April 13, 1992

FACTS:

Page 402

You are a member of state regulatory board (Board). You are
entitled to a stipend as a Board member, but you have chosen not to
accept this compensation.

You are also employed by a private employer. You are a member
or officer of several professional associations.

You wish to solicit funds for various political and charitable
purposes from Massachusetts residents, some of whom are under the
Board's regulatory authority. These purposes include federal and
state political campaigns, and your own efforts to obtain positions
in professional, charitable, or political organizations.


QUESTIONS:


1. When may you participate in a Board matter that concerns a
professional colleague or a fellow association member?

2. How does G.L. c. 268A limit your political and charitable
fundraising activities?


ANSWERS:


1. If a Board matter could affect in a reasonably foreseeable
way the financial interests of your private employer, or a
professional association of which you are an officer, you may not
participate, unless the Governor exempts you as discussed below.
Otherwise, you may participate, but if your ties to a particular
professional colleague or follow association member who comes
before the Board are close enough to create a reasonable impression
of undue influence, you must disclose this in a public letter to
the Governor.

2. You may not solicit from persons under your Board's
regulatory jurisdiction, and you may not use any state facilities
or resources in your solicitations.


DISCUSSION:


Even though you do not accept compensation as a Board member,
the state conflict of interest law applies to you as a "state
employee."[1]

Page 402


1. Participation in Board matters


Section 6 of G.L. c. 268A generally prohibits a state employee
(unless exempted by his appointing authority)[2] from participating
in any particular matter in which (among others) he, his immediate
family or partner, or a business organization in which he is
serving as officer, director, trustee, partner or employee, has a
direct or foreseeable financial interest. Based on the facts you
present, if the financial interest of your private employer, or a
professional association of which you are an officer, could be
affected in a reasonably foreseeable way, you would be prevented
from participating.[3] The mere fact that the financial interests
of your fellow employee or of your fellow member of an association
would be affected would not prevent your participation.

However, 23(b)(3) of G.L. c. 268A prohibits a public employee
from engaging in conduct that gives a reasonable basis for the
impression that any person or entity can improperly influence him
or unduly enjoy his favor in the performance of his official
duties, but allows the employee to dispel any such impression by
written public disclosure. If your ties to a particular
professional colleague or fellow association member who comes
before the Board are close enough to create such a reasonable
impression,[4] you should disclose those ties in a public letter to
the Governor (your appointing authority). See, e.g., EC-COI-89-12,
15, 26
. You would then be free to participate fully.


2. Political and charitable fundraising

(a) Solicitations generally


Section 23(b)(2) of G.L. c. 268A provides that no public
employee may use or attempt to use his official position to secure
unwarranted privileges of substantial value[5] for himself or
others. The Commission has consistently held that this provision
flatly prohibits public employees from soliciting anything of
substantial value from persons within their regulatory
jurisdiction, because of the "inherently exploitable nature" of
these situations.[6] See EC-COI-92-7 (canvassing authorities
forbidding such solicitation of private business relationships). In
EC-COI-90 9, the Commission specifically forbade a state official
from soliciting political services from his agency's vendors, even
if he did not use official stationery. And EC-COI-92-2 held that a
State Representative could not solicit funds for personal financial
purposes from anyone with an interest in legislative business,
broadly defined.

Therefore, you may not solicit funds for any non-official purpose
from any person you know is subject to the Board's regulatory
jurisdiction, even if he or she is a friend or acquaintance of
yours."[7]

Furthermore, even if you are not soliciting persons within the
Board's regulatory jurisdiction, 23(b)(2) prohibits you from using
any state facilities or resources (including telephones, office
supplies, copying or printing facilities, and the time of state
employees), or your title and stationery as a Board member, to
solicit funds or to promote a fundraising effort that is not within
your official duties.[8] EC-COI-92-2; Commission Advisory No. 4
(Political Activity). You may also not use the state seal or coat
of arms for these purposes. EC-COI-92-5.


