Public employees are sometimes asked to use their public titles and letterhead to recommend applicants for employment. Public employees who participate in hiring decisions may receive recommendations for employment. This Advisory explains how the conflict of interest law, G.L. c. 268A, applies to making and receiving recommendations for employment.
I. Recommending a Current or Former Co-Worker
Making a recommendation using official title or letterhead.
Under c. 268A, § 23(b)(2), public employees may not use their official positions to give or attempt to give anyone an unwarranted privilege of substantial value,[1] which is not properly available to similarly situated individuals. Recommending someone with whom you work or have worked at your current agency, based on your personal knowledge of that person, to a potential employer permitted to receive such a recommendation, and without pressure, does not give the person recommended an unwarranted privilege in violation of § 23(b)(2).
More specifically, a public employee who is authorized by her public agency to make recommendations does not violate § 23(b)(2) by using her public position to recommend for employment a person who works with her at that agency, or who has worked with her in the past at that agency, or with whom she has had work dealings in her current public position. She may sign the recommendation using her public title, and the recommendation may be on official agency letterhead, as long as her knowledge of the job applicant arises from her employment with her current public employer. The recommendation must be based on her personal knowledge of the job applicant’s work performance and ability, cannot be accompanied by pressure (Section III below), and cannot be directed at an employer prohibited from receiving public employee recommendations under G.L. c. 271, § 40 (Section V below).
This is the only type of employment recommendation that an appointed public employee may make using her public title and letterhead. An elected public employee may make this type of employment recommendation, and may also recommend a constituent, as discussed below in Section II.
Private recommendations, without official title or letterhead.
A public employee may be asked to recommend a former co-worker with whom he worked at a different public agency, or a private company. The public employee may not sign such a letter using his current official title or use his current official letterhead, because it is not part of his current public duties to recommend a former co-worker. To do so would give the former co-worker an unwarranted privilege of substantial value, in violation of § 23(b)(2).[2] However, the public employee may send, in his personal capacity, a private letter of recommendation without using his official letterhead or title, and may refer to his prior position and title in that private letter in order to explain how he knows the former co-worker. Such recommendations should not be sent from the public employee’s work email account. If the public employee initiates a telephone call to offer a private recommendation, the call should not be made from a work phone that will display the caller’s phone number or agency name. If the public employee needs to leave a call-back number, it should be a personal telephone number and not a work phone number. In certain limited circumstances, the public employee may refer to his current position and title in the private letter, if his current position is relevant to some substantive aspect of the recommendation.
A public employee may recommend, in his personal capacity, a friend, acquaintance, or relative with whom he has no work connection in a purely private letter of recommendation that does not refer to his official position or title, and which is on personal, not official, letterhead. As noted above, the public employee should not use his work email account or initiate any calls using his work phone.
II. Elected Officials Recommending Constituents
Elected officials are often called upon to provide services to their constituents. The Commission has recognized that providing constituent services is, in general, a legitimate and time-honored activity of legislators and other elected officials.[3] Because appointed public employees do not have constituents, this section of this Advisory relates only to elected officials.
A constituent may request that an elected official recommend him for a job. As with any other official action by a public employee, recommending a constituent for employment is subject to § 23(b)(2). Such recommendations are not prohibited as long as they are not addressed to an employer prohibited from receiving them by G.L. c. 271, § 40 (see Section V below), or accompanied by pressure (Section III below), and as long as the elected official does not selectively provide recommendations only to some categories or classes of individuals, and not to other job applicants with comparable credentials.
Section 23(b)(2) prohibits providing or attempting to provide a benefit of substantial value selectively to a single individual, or to a discrete group.[4] In considering whether prohibited special treatment has been provided selectively, the Commission will consider whether the elected official has a standard practice for handling requests for recommendations from his constituents, and, if so, whether that standard practice was followed in the particular instance. Such a process should include: taking reasonable steps to learn the qualifications required for the job and how they compare with the applicant’s skills; making clear in the recommendation the information on which the recommendation is based, and not going beyond that information in making the recommendation; providing the same treatment to any other constituent requesting a recommendation; not putting pressure on the potential employer, directly or indirectly or personally or through others; and not making recommendations prohibited by G.L. c. 271, § 40.
