July 14, 1992

FACTS:

Page 428

You are the Town Clerk of Easthampton. You are also the
President of the Massachusetts Town Clerks' Association (MTCA), a
voluntary organization of most town clerks in Massachusetts.

The Town Clerk is the principal election official of a town,
for both municipal and state elections. After the polls close on
election night, election officers count the votes for each precinct
and then publicly announce and post the results, G.L. c. 54, 33H,
35B, 105, all under the Town Clerk's supervision. Id. 71A. The Town
Clerk is responsible for correcting any errors in, and certifying,
the official results, id. 111, and (after state primaries and
elections) for transmitting the official results in writing to the
state Secretary. G.L. c. 53, 52; c. 54, 112. Traditionally, the
Town Clerk provides public information about the election results
by making copies available and by answering telephone inquiries.
Complete official results are not publicly available from the
Secretary's office for at least several days after state primaries
and elections.

News Election Service (NES) is a cooperative national news
agency owned and operated jointly by the Associated Press and the
four commercial television networks. NES's sole function is to
collect, tabulate, and distribute unofficial election-night vote
results in state and national elections. In most of the nation, NES
hires a reporter (often a stringer for a local newspaper) for each
county election office to phone in the results as they become
available on election night. In the New England states, however,
election results are tabulated at the municipal, rather than the
county, level. Rather than hire 351 reporters for the various
Massachusetts city and town election offices, NES has arranged with
the MTCA to contribute funds to the Association in return for
Clerks' calling NES. Specifically, NES requests each Clerk to call
several times: when each precinct's results become available, and
when the town's total is complete. NES pays the MTCA at a fixed
rate (generally $4 per call, plus a comparable amount per precinct
for the final total call) for each call made by a Clerk on election
night. NES requires the election results in a specified format to
comply with its computerized system. Both NES and the MTCA write to
each Town Clerk before state primaries and elections to request
these calls. After each election,

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NES writes to each Clerk, reporting the number of requested calls
made and not made, and reminding the Clerk that NES payments to the
MTCA are based on the number of calls made.

The MTCA represents the interests of Massachusetts town
clerks. It provides educational resources for them, including
holding three annual conferences and publishing a newsletter, and
retains a legislative agent. The MTCA's fiscal year 1992 budget is
$34,865, of which NES contributes $4,600, approximately 13 percent.
Clerks' dues amount to $13,500; some of these dues are paid by
individual Clerks, some by their municipalities.


QUESTION:


May Town Clerks arrange to make telephone calls of election
results requested by NES, in return for NES's making payments to
the MTCA?


ANSWER:


No. However, we suggest a method for accomplishing similar
results.


DISCUSSION:


Town Clerks are "municipal employees" under the state conflict
of interest law. G.L. c. 268A, 1(g). As such, they are subject to
23(b)(2) of the conflict law, which prohibits current public
employees from using their "official position[s] to secure for
[themselves] or others unwarranted privileges or exemptions which
are of substantial value and are not properly available to
similarly situated individuals."

The Commission has consistently interpreted this provision as
prohibiting public employees from obtaining a special advantage of
substantial value, not authorized by law or by their official
duties, by virtue of their public positions. For example, in
EC-COI-91-13, we held that the Selectmen's acceptance of a private
donation in order to qualify themselves for town health benefits
not authorized by the Town violated 23(b)(2). In EC-COI-87-7, we
advised a Mayor that he could not accept free travel arrangements
offered to him because of his official position, although the giver
had no interest in city business. In EC-COI-86-11, we held that a
judge could not receive an honorarium for attending a seminar on a
day when he was also receiving his judicial salary.

Public employees may not seek, in effect, to supplement their
official salaries for performing public responsibilities. See
Commission Advisory No. 10
(Chiefs of Police Doing Privately Paid
Details) (1986) (23[b][2] ordinarily prohibits additional
compensation beyond official salary). As we said of the predecessor
of 23(b)(2) in our Advisory No. 8 (Free Passes) (1985):

Public employees are already compensated for the
performance of their duties. To request or accept any item of
more than nominal value . . . from private entities which have
been, are, or may be subject to the public official's
responsibilities and duties, is to use one's public position
to secure an unwarranted privilege. . . .

It does not matter that the benefit is received by someone
other than the public employee, because 23(b)(2) also prohibits
securing such unwarranted benefits "for . . . others." Thus, in
EC-COI-92-12, we prohibited an unpaid public official from
soliciting contributions to various political campaigns from
persons within his regulatory jurisdiction. We also found that a
state legislator violated the predecessor of 23(b)(2) by wing his
position to pressure a state agency to make grants to private
organizations. In re Craven, 1980 SEC 17, 23-24, aff'd, 390 Mass.
191 (1983).

