C-COI-87-38

October 5, 1987

FACTS:

Polaroid Corporation (Polaroid) proposes to fund an annual award in honor of its late vice president of consumer affairs. The award will consist of an all expense paid trip to the annual national conference of the Society of Consumer Affairs Professionals (SOCAP). Polaroid proposes that the recipient will be an employee of the Executive Office of Consumer Affairs and Business Regulations (Executive Office), who works in the consumer service area of the Executive Ofiice or one of its agencies. The issues of nomination and selection criteria will be left entirely to the Secretary and the Executive Office, and Polaroid will have no input into the nomina-

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tion or selection process. The criteria for the award will be designed to recognize excellence in public service. Polaroid intends to prepay the registration, airfare and hotel, including most meals.

You have determined that, with the exception noted below, Polaroid is not subject to the regulation of the Secretariat, or any of the agencies within the Executive Ofiice. None of the agencies within the Executive Office has jurisdiction over product sales, service or safety. The one exception is the Division of Banks,[1] which regulates a credit union which is operated for the benefit of employees of Polaroid and which operates on property owned by Polaroid. An employee of Polaroid, who is a member of a credit union, may file a complaint with the Division of Banks regarding a specific deposit. In such a case, the staff of the Division of Banks would inquire into such a complaint and mediate the dispute or engage in fact finding. The Division of Banks has no enforcement authority independent of referral.

Polaroid's motivation for providing the annual awards stems from its belief that there is a lack of public employee participation in the SOCAP. Polaroid believes that this lack of participation is attributable to the state's inability or unwillingness to fund and encourage training and development of consumer affairs professionals. Polaroid hopes that this award will increase public sector participation in the SOCAP and thereby "encourage greater understanding between government and business."
 

QUESTION:

1. Would the Executive Office be granting an unwarranted privilege of substantial value to a state employee in violation of s.23(b)(2) by agreeing to participate in Polaroid's annual award program?

2. Would a state employee selected by the Executive Office violate s.3 or s.23 by attending the Polaroid sponsored program?

ANSWER:

1. No.

2. No, except for employees in the Division of Banks.

DISCUSSION:

Section 3 of the conflict law prohibits anyone from giving, and any public employee from receiving, anything of substantial value "for or because of any official act performed or to be performed by such employee." The Commission has consistently held that a violation of s.3 requires "a nexus between the motivation for the gift and the employee's public duties." See, In the Matter of George A. Michael, 1981 SEC 59,68, {Commission Advisory No.8}, p. 3. In this case, there is no potential nexus between any employee of Polaroid or the corporation itself and any of the agencies within the Executive Office, with the exception of the Division of Banks. Therefore, with the exception of an employee of the Division of Banks, there is no s.3 restriction upon receipt of the award.[2]

An employee of the Division of Banks, on the other hand, could affect Polaroid as a public official. If such an employee were to accept a gift from Polaroid, any future official actions which he took with respect to Polaroid Corporation could reasonably be called into question. Even if such an employee could perform his official role objectively, there would be an appearance that his actions could be influenced by his prior receipt of the gift. By prohibiting receipt of a gift outright, s.3(b) prevents any potential conflict on the part of an employee of the Division of Banks. See, In the Matter of Carl D. Pitaro, et al, 1986 Ethics Commission 271.

Section 23(b)(2) of the conflict law prohibits a public employee from using or attempting to use his 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. In general, a gift from a private party for use by a government agency does not violate s.23. EC-COI-84-114.  On the other hand, a gift in the form of payment for or reimbursement for trip expenses, which is available only to a named public official, raises a conflict question under s.23(b)(2) when the gift is given because the recipient is a public official and for no other reason. See, EC-COI-87-7. In this case, however, the annual award is not being offered to any particular employee. In substance, the award is not a personal gift to a specific employee but an award which enables the Secretary to send a qualified employee to a national professional conference. Since the award is not directed at a named person, there is no opportunity for an individual employee to use his position to secure the award and thus the award would not constitute an unwarranted privilege. See, EC-COI-84-114.[3] This result is consistent with EC-COI-82-118, in which the Commission concluded that state employees whose job-related travel expenses are sponsored by a neutral third party, would not violate s.23. See, also, EC-COI-80-28, in which the Commission concluded that s.23 allowed an organization to reimburse the expenses of a state employee who had attended a conference sponsored by the organization. While the employee in EC-COI-80-28 was not permitted to keep an honorarium offered by the sponsoring organization, the employee's expenses for attendance at the conference were nonetheless deemed reimburseable.

In a later opinion based on EC-COI-80-28, the Commission permitted a state employee to accept a competitive prize from a private entity, subject to

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certain limitations. EC-COI-82-161. The limitations required that neither the sponsor of the prize nor the decision making person, if different, be a person or an entity with which the employee might reasonably expect to have dealings within his official capacity. In this case, the award is in the nature of a prize, it is based on an objective selection process, and the potential recipient will not have any potential of official dealings with Polaroid. The fact that all issues of nomination and selection criteria have been left entirely to the Secretary dispels any appearance that Polaroid is attempting to win the favor of or to establish the good will of any particular state employee.

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* Pursuant to G.L.c. 268B, s.3(g). the requesting person has consented to the publication of this opinion with identifying information.

[1] The Division of Banks is one of nine agencies within the Secretariat, the other agencies are: the Division of Standards, Division of Insurance, Division of Registration, Alcoholic Beverages Control Commission, Community and Tenant Television commission, Board of Registration in Medicine, State Racing Commission, and Department of Public Utilities.

[2] This conllusion rests on the facts as you have presented them. Should the jurisdiction of the Executive Office or agencies within the Executive Office be expanded to include Polaroid activities then the results of this opinion may be different. We suggest that you renew your opinion request if the current facts materially change.

[3] The Commission might reach a different result if the award were in the nature of cash or other compensation which could be reasonably construed as salary supplementation. See, G.L. c. 268A, s.s.3,4.

End Of Decision