Example of a Permissible Constituent Recommendation:
A State Representative’s usual practice when constituents whom she does not know personally ask her for job recommendations is to have a staff member review the qualifications for the job and the applicant’s resume to check whether the applicant has the required qualifications. She then sends a letter to the hiring agency asking that they consider the constituent for the position. The Representative may have other routine contacts with the hiring agency while an application is pending, but during those contacts, she does not link the unrelated matter under discussion to the hiring of the applicant or engage in any other conduct that could reasonably be viewed by the agency employee as pressure to hire the recommended applicant. This recommendation does not violate the conflict of interest law because there is no selective treatment and no pressure.
Example of an Impermissible Constituent Recommendation Given to Some, But Not to Others Similarly Situated:
A City Councilor rarely provides employment recommendations in response to constituents’ requests. However, his informal practice is that he will do so if one of his friends asks for a recommendation of a child or other relative who is a city resident. This is a violation of § 23(b)(2) because he is conferring an unwarranted privilege on the children or relatives of his friends, since he does not provide recommendations for similarly situated constituents who are not the children or relatives of his friends. The City Councilor may recommend his friends’ children or relatives in his personal capacity by making the recommendation using his personal stationery and without reference to his official title, provided that such recommendations are not addressed to employers forbidden to receive such recommendations under G.L. c. 271, § 40.
Immediate Family Members
An elected public employee may not use his position to recommend an immediate family member[5], pursuant to the sections of the conflict of interest law that prohibit public employees from participating in any particular matter in which an immediate family member has a financial interest.[6] Because a job applicant has a financial interest in employment, public employees may not participate in their official capacities in any hiring process in which an immediate family member seeks employment. An elected public employee is considered to “participate” in his official capacity in any matter into which he interjects himself in his official role.[7] Accordingly, an elected public employee who recommends an immediate family member for employment is participating in the hiring process in violation of the conflict of interest law.[8]
Appearance of a Conflict of Interest
Section 23(b)(3) of the conflict of interest law prohibits a public employee from acting in a manner that would create the appearance of a conflict of interest. Specifically, it prohibits acting in a manner that would cause a reasonable person who knew the facts to conclude that anyone can improperly influence the public employee or unduly enjoy his favor, or that the employee is likely to act or fail to act as a result of kinship, rank, position, or undue influence. The same section further provides that such an appearance of a conflict of interest will be dispelled if the elected public employee makes a public disclosure of the facts prior to acting.
An elected public employee’s recommendation of a constituent with whom the public employee has no other relationship, pursuant to the elected public employee’s standard practice for constituent recommendations, will not create an appearance of a conflict of interest pursuant to § 23(b)(3). However, a recommendation of a constituent with whom the elected public employee has some additional relationship -- a personal friend, non-immediate family member or someone with whom he has a private business relationship – can create such an appearance. In these situations, assuming that the elected official has not provided any preferential treatment because of the relationship and has not applied any direct or indirect pressure in making the recommendation, the elected public employee can avoid a violation of the conflict of interest law by making a prior public disclosure of the facts to eliminate any appearance of a conflict, pursuant to § 23(b)(3).[9]
Example of When a Disclosure Should be Made:
A State Representative customarily recommends constituents who ask for recommendations. When he is asked to provide such a recommendation, his routine practice is to have a staff member review the qualifications for the job and the applicant’s resume to check whether the applicant has the required qualifications, and then send a letter to the hiring agency asking that they consider the constituent for the position. The child of one of the State Representative’s constituents, who is also one of his oldest friends, requests a recommendation. The State Representative follows his usual practice in providing such a recommendation, and also files a written disclosure with the House Clerk and the Commission to eliminate any appearance that he might be unduly influenced by his old friend. This recommendation does not violate the conflict of interest law.[10]
III. Recommendations Accompanied by Pressure
A recommendation will violate § 23(b)(2) if it is accompanied by pressure. Use of one’s official position to exert pressure, directly or indirectly, on another to obtain or attempt to obtain employment for anyone is use of one’s official position to secure an unwarranted privilege of substantial value in violation of § 23(b)(2).[11] An employment recommendation accompanied by pressure violates § 23(b)(2) because it gives the person recommended an unwarranted privilege of substantial value.
