*274 “If a preliminary inquiry indicates a reasonable cause for belief that this chapter or [G. L. c. 268A] has been violated, the commission may, upon a majority vote, initiate a full investigation and appropriate proceedings to determine whether there has been such a violation.
“The commission may require by summons the attendance and testimony of witnesses and the production of books, papers and other records relating to any matter being investigated by it pursuant to this chapter or [G. L. c. 268A]. . . . Any justice of the superior court may, upon application by the commission, in his discretion issue an order requiring the attendance of witnesses summoned as aforesaid and the giving of testimony or the production of books, papers and other records before the commission in furtherance of any investigation pursuant to the provisions of this chapter or [G. L. c. 268A].”
In 1986, the Legislature enacted St. 1986, c. 12, which became effective immediately.
The plaintiff asserts that a finding of reasonable cause is not a heavy burden to satisfy. He argues, therefore, that an interpretation of § 4(d) that would require the commission to reach such a finding prior to the issuance of a summons would not in any way thwart the commission’s effectiveness. The plaintiff further contends that limiting the commission’s authority to summons witnesses (e.g., a subject’s present or former employers) or compel production of records and documents from a subject’s public or private sector jobs would protect the confidential nature of the commission’s business. According to the plaintiff, a contrary interpretation “would open the door for the [cjommission to use its summons authority to go on a fishing expedition without a legitimate belief that allegations against a current or former public servant have substance.” The plaintiff’s arguments are unpersuasive.
A preliminary investigation and an adjudicatory hearing are two very distinct legal proceedings. The first generally refers to a nonjudicial fact finding conducted by an administrative agency seeking to gather evidence that may be used in future proceedings. It is largely on the record developed by the preliminary investigation on which an agency bases its decisions regarding appropriate future agency action. An “[ajdjudi-catory proceeding,” on the other hand, is “a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right
The Legislature placed numerous safeguards in G. L. c. 268B to protect subjects from “fishing expeditions” and unfounded political accusations. See G. L. c. 268B, § 2 (a) and (b) (commission is bipartisan body with three different appointing bodies; no more than three members may be from same political party; no more than two of Governor’s appointees may be from same political party); G. L. c. 268B, § 4 (a) (subject must be given written notice of preliminary inquiry within thirty days of initiation); § 4(d) (majority vote of commission needed to issue summons; judge has discretion whether to issue order compelling witness to appear); § 4 (c) (adjudicatory proceeding initiated only on majority vote). The Legislature was so concerned that alleged violations not be publicly aired until after a finding of reasonable cause that it established serious criminal penalties for breaching the confidentiality of a com
4. The judgment allowing the commission’s motion for an order compelling the plaintiff to comply with its summons, and denying the plaintiff’s motion to quash the summons, is affirmed.
So ordered.
Because the investigation has not evolved beyond the preliminary inquiry stage, details of the allegation and the plaintiff’s real name must remain confidential. See G. L. c. 268B, § 4 (a) and (b); G. L. c. 268B, § 7.
We are not asked to decide whether the plaintiff’s failure to seek relief from the subpoena in a timely fashion constitutes a waiver of his objections. See Mass. R. Civ. P. 45 (d), as amended, 399 Mass. 1214 (1983) (requiring person to whom subpoena is directed to raise objections “within 10 days after the service” or “before the time specified... for compliance”). See also G. L. c. 268B, § 4 (d) (providing that “all provisions of law relative to summonses issued in [civil] cases . . . shall apply to summonses issued by the commission”).
On the request of both parties, the judge ordered the impoundment of all pleadings, motions, or memoranda that identify the subject, or the alleged violations of G. L. c. 268A or G. L. c. 268B, unless otherwise ordered.
The commission has no power criminally to enforce the conflict of interest or the financial disclosure law. See G. L. c. 268B, § 3.
In Saccone v. State Ethics Comm’n, 395 Mass. 326 (1985), the court concluded that the commission lacked the statutory authority to enforce the provisions of G. L. c. 268A, § 23 (establishing supplemental standards of conduct for all State, county, and municipal employees, violations of which warranted administrative action). The court’s conclusion was based on its understanding that the Legislature intended the expansive language contained in G. L. c. 268B, § 4, then in effect, to authorize the commission to carry out only those duties already set forth in § 3. See id. at 330-332. Because § 3 (i) referred only to violations of sections specified in §§ 9 and 15 of G. L. c. 268A, and because (unlike §§ 2-8 and §§ 11-14), § 23 contained no criminal sanctions, the court reasoned that the commission’s enforcement jurisdiction extended only to violations of sections specified in G. L. c. 268A, §§ 9 and 15, and violations of G. L. c. 268B. See id. The Saccone decision was issued on July 9, 1985. The Attorney General asserts in the commission’s brief that, immediately thereafter, the commission began working with the Legislature on amendments to clarify that the commission was the civil enforcement agency for all sections of G. L. c. 268A and G. L. c. 268B, as well as to delineate more precisely the three stages (initial staff review, preliminary inquiry, and adjudicatory proceeding) of an investigation by the commission.
The concurring opinion of three Justices in State Ethics Commission v. Doe, 417 Mass. 522 (1994) (Doe I), quoted the authority of one commentator in the field of administrative law, who interpreted the pre-1986 version of the statute expressly to “provide [] that where reasonable cause has been found and a full investigation and appropriate proceedings set in motion, the State Ethics Commission ‘may require by summons the attendance and testimony of witnesses and the production of books, papers and other records relating to any matter being investigated by it.’ ” Id. at 529-530 (Lynch, J., concurring, with whom Nolan and O’Connor, JJ., joined), quoting A. Celia, Administrative Law and Practice § 1490, at 62 (1986). The current supplement to the text relied on by our former colleagues sheds no light on the issue before us. The authors acknowledge only that the Doe I court “found no evidence that the Legislature intended the revision of [G. L.] c. 268B, § 4 (c), now located at [G. L.] c. 268, § 4 (d), to increase the [c]ommission’s preexisting authority.” A. Celia, Administrative Law and Practice 14 n.ll (Supp. 2005). Without regard to limitations that may have existed under the pre-1986 version (a matter we are not called on to decide), what is stated above ends the debate over the scope of the commission’s broad authority to summons under the current wording of § 4(d). The Legislature, of course, is free to enact more stringent limitations if it deems it appropriate.
The court rejected a similar line of reasoning in Massachusetts Comm’n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 189-193 (1976). The defendant in that case challenged the authority of the Massachusetts Commission Against Discrimination (MCAD) to subpoena witnesses during the investigation stage of a MCAD proceeding. By statute, the MCAD was empowered to “hold hearings, subpoena witnesses, compel their attendance, administer oaths, take the testimony of any person under oath, and in connection therewith, to require the production for examination of any books or papers relating to any matter under investigation or in question before the [MCAD]” (emphasis supplied). Id. at 189, quoting G. L. c. 151B, § 3 (7).
In addition to the powers, duties and obligations expressly conferred by statute, we have noted that the commission also has powers “such as are reasonably necessary ... [to carry out] the purpose for which it was established.” Saccone v. State Ethics Comm’n, 395 Mass. 326, 335 (1985), quoting Hathaway Bakeries, Inc. v. Labor Relations Comm’n, 316 Mass. 136, 141 (1944). Thus, were the commission’s broad powers to summons not clearly conferred by § 4 (d), they could reasonably be inferred.
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