The state's conflict of interest law, M.G.L. c. 268A imposes "standards of conduct" on all state, county and municipal employees that are "in addition to the other provisions" in G. L c. 268A. Although § 23 does not impose criminal penalties, as do the other sections of the conflict of interest law, the Commission may impose civil penalties for violations of any of the § 23 restrictions of standards of conduct.
First, § 23 (b)(1) prohibits public employees from accepting other employment involving compensation of substantial value, the responsibilities of which are inherently incompatible with the responsibilities of his public office.
Example: a police officer would be prohibited from serving as a private security guard in his town because his duties as a law enforcement official are incompatible with the demands of his private employer.
Section 23(b)(2) prohibits a public employee from using or attempting to use his or her official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals;
Example: A governmental official may not use his governmental time or resources, such as office space, word processors, telephones, photo copiers or fax machines, to conduct a private business. Section 23(b)(2) dictates that the use of public time and resources must be limited to serving public rather than private purposes.
The Commission has also emphasized that the use of one's public position to solicit or coerce special benefits, of substantial value, for oneself or others will constitute a use of one's official position to secure unwarranted privileges or exemptions not properly available to similarly situated individuals. In addition, the Commission has advised municipal officials that they must apply objective criteria to their official duties and that if, for example, a board member cannot be objective about a matter, he should abstain.
Appearance of Conflict
Section 23(b)(3) prohibits a public employee from acting 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 the public employee's favor in the performance of his or her official duties, or that he or she is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his or her appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.
Section 23(b)(3) has often been described as the section that covers "appearances" of conflicts of interest. The statute as it currently reads, however, does not use the term "appearance." It is worth emphasizing that § 23(b)(3) prohibits acting "in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude" that the official might be unduly influenced or unduly favor any party or person.
Example: A reasonable person could conclude that a board of health member might favor or disfavor his cousin's application. Although the cousin is not a member of his immediate family under §19, the family link would implicate § 23(b)(3). To dispel such a reasonable conclusion, the board of health member should make a written disclosure to his appointing authority, describing the relevant facts of the family relationship and the official action, prior to his acting as a board member. If the board member were popularly elected, she must make a disclosure that is "public in nature." The Commission has advised that elected municipal officials should make such disclosures in writing and file them as public records with their municipal clerk. In some circumstances, it may also be prudent to reiterate the disclosure as part of the meeting minutes.
Section 23(c)(1) prohibits a current or former municipal employee from accepting "employment or engag[ing] in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position." Section 23(c)(2) prohibits him from "improperly disclos[ing] material or data within the exemptions to the definition of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties nor use such information to further his personal interest."
Section 23(d) provides that "any activity specifically exempted from any of the prohibitions in any other section of this chapter shall also be exempt from the provision of this section. The state ethics commission . . . shall not enforce the provisions of this section with respect to any such exempted activity."
Example: Because adequate disclosure may be part of complying with §§ 19 or 20 (which were discussed in previous Ethics Primers), a municipal employee may comply with the disclosure requirements of § 23(b)(3) by complying with the former. For further guidance regarding whether more than one disclosure is required, you should review the matter with municipal counsel or contact the Ethics Commission.
Finally, § 23(e) states that "nothing in this section shall preclude any . . . head of [a municipal] agency from establishing and enforcing additional standards of conduct." This section allows agencies to impose conditions that are more restrictive than § 23 and all other sections of the conflict law.
Note: Although § 23(e) does not prohibit an agency head from establishing and enforcing such additional conditions/restrictions, nothing in the conflict law affirmatively grants an agency head the legal authority to do so. Such authority is an issue of municipal law.
Future primers will discuss the application of G.L. c. 268A , § 23 in particular situations. Please contact the Ethics Commission's Legal Division at (617) 371-9500 for advice.