To determine whether pressure has been applied in violation of § 23(b)(2), the Commission applies an objective test, i.e., when a public employee knows or has reason to know that a reasonable person would perceive the public employee’s conduct as an attempt to use his position to obtain or confer an unwarranted privilege of substantial value, the Commission will find a violation of the statute. Whether pressure has been applied in a given situation is fact-intensive, and the Commission will examine all of the circumstances to make that determination.
Commission precedents finding violations of § 23(b)(2) where pressure was used by a public employee to attempt to enforce compliance with a request include the following:
- In Re Travis, 2001 SEC 1014: House Chairman of Joint Committee on Banks and Banking applied pressure in violation of § 23(b)(2) when he left telephone messages for employees of a bank that had declined his request for a donation, stating that “If we can’t deal with this issue, I’m sure we’ll have problems with others” and “It doesn’t sit well with me and I certainly will remember this particular incident.” The Representative had reason to know that he was attempting to use his official position to obtain an unwarranted privilege because (1) he was the House chair of a powerful committee; (2) he solicited a private donation from an entity that had or would have interests in legislative matters before his committee; (3) at the time he made his request, the bank had or would have interests in legislation that potentially had a significant impact on banking business; and (4) he initially solicited the donation in the context of a concluded business meeting where he was acting in his legislative capacity and had access to bank executives.
- In Re Pezzella, 1991 SEC 526, 528: Governor’s Deputy Chief of Staff applied pressure in violation of § 23(b)(2) by making repeated telephone calls to an official appointed by the Governor encouraging her to decide a matter a certain way and referring to the Governor’s power to appoint the official.
- In Re Galewski, 1991 SEC 504, 505: Municipal building inspector applied pressure in violation of § 23(b)(2) by requesting that developer sell him a desirable lot at the same time that he was conducting inspection of lots in developer’s subdivision, and had issued only a temporary certificate of occupancy. Inspector knew or should have known that the effect of his conduct was to put pressure on the developer to make an unwarranted private accommodation to him.
- In Re Zeppieri, 1990 SEC 448, 449: Municipal licensing board chairman violated § 23(b)(2) by negotiating for an exclusive real estate listing from a license applicant at a time when an issue concerning the applicant’s license was pending before the board.
- Craven v. State Ethics Commission, 390 Mass. 191, 202 (1983), aff’g In Re Craven, 1980 SEC 17: House Ways and Means Committee member applied pressure in violation of § 23(b)(2) by strongly pressing agency staff to award a grant to an entity he recommended, and indicating that the agency’s budget might be adversely affected if the grant were not made.
These precedents demonstrate what common sense would in any case suggest: pressure in violation of § 23(b)(2) typically is applied through the spoken word, and far less frequently through the written word.[12] This does not mean, however, that the law prohibits oral recommendations, and permits only written recommendations. What the law prohibits is pressure. An oral recommendation unaccompanied by explicit or implicit pressure is permissible. A written recommendation amounting to or accompanied by pressure is impermissible. Written recommendations unaccompanied by any oral contact do have an obvious advantage in that they do not require credibility determinations as to what was said or how it was said. A public official’s denial that he intended oral remarks as threats will not carry the day if a reasonable person would find his remarks threatening. In Re Travis, 2001 SEC 1014, 1016; In Re Galewski, 1991 SEC 504, 505 n. 2; In Re Singleton, 1990 SEC 476.
In determining whether a public employee’s oral or written recommendation is consistent with the conflict of interest law, the Commission will consider all the circumstances to determine whether the recommendation was accompanied by pressure, in violation of § 23(b)(2). In addition to the factors suggested by the precedents described above, other factors to be considered include, but are not limited to, the following:
- Did the public employee suggest, directly or indirectly, that factors other than the merits of the applicant and competing applicants for the position should be considered in making the hiring decision?
- Did the public employee suggest, directly or indirectly, that normal agency hiring procedures should be ignored or bypassed?
- Did the public employee recommend an individual for employment for a position that was not vacant or for a position that had not yet been created?
