Commonwealth v. Cola

*612Armstrong, J.

(concurring). I join in part one of the opinion and concur in the result. In my view both statutes (G. L. c. 268A, § 6 [a] and § 4[c]) were violated when Cola, representing the Commonwealth in the bankruptcy proceeding (the particular matter), became financially interested in the proceeding himself by his loan to Rapp (through one of Rapp’s corporations) and represented Rapp (as well as himself) in arranging the mortgage to Utopia Realty Trust. Both sets of particulars are vague in specifying the particular matter as the collection of taxes due the Commonwealth; but, because the Commonwealth’s interest in the bankruptcy proceeding was the collection of taxes, the particulars are only open to criticism for overbreadth. They do not foreclose proof of the indictments in the manner indicated. The particulars on the financial interest indictment do identify the $30,000 loan as Cola’s financial interest; and those on the agency indictment identify Cola’s representation of Rapp’s corporation in arranging the mortgage transaction with Utopia Realty Trust as one of the agency relationships violative of the statute. Consequently the defendant was on notice that the Commonwealth would attempt to prove the defendant’s liability under both indictments through his actions in the course of the bankruptcy proceedings, in arranging the financing to extricate Rapp from control of the Bankruptcy Court. With respect to those proceedings Cola was acting, in various capacities, for the Commonwealth, for Rapp, and for himself — the very multiplicity of roles with respect to particular matters that the conflict of interest law was meant to avoid. More than this it is not necessary to say, other than to observe that, as Cola permitted himself to become personally, financially involved in the particular matter in which he was acting for the Commonwealth, this case does not present the more far-reaching question whether a creditor-debtor relationship between a Commonwealth employee (or member of his family) and one who comes before him, in his official capacity, on any matter with financial implications, by itself presents a conflict of interest situation under § 6(a). In addition, I would record my reluctance to interpret § 4(c), the agency section, to cover a Commonwealth employee who is *613alleged not to have pressed the Commonwealth’s claim vigorously enough, thus opening himself to the suspicion that he “took a dive” or showed favoritism. If the reason for the employee’s action is that he is receiving compensation therefor, his behavior is made punishable by § 4(a). If the reason is that the employee or a member of his family has a personal financial interest, his behavior is made punishable by § 6(a). To say that the employee acted as “agent” for the person whom he favored would, in those cases, involve duplication of coverage so extensive as to make §§ 4(a) and 6(a) superfluous; and in other cases of favoritism (such as political favoritism or favoritism to religious, educational, or charitable organizations or to unions or other special interest groups) would make punishable conduct not generally thought subject to the Conflict of Interest Law (except, in some instances, through § 23); and liability could be made to turn, unsoundly, upon inquisition into motives. General principles of narrow construction of criminal statutes require, in my view, giving the word “agent” something like its normal unmodified (by, e.g., “secret,” or “double,” or “undisclosed”) meaning, which, to me, connotes open representation of another’s interests by authority from him. That concept seems to have been in the mind of the draftsman. See Final Report of the Special Commission Established to Make an Investigation of an Act Establishing a Code of Ethics to Guide Employees and Officials of the Commonwealth in the Performance of Their Duties, 1962 House Doc. No. 3650, at 12. See also Buss, cited in the majority opinion, at 327. The latter reads § 4(c) as applying to private action by a State employee, rather than his official actions, and reads the core concept to be directed against influence peddling. Id. at 323.