(b) Political fundraising


The Commission now clarifies[9] that the general solicitation
analysis above, which we have previously applied in many other
circumstances, also applies to solicitation of political
contributions to federal, state, and local candidates and political
committees, at least by an appointed public employee. [10]

Certainly, the language of 23(b)(2) contains no indication
that the Legislature intended an exception for "political"
solicitations from the statute's general application. And we have
previously applied G.L. c. 268A in related contexts. In
EC-COI-90-9, we specifically held that s.s.23(b)(2) forbids a state
official from engaging in "any campaign activity" with respect to
his agency's vendors.[11] In re Nolan, 1989 SEC 415, we concluded
that a mayor violated 2(b) and 3(b) by promising city firefighters
that he would defer scheduling a promotional civil service
examination if the firefighters agreed to "support" him in his
reelection campaign. A dictum in EC-COI-84-128 says of 23(b)(2)
that "a member of a state regulatory board may not solicit
political contributions . . . from businesses subject to the
board's regulation." (citation omitted)

The legislative history of s. 23 does not suggest otherwise.
It is true that the special legislative commission report that
proposed the original version of G.L. c. 268A states that the
commission decided "not to include in the criminal section related
subject matters such as . . . campaign contributions" because that
subject "is covered in the Corrupt Practices Act," G.L. c. 55.
Final Report of the Special Commission on Code of Ethics, H. 3650,
at 9 (1962) (emphasis supplied). See

Page 403


Moskow v. Boston Redevelopment Authority, 349 Mass. 553, 566-67
(1965) (relying on this language to hold campaign contributions to
elected officials not within G.L. c. 268A, 3, 17). But the very
statement that the "criminal section" of G.L. c. 268A does not
apply to campaign contributions suggests that 23, which then and
now contains no criminal sanctions, may well apply.

Furthermore, even these early statements that the criminal
provisions of G.L. c. 268A do not apply to campaign contributions
have been undermined by subsequent events. First, a federal Court
of Appeals, after a thorough analysis, held that provisions of 18
U.S.C. s.201 analogous to G.L. c. 268A, 2 and 3, do apply to
campaign contributions under some conditions. United States v.
Brewster
, 506 F.2d 62 (D.C. Cir. 1974). Recognizing that G.L. c.
268A, 2 and 3 were modeled on this federal statute, the
Massachusetts appellate courts have often looked to Brewster to aid
in their interpretation. Commonwealth v. Burke, 20 Mass. App. Ct.
489, 508{)9 (1985); Commonwealth v. Dutney, 4 Mass. App. Ct. 363,
376 (1976); Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 586
(1976).

Second, in affirming a conviction under 2(b), the Supreme
Judicial Court considered the defendant's argument that two cash
payments, which the jury apparently believed were the final
installment of a kickback arrangement, were instead "legitimate
campaign contributions." Commonwealth v. Borans, 379 Mass. 117, 142
(1979). The court said:

Campaign contributions to induce public officials promptly to
perform their duties are unlawful. Nor can public officials
condition the disbursement of government funds on the receipt
of "campaign contributions.'

Id. (citation omitted).

Third, in a related context, the Supreme Judicial Court
rejected an argument based on the same passage of the 1962 special
commission report quoted above, in which the special commission
also stated that "nepotism" was not within the criminal provisions
of G.L. c. 268A. Choosing to rely instead on the clear statutory
language, the court held that 19 prohibited a municipal official
from promoting his brother. Sciuto v. City of Lawrence, 389 Mass.
939, 948-49 (1983). In short, whatever small doubt may remain that
the criminal provisions of G.L. c. 268A apply to campaign
contributions, nothing in this history even suggests that 23 should
not apply.

Finally, the Federal Election Campaign Act, 2 U.S.C. s.453,
does not pre-empt applying 23 to the solicitation of federal
campaign contributions by Massachusetts public employees. After
examining the federal Act's legislative history, the Federal
Election Commission, which is charged with its interpretation, has
concluded that it does not pre-empt a state statute "regulating the
political activity of a state employee." FEC AO 1989-27 (Dec. 11,
1989).[12]

We conclude that 23(b)(2) applies to your solicitation of
campaign contributions, as well as anything else of substantial
value. As discussed above, it prohibits your solicitation from
persons under your Board's regulatory jurisdiction, and also
prohibits using any state facilities or resources in your
solicitations.[13]

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

[1] "State employee" is defined in relevant part as "a person
performing services for or holding an office, position, employment,
or membership in a state agency, whether by election, appointment,
contract of hire or engagement, whether serving with or without
compensation, on a full, regular, part-time, intermittent or
consultant basis, including members of the general court and
executive council." G.L. c. 268A, 1(q) (emphasis supplied).