Here, the MTCA receives payments from NES because of actions
taken by Town Clerks in their official capacities. To the extent
that Clerks do not make the calls requested by NES, NES does not
make payments to the MTCA. Thus, Clerks are using their unique
immediate access to election results to secure unauthorized
financial benefits for their private Association.

This financial benefit to the MTCA, which for example amounted
to $4,600 in fiscal year 1992, is clearly "of substantial
value" because it exceeds $50. Commonwealth v. Famigletti, 4 Mass. App.
Ct. 584, 587 (1976); Commission Advisory No. 8 (Free Passes) (1985).
Where many public officials are acting in concert (here, through
their private Association) to secure the unwarranted privilege, we
regard it as appropriate to consider the total value of the benefit
to the recipient entity. See EC-COI-92-2 (aggregating contributions
from persons with "common interest"); EC-COI-91-13 (actual value
received, rather than nominal value, determines whether
"substantial value"). Therefore, 23(b)(2)

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prohibits Town Clerks from arranging to make the requested calls to
NES in return for NES's payments to the MTCA.[1]

Because we recognize the important public interest in prompt
information about election results, we emphasize that nothing in
G.L. c. 268A prevents Clerks from calling NES or anyone else with
immediate election results. The conflict law simply prohibits doing
so in return for payments to the Clerks as individuals or to other
private parties (including the MTCA).

We also note existing (and apparently unused) statutory
authority for the state Secretary to require City and Town Clerks
to report immediate (if unofficial) election results by telephone
on election night "to such central tabulation facilities as the
state secretary shall designate." G.L. c. 54, 105, third paragraph.
The Secretary (with the approval of the Governor and Council) is
authorized to adopt rules for the administration of such
facilities. Id. 110A. See id. 37, last paragraph (Secretary is to
prescribe regulations governing procedures for "counting,
tabulating and recording votes"). You may wish to discuss with the
Secretary's office the use of this authority, conceivably to
require election-night reporting to NES in return for authorized
payments to the MTCA. Payments explicitly authorized by regulation
would, of course, comply with 23(b)(2), because they would not be
"unwarranted."[2] See, e.g., EC-COI-92-5.

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


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

[1] Although we have analyzed this arrangement under 23(b)(2),
it may well violate other provisions of G.L. c. 268A, at least in
some circumstances.

Thus, if NES's payments to the MTCA allow a Clerk's dues to be
reduced by $50 or more, and the Clerk individually (rather than the
Town) pays the dues, NES would "indirectly" give substantial value
to that Clerk "for himself," for or because of an act within his
official responsibility, in violation of 3. See, e.g., In re
Collector-Treasurer's Office, 1981 SEC 35 (payments to city
officials to "expedite" municipal lien certificates violated 3,
17).

If NES's promised payments to the MTCA create in the mind of
a Town Clerk a "corrupt intent . . . to be influenced in his future
performance of an official act," the arrangement would violate 2.
See Commonwealth v. Dutney, 4 Mass. App. Ct. 363, 375 (1976). The
required "corrupt" intent is merely that "the bribe be [ ] the
prime mover or producer of the official act." United States v.
Strand
, 574 F.2d 993, 995 (9th Cir. 1978); United States v.
Brewster
, 506 F.2d 62, 82 (D.C. Cir. 1974). Unlike 3 (which
requires that the recipient be the public employee, at least
indirectly), 2 is violated if the payment is made "to any other
person or entity." A requested call to NES could well be an "act
within [a Town Clerk's] official responsibility." See Public
Enforcement Letter 92-1
, 1991 SEC 548, 559-60.

Finally, Town Clerks who call NES because of promised NES
payments to the MTCA may be viewed as acting as NES's agents in
relation to the election results, a particular matter in which the
Town has a direct and substantial interest, in violation of 17(c).
See Commonwealth v. Cola, 18 Mass. App. Ct. 598, 607-11 (1984)
(construing 4[c], the equivalent provision governing state
employees); In re Collector-Treasurer's Office, 1981 SEC 35.

[2] Payments authorized by regulation would also comply with
the other provisions of G.L. c. 268A mentioned in note 1. They
would be "as provided by law for the proper discharge of official
duty" under 3 and 17. See EC-COI-92-4 (state regulation is "law" for
purpose of 4, state equivalent of 17). They would comply with s.2
because corrupt intent would necessarily be absent.

End Of Decision