- Did a staff member or employee of the public official, or anyone else acting on behalf of the public official, take any action with respect to a recommendation that the public official himself would not be permitted to take? A public employee may not circumvent the conflict of interest law by directing or permitting others to do what he may not.
IV. Receiving Employment Recommendations
The sections of the conflict of interest law already discussed in this Advisory also apply to public employees receiving employment recommendations. Just as § 23(b)(2) prohibits providing a benefit selectively to a single individual, or to a discrete group, in the context of making recommendations, it also prohibits such treatment by those who receive recommendations.
State law, specifically G.L. c. 66, § 3A, defines the process by which all recommendations for public employment in the Commonwealth must be handled:
Recommendations for employment submitted in support of candidates applying for employment by the commonwealth, or any political subdivision of the commonwealth, shall not be considered by a hiring authority until the applicant has met all other qualifications and requirements for the position to be filled; provided, however, that a hiring authority may, in accordance with said agency’s regular practice for conducting reference checks, contact and speak with a reference provided to it by a candidate for employment, or contact and speak with any person who has submitted a written recommendation on behalf of a candidate for employment with said agency.[13]
A public employee who knowingly gives an employment applicant preferential treatment in violation of G.L. c. 66, § 3A by, for example, putting an applicant on the list of “finalists” based on an employment recommendation, even though the candidate has not met all the other qualifications for the position, violates § 23(b)(2) of the conflict of interest law, because the public employee has given the applicant an unwarranted privilege of substantial value. [14]
Furthermore, as explained above, public employees may not participate in any hiring process in which an immediate family member seeks employment. This means that a public employee whose immediate family member is an applicant for a job in the public employee’s agency may not review resumes to select applicants to interview, participate in the interview process, participate in choosing the finalists or the successful candidate, or participate in the hiring process in any other way. Moreover, to comply with the law, it is not sufficient merely to refrain from reviewing the immediate family member’s resume or conducting her interview; the public employee must stay out of the hiring process altogether, and must not take any actions concerning other, competing applicants for the position.
Finally, participating in a hiring process by acting on a recommendation, or in any other manner, when a friend, or a relative who is not an immediate family member, is one of the applicants, will raise an appearance of a conflict of interest under § 23(b)(3) of the conflict of interest law. This is also true with respect to other people with whom a public employee has a private relationship. A public employee may satisfy § 23(b)(3) by filing a written disclosure before participating in a hiring process that involves a friend, business associate, or non-immediate family member, as long as he is able to act fairly and objectively in performing his public duties. Our regulations set forth a process for such disclosures if such information is legally required to be kept non-public, 930 CMR 3.02.[15]
V. Some Employers May Not Receive Recommendations from Public Employees
In addition to the conflict of interest law restrictions discussed above, a separate statute provides that some employers are “off-limits” for employment recommendations by public employees. Most public employees are expressly prohibited from recommending anyone for employment by any public service corporation, specifically including any “railroad, street railway, electric light, gas, telegraph, telephone, water or steamboat company,” [16] or any “licensee conducting a horse or dog racing meeting” pursuant to G.L. c. 128A. G.L. c. 271, § 40. A recommendation knowingly made in violation of G.L. c. 271, § 40, or any other statute, gives the person recommended an unwarranted privilege of substantial value, in violation of § 23(b)(2).
VI. Public Agencies and Elected Bodies May Adopt Their Own More Stringent Standards
This Advisory sets forth the restrictions imposed by the conflict of interest law, G.L. c. 268A, on public employees’ recommendations for employment. Public agencies and elected bodies may also adopt their own more stringent standards regarding such recommendations. G.L. c. 268A, § 23(e).
This Advisory is intended to assist public employees understand how the conflict of interest law applies to recommendations for employment. This Advisory is not a substitute for legal advice, nor does it mention every aspect of the law that may apply in a particular situation. Public employees can obtain free, confidential advice about the conflict of interest law from the Commission’s Legal Division by submitting an electronic request on our website, www.mass.gov/ethics. Public employees may also call the Commission at (617) 371-9500 and ask to speak to the Attorney of the Day or submit a written request for advice to the Commission at One Ashburton Place, Room 619, Boston, MA 02108, Attn: Legal Division.