June 30, 1987

 

FACTS:


You are the head of state agency ABC. Your agency has recently
been involved in a particular matter. In anticipation of a possible
filming of a movie about the matter, a film producer has offered
you a fee primarily for the use of your name. An additional fee
would be available to you if the film goes into production.[1]

To avoid violating G.L. c. 268A, s.3(b)[2] you have directed the
establishment of a charitable trust (Trust), named after your late
father. The Trust, which is administered by two independent
trustees, will execute all agency and option documents, and also
receive and distribute funds which are received from the film
producer. The exclusive purposes of the Trust are charitable and
educational, and the Trust payments are

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primarily intended to provide educational scholarships and program
development relating to the conduct of public and private sector
officials. You state that neither you nor your office would seek
any payments or distributions from the Trust or otherwise receive
any benefit from the Trust.
 


QUESTION:


Does your establishment of the Trust satisfy G.L. c. 268A?
 


ANSWER:


Yes.

 


DISCUSSION:


In your capacity as a state agency head, you are a state
employee for the purposes of G.L. c. 268A. Two sections of G.L. c.
268A are relevant to your question.


1. Section 3(b)


Section 3(b) of G.L. c. 268A prohibits a state employee from
directly or indirectly receiving anything of substantial value for
himself for or because of any official responsibiliry performed or
to be performed. The principle of s.3(b) is straightforward: by
accepting gifts of substantial value relating to duties which the
official has performed and received public compensation, the
official raises questions about the credibility and impartiality
of his job performance. See, In the Matter of George Michael, 1981
Ethics Commission 59,68; {Commission Advisory No. 8}. The
Commission has also recognized, however, that the prohibitions of
s.3(b) apply only if the official seeks and receives anything of substantial
value for himself. See, EC-COI-84-114 (gift of art prints donated
for exhibition in government agency and not for the personal use
of any employee does not violate s.3). Compare, G.L. c. 268A,
s.2(b) (public official's corrupt acceptance of anything of value
is prohibited whether received for himself or for any other person
or entity). Because you will not be receiving, either directly or
indirectly, the producer's fees relating to the performance of your
ABC duties, you will not violate s.3(b).


2. Section 23(b)(2)


Under this section, a state employee may not use his official
position to secure unwarranted privileges or exemptions of
substantial value for himself or others. In EC-COI-83-82, the
Commission cautioned a state agency head to observe the safeguards
of s.23(b)(2) in connection with the production of a private film
relating to his agency's jurisdiction. In that opinion, the agency
head was advised to avoid giving any impression that the film was
state sponsored or endorsed, and to provide the filmmaker only with
information or advice which was routinely made available to the
general public. See, also G.L. c. 268A, s.23(c), prohibiting the
disclosure of confidential information. You should keep these
principles in mind in your dealings with the film producer.[3]

---------------

[1] We understand that other current and former employees of your
agency have been offered smaller fees for similar purposes. While
this opinion is addressed to the facts as they apply to you, you
may share the legal principles of this opinion with others, The
Commission will provide opinions to other current and former
employees if they wish.

[2] Under s.3(b), a state employee may not receive anything of
substantial value given for or because of any official act or acts
within his official responsibility as a state employee. See,
Discussion, infra.

[3] Given the circumstances, we do not believe that your
establishment of a charitable trust in your late father's name for
the receipt of the film production fees would constitute the use
of your official position to secure an unwarranted privilege of
substantial value for yourself or others.

 

End Of Decision