Triplett v. Commonwealth of Massachusetts State Ethics Commission

4 Mass. L. Rptr. 703
CourtMassachusetts Superior Court
DecidedFebruary 6, 1996
DocketNo. 951564
StatusPublished

This text of 4 Mass. L. Rptr. 703 (Triplett v. Commonwealth of Massachusetts State Ethics Commission) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Triplett v. Commonwealth of Massachusetts State Ethics Commission, 4 Mass. L. Rptr. 703 (Mass. Ct. App. 1996).

Opinion

Brassard, J.

This is a declaratory action involving the adjudication of allegations regarding the plaintiff, James B. Triplett (“Triplett”), before the defendant, the Commonwealth of Massachusetts State Ethics Commission (“Commission”). Triplett challenges the Commission’s July 19, 1995 order denying Triplett’s request for the production of the Commission’s preliminary inquiry report. Triplett seeks a declaration that he has a right to discovery of the report prior to the adjudicatory hearing. The Commission now moves pursuant to Mass.R.Civ.P. 12(b)(1) and 12(b)(6) to dismiss Triplett’s complaint on the grounds that the complaint is improper because Triplett has failed to exhaust his adminstrative remedies before resorting to the courts, or in the alternative, that it fails to state a claim upon which relief can be granted. Triplett moves for summary judgment on the grounds that there are no disputed facts and he is entitled to judgment as a matter of law. For the following reasons, the Commission’s motion to dismiss is ALLOWED and Triplett’s motion for summary judgment is DENIED.

BACKGROUND

Triplett is the Chief of Police of the Town of Oxford and is an attorney admitted to the bar of Massachusetts. The State Ethics Commission is an agency of the Commonwealth charged with both investigating and adjudicating alleged violations of G.L.c. 268A. On January 19, 1995 the Commission issued an order to show cause alleging Triplett violated G.L.c. 268A, the state conflict of interest law. The decision to issue an order to show cause was based in part on the preliminary inquiry report. The preliminary inquiry report is written by the Commission’s prosecuting attorney. The report contains a summary of the allegations against Triplett, facts uncovered during the Commission’s investigation, the prosecutor’s legal analysis and recommendations as to which allegations, if any, should form the basis for an order to show cause.

Commissioner Nonnie Burnes (“Burnes”) was named the hearing officer for the adjudicatory proceedings regarding the order to show cause against Triplett. Previously, Burnes participated in the Commission’s decision to issue the order to show cause.

The adjudicatory hearing was originally scheduled for July 31, 1995 but is now scheduled to take place on February 8, 1996.

In preparing to defend himself against these charges, Triplett requested production of the preliminary inquiry report. Triplett argued that production of the document is necessary to protect his due process rights both because it potentially contains information which could aid in his defense and because it is an ex parte communication which could potentially prejudice the hearing officer. Triplett contends that disclosure of the document to the hearing officer constitutes a waiver of any work product priviledge. Triplett further argues that he is entitled to examine the factual assertions, if not the mental impressions, contained in the report. On July 19, 1995, the hearing officer denied Triplett’s request on the basis that the report was privileged under the work-product doctrine and exposure to it did not prejudice her.

On July 28, 1995 an injunction was granted by the Superior Court enjoining the Commission from conducting the adjudicatoiy hearing until a copy of the preliminary inquiry report was given to Triplett. That injunction was vacated by the Appeals Court on August 9, 1995.

