THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF CAMPAIGN & POLITICAL FINANCE ONE ASHEURTON PLACE, ROOM 41 BOSTON. MASSACHUSETTS o2108 MICHAEL J. SULLIVAN ‘Tel: (617) 727-8362 o DIRECTOR (200) 462.0cPF FAX; (617) 727-6549 November 10, 2010 Stephen E. Spelman 12 Wellington Drive East Longmeadow, MA 01028 Re: CPF-10-38 Dear Mr. Spelman: This office has completed its review of a complaint we received regarding your political committee’s receipt of contributions from attorneys who represented persons you prosecuted as an employee of the Hampden County District Attorney's Office. You are employed by the 1 Attorney’s Office, although at the time the contributions at issue were received by your political committee, you were taking an unpaid leave of absence. The complainant claimed that your committee’s solicitation and receipt of these contributions violated M.G.L. c. 55, § 13. For the reasons which follow, there is no reason to believe that you or your committee violated the campaign finance law. Section 13 states that a political committee organized on behalf of a public employee may not solicit or receive contributions from: any person or combination of persons if [the public employee] knows ‘or has reason to know that the person or combination of persons has an interest in any particular matter in which (the public employee] participates or has participated in the course of such employment or which is the subject of his official responsibility. [Emphasis added]. In AO-82-01, the office stated that the political committee organized on behalf of an assistant district attorney who was a candidate for public elective office could not solicit or receive contributions from attorneys and clients who have “a direct and substantial interest” in matters in which the assistant district attorney participated. Such solicitation or receipt would not comply with Section 13. www.mass.gov/ocpf E-mail: ocpf@cpf.state.ma.usStephen E, Spelman November 10, 2010 Page 2 Ina later opinion, AO-94-14, the office expanded this interpretation, stating that a candidate who served as an assistant counsel to a state regulatory board could not, even after the conclusion of the matter that the public employee handled, solicit or receive contributions from persons that had matters before the board while the candidate was on the board. The office also stated that Section 13 did not establish a time period after a candidate completed his handling of a matter where there was no longer a continuing interest. The office subsequently applied AO-94-14 in the context of assistant district attorneys who seek elective office. See GL-99-12, which advised that attomeys who have opposed an assistant district attorney in the past may not be solicited by an assistant district attorney who is a candidate, even while the candidate is taking a leave of absence. We now believe that the statute should be applied to prohibit contributions from persons who have, when the contribution is made, a current interest in a matter that you have been responsible for. Discussion Because failure to comply with M.G.L. c. 55, § 13 can be punished as a crime, the statute should not be interpreted to criminalize the activity at issue. See Weld v. OCPF, 407 Mass. 761, 766 (1990) (statutes carrying criminal penalties must be narrowly construed). The statute applies to a contributor who “has” an interest in a particular matter. The use of the present tense is significant and limits Section 13’s application. Therefore, the statute should be construed as prohibiting the solicitation or receipt of contributions from persons who have a current interest in a particular matter the public employee has been responsible for, not a ‘matter that the contributor once, at some point in the past, had an intere: In addition, as noted in AO-94-14, we believe the statute is written to avoid a conflict of interest or appearance of such conflict by prohibiting political committees organized on behalf of public employees from soliciting or receiving certain contributions. This goal is also addressed, however, in a more comprehensive manner, by the Massachusetts conflict of interest law, M.G.L. ©. 268A, § 23(b)(3), which states that a public employee may not“act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties.” In conclusion, we now believe that the office’s previous interpretation of the statute was overly broad. A public employee’s political committee may generally solicit and receive contributions from persons who in the past had an interest in a matter that the candidate was once responsible for. After a matter that a candidate/public employee is responsible for is over, there is not necessarily a “continuing interest” in that matter requiring application of Section 13 to prohibit the solicitation or receipt of contributions from persons who once had such an interest.Stephen E. Spelman November 10, 2010 Page 3 In accordance with this office's procedures and an opinion issued by the Supervisor of Public Records, this letter is a public record, and a copy has been provided to the person(s) who brought this matter to our attention. If you have any questions regarding this letter or any other campaign finance matter, please do not hesitate to contact this office. i. j LMkauffefe tue — Michael J. Sullivan Director MIS/gb