[2] If any matter (or class of matters, see EC-COI-90 4; 90 5 )
to which a 6 financial interest applies comes before the Board, you
must fully disclose it to your appointing authority, the Governor,
in writing beforehand, even if you decide not to participate. The
Governor may then decide to allow your participation if he
determines that this financial interest is not so substantial as
will likely affect the integrity of your services to the state.
s.6(3). Copies of both your disclosure and the Governor's
determination must be filed with this Commission.

[3] [example deleted]. You should seek further advice from us
if you have questions about a particular situation, or seek an
appropriate exemption from the Governor (see note 2).

Page 404

[4] For example, such an impression might arise if your own
immediate supervisor, immediate subordinate, a colleague with whom
you have a close working relationship, or a close personal friend
came before the Board. See, e.g., EC-COI-89-16.

[5] Anything valued at $50 or more is "of substantial value."
Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976);
Commission Advisory No. 8 (Free Passes).

[6] General Laws c. 268A, 3(b) also prohibits you from either
soliciting or receiving anything of substantial value "for
[your]self" from such persons. EC-COI-92-2. Because most of your
proposed solicitations arguably are on behalf of others, this
discussion focuses on 23(b)(2).

[7] If a solicitation letter you sign is sent to a broad
mailing list that you do not control, and is inadvertently received
by a person subject to the Board's regulatory jurisdiction, you
will not violate 23(b)(2). To the extent that you control the
mailing list and are able with reasonable effort to remove the
names of persons subject to the Board's regulatory jurisdiction,
however, you must take reasonable steps to do so.

[8] We have recognized that state officials may use official
resources to solicit funds for public purposes. EC-COI-84-128 (by
Secretary of Public Safety, for state program to combat drug and
alcohol abuse); EC-COI-83-102 (by legislator, for voter
registration drive).

[9] We have apparently never been asked this question before,
probably because the state campaign finance law, G.L. c. 55, 13,
prohibits such political fundraising by appointed persons "employed
for compensation" by the government. The state Office of Campaign
and Political Finance (OCPF) can provide advice about whether this
provision applies to you, in view of your declining the
compensation to which you are entitled. Even if OCPF concludes that
its statute applies in your circumstances, however, our opinion
will have significance for other regulatory board members for whom
no compensation is provided; they include, for example, all members
of boards of registration (see G.L. c. 13, 9, last sentence, added
by St. 1990, c. 150, 227) and of many unpaid local boards, such as
planning boards, boards of zoning appeals, and conservation
commissions.

[10] We need not decide here to what extent this analysis
should apply to elected officials. It may well be, however, that
solicitation of political contributions is "warranted" under
23(b)(2) in different circumstances for elected than for appointed
officials. See G.L. c. 55, 13 (exempting elected officials from
prohibition against compensated public employees' soliciting or
receiving political contributions); United States v. Brewster, 506
F.2d 62, 73 n.26 (D.C. Cir. 1974) ("Every campaign contribution is
given to an elected public official probably because the giver
supports the acts done or to be done by the elected official");
United States v. Biaggi, 909 F.2d 662, 695 (2d Cir. 1990) (line
between lawful campaign contribution and illegal gratuity not
always clear, citing Brewster).

[11] The official apparently could not solicit campaign
contributions themselves (as opposed to campaign services) because
of G.L. c. 55, 13. See n. 9 above.

[12] The state statute under review was, in fact, the first
sentence of G.L. c. 55, 13.

[13] As the discussion above makes clear, federal and state
campaign finance laws may further restrict your activities. For
more information, you should contact the state Office of Campaign
and Political Finance, One Ashburton Place, Room 411, Boston, MA
02108, telephone (617) 727-8352; and the Federal Election
Commission, 999 E Street, N.W., Washington, D. C. 63, telephone
(800) 424-9530.

End Of Decision