DISCUSSION

This court is troubled by the invocation of the work product doctrine to bar discovery of a document that has been shown to the hearing officer. This court is sensitive to the fact that the Commission needs to be able to communicate with its members freely and that this communication could be hampered by disclosure [704]*704of internal materials to the subject of its investigation. However, the dual function of the Commission in conjunction with its ruling in this case denying Triplett access to the preliminary inquiry report creates a situation in which the hearing officer has been exposed to extraneous information regarding Triplett to which Triplett is not privy. Craven v. State Ethics Commission, 390 Mass. 191, 198 (1983), established that‘‘[t]he mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of [an agency’s] members at a later adversary hearing. Without a showing to the contrary, state administrators ‘are assumed to be [peoplel of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.’ ” 390 Mass. at 198 (quoting Withrow v. Larkin, 421 U.S. 35, 55 (1972)). However, in Withrow, the Supreme Court noted that notwithstanding the presumption of impartialily, “(the Court] should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice.” 421 U.S. at 55. The Court found that the processes utilized by the board in that case did not contain an unacceptable risk of bias in part because the accused and his counsel were permitted to be present throughout the investigative proceedings. Id. at 55-56. Here, the Commission did not allow Triplett access to the investigatory information to which the hearing officer has been exposed. Without this information, Triplett may be unable to test or challenge effectively the presumption that the hearing officer will not be improperly influenced by extraneous information she learned through the investigative process.

The resolution of this issue must necessarily balance the due process rights of Triplett and the ability of the Commission to function given its dual tasks of investigation and adjudication. However, this court declines to decide this issue because it is not properly before this court. Triplett’s complaint in Superior Court is premature because the proceedings before the Commission are ongoing.

The legislature has empowered this court with the authority to review “final” decisions of the Commission. G.L.c. 268B, §4(k). The July 19, 1995 order of the hearing officer denying Triplett’s request to compel production of the preliminary inquiry report is an interlocutory order. That order does not constitute a final decision of the Commission.

“]A]bsent special authorization, such interlocutory rulings or decisions cannot be presented piecemeal to this court for appellate review. They may be presented only as a part of the ultimate appellate review available on completion of proceedings in the trial court.” Giaccobbe v. First Coolidge Corp, 367 Mass. 309, 312 (1975).

“In the absence of a statutory directive to the contrary, the administrative remedies should be exhausted before resort to the courts.” Gordon v. Hardware Mutual Casualty Co., 361 Mass. 582, 587 (1972). This policy reflects “a sound principle of law and jurisprudence aimed at preserving the integrity of both administrative and judicial processes.” Assuncaco’s Case, 372 Mass. 6, 8 (1977). See also McKenney v. Commission on Judicial Conduct, 380 Mass. 263, 266-67 (1980). Review of an interlocutory agency decision before the administrative process is exhausted leads to piecemeal review of the administrative proceedings, hampers the Commission’s ability to render an expeditious decision, and invades the province of the Commission. Gill v. Board of Registration of Psychologists, 399 Mass. 724, 727 (1987); McKenney, 380 Mass. at 267; St. Luke’s Hospital v. Labor Relations Comm., 320 Mass.

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Related

Withrow v. Larkin
421 U.S. 35 (Supreme Court, 1975)
Joseph Giacobbe v. First Coolidge Corp.
325 N.E.2d 922 (Massachusetts Supreme Judicial Court, 1975)
Craven v. State Ethics Commission
454 N.E.2d 471 (Massachusetts Supreme Judicial Court, 1983)
McKenney v. Commission on Judicial Conduct
402 N.E.2d 1356 (Massachusetts Supreme Judicial Court, 1980)
Assuncao's Case
359 N.E.2d 1304 (Massachusetts Supreme Judicial Court, 1977)
Gordon v. Hardware Mutual Casualty Co.
281 N.E.2d 573 (Massachusetts Supreme Judicial Court, 1972)
Gill v. Board of Registration of Psychologists
506 N.E.2d 876 (Massachusetts Supreme Judicial Court, 1987)
Saint Luke's Hospital v. Labor Relations Commission
70 N.E.2d 10 (Massachusetts Supreme Judicial Court, 1946)
Samuels Pharmacy, Inc. v. Board of Registration in Pharmacy
390 Mass. 583 (Massachusetts Supreme Judicial Court, 1983)
Wilczewski v. Commissioner of the Department of Environmental Quality Engineering
404 Mass. 787 (Massachusetts Supreme Judicial Court, 1989)

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Bluebook (online)
4 Mass. L. Rptr. 703, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triplett-v-commonwealth-of-massachusetts-state-ethics-commission-masssuperct-1996.