The state's conflict of interest law, G. L. c. 268A, and the financial disclosure law, G. L. c. 268B, restrict gifts and gratuities given to state, county and municipal employees.
Specifically, depending on the amount and source of a gift, issues may be raised under G.L. c. 268A, § 3 and G.L. c. 268B, § 6. Section 3(a) prohibits anyone from offering to a public employee anything of substantial value which is given for or because of an official act performed or to be performed by the public employee. In addition, G.L. c. 268B, § 6 specifically prohibits legislative agents from offering or giving to a public employee or his or her immediate family gifts with an aggregate value of $100 or more in a calendar year. (Similarly, public employees are prohibited by G.L. c. 268A, § 3(b) from requesting, agreeing to receive or accepting such a gift.)
The phrase "public employee" includes all Massachusetts state, county and municipal officials and employees, whether part-time or full-time, paid or unpaid, elected or appointed.
What are gifts and gratuities?
G.L. c. 268A does not define the terms gift and gratuity; instead, the law prohibits "anything of substantial value." Gifts may include honoraria and any free or discounted items or services, such as meals, entertainment event tickets, golf and travel expenses, for which payment is normally required.
Anything given to a public employee is an unlawful gift or gratuity if it is: (a) of substantial value and (b) offered for or because of an official act. (The public employee may not accept anything of substantial value for or because of an official act or an act within the public employee's official responsibility.)
What is substantial value?
Anything worth $50 or more is considered to be "of substantial value" for purposes of the conflict law. To determine substantial value, the Commission may consider, for example, the cost per person of entertainment hosted by the giver, the purchase price of an item for the public or the actual cost incurred by the giver in acquiring the gift given to the public employee. In some situations, the value of a gift will not be its retail price. The giver may have paid more, for example, than the face price of a ticket. Similarly, the value of a two year old computer is likely to be significantly less than its cost while the value of an item purchased many years ago that has become a collector's item may be significantly greater than its cost. Finally, some items, e.g. ordinary and customary plaques or similar items honoring a public employee's dedication or outstanding service, may, due to the inscription honoring the employee, have little intrinsic value once so inscribed.
There are also other special cases that public employees should keep in mind. For example, where the gift is a meal, the value of the meal will include the tax and gratuity paid as well as the retail (menu) price of the meal itself. In addition, where a gift is given to the public official and a person accompanying the official, such as a spouse, family member or guest, the value of the official's companion is included towards the $50 "substantial value" threshold. Finally, under some circumstances, the Commission will consider a group or series of gifts, individually less than $50 in value but adding up to $50 or more, to be in aggregate a gift of substantial value for G.L. c. 268A purposes. For example, a meal and an entertainment event ticket, each valued at less that $50, together could be valued at more than $50.
What is an "official act?"
The term "official act" is defined as "any decision or action in a particular matter or in the enactment of legislation." Official acts would include, for example, voting on a matter before a governmental body, preparing a Request For Proposals or RFP for a public agency, serving on a hiring committee or making a policy recommendation to one's supervisor.
What makes the gift unlawful?
The Supreme Judicial Court has stated that there must be a "link" between a gift and a particular official act. Gifts offered and accepted solely as a gesture of goodwill would not violate § 3 (although the acceptance of such gifts raises issues under § 23 for the public official). In general, therefore, a gift offered as a reward for an official act that a public employee has taken or will take, or to influence or induce any such official act will be considered to be for or because of the official act. Whether a gift is given for or because of an official act depends on giver's intent as determined by the circumstances surrounding the gift. Such circumstances could include the identities or relationship of the giver and the recipient, the giver's and recipient's expressed intents, the timing of the gift, whether the recipient has acted or will act on matters affecting the giver, and the effect, if any, of the gift on the employee's official acts. Other factors may include whether the gift is "repeated, planned and targeted," whether it is a business expense, whether a personal friendship or reciprocity exists, the nature, amount and quality of the gift or the location of the entertainment and the sophistication of the parties. In conclusion, the Commission will look at all of he circumstances surrounding the gift.
Gifts from legislative agents
In addition to the restriction of § 3, legislative agents may not offer or give gifts to public employees if the gifts have an aggregate value of $100 or more in a calendar year. In G.L. c. 268B, a gift is defined as a payment, entertainment, subscription, advance, services or anything of value, unless consideration of equal or greater value is received; the definition excludes a reported political contribution, a commercially reasonable loan, an inheritance, or gifts from certain family members. It does not matter why the gifts are given. For example, a gift worth $100 from a legislative agent violates § 6 even if the agent and the employee are personal friends and the gift is given solely out of personal friendship. (Note: Most gifts to public employees that violate § 6 are also prohibited by G.L. c. 3, § 43, which applies to executive agents as well as legislative agents and is even more restrictive. For more information regarding the application of G.L. c. 3, § 43, public employees should contact the Public Records Division of the Secretary of the Commonwealth.)
The conflict of interest law's gift and gratuity provisions prohibit anyone from giving anything of substantial value to influence or induce a public employee to take an official act or to thank him or her for taking an official act. Gifts of substantial value to any public employee - whether paid or unpaid, elected or appointed - are not expected or required in order to do business with the government. Finally, as will be discussed in the next edition of the Bulletin, the conflict of interest law may require public disclosure of a gift that the employee has received even if its receipt is not prohibited.
Please contact the Ethics Commission's Legal Division at (617) 371-9500 for advice.