September 10, 1992

FACTS:


A private, non-profit corporation called The Boston Organizing
Committee (Committee) has been created by corporate leaders in the
Commonwealth to organize an effort to bring a future international
summer Olympics to the Boston area. The Committee believes that if
the Commonwealth serves as a host to the Olympic games it will have
a significant economic impact on the Commonwealth, will create new
jobs, and will highlight the many physical, recreational and
cultural assets in the area. The Committee is currently conducting
fundraising activities in order to raise the capital necessary to
"solidify its relationship with the U.S. Olympic Committee, lead
and organize the many corporate, civic and athletic groups
necessary to serve as hosts, and prepare Boston's bid." The
Committee is also involved in public relations activity to increase
the number of international athletic events in this area in support
of its Olympic bid.

The Governor is interested in signing a Committee solicitation
letter which will be sent to corporate entities in the
Commonwealth, requesting that each corporation pledge a sum of
money, such as $25,000 per year, over the next three years to the
Committee. Other signers of the letter will include local and
federal public officials and one of the corporate founding members
of the Committee. The Committee plans to send the letter to many
individuals and corporations that are within the regulatory
jurisdiction of, or have contracts with, one or more state agencies
under the Governor's authority.


QUESTION:


Does G.L. c. 268A permit the Governor to sign this
solicitation letter?


ANSWER:


No.


DISCUSSION:


Whenever a public employee participates in a solicitation,
issues are raised under G.L. c. 268A, s. 23, which contains
standards of conduct for all state, county, and municipal
employees. Specifically, G.L. c. 268A, s. 23(b)(2) provides that a
state employee may not use his official position to secure
unwarranted privileges of substantial value for himself or
others which are not properly available to similarly situated individuals.
This provision applies to the Governor as a "state employee." G.L.
c. 268A, s. 1(q).

"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." EC-COI-92-12 (Board member prohibited from
soliciting individuals


Page 441

under his regulatory authority). We have also applied this
principle to solicitations by public employees, in both their
public and private capacities, from others "whom they oversee in
their official duties [including] subordinate employees [and]
vendors . . . ." EC-COI-92-7 (legislator prohibited from soliciting
private business relationship with legislative aide). See also
EC-COI-92-2 (legislator's financial aid committee prohibited from
soliciting anyone with an interest in legislative business, broadly
defined); 90-9 (state official prohibited from soliciting vendors
of his agency to support political candidate); 82-124 (County
Commissioner prohibited from privately selling insurance to county
vendors whose contracts he oversees); 81-66 (Corrections officer
prohibited from catalog selling to inmates within custody). We have
repeatedly explained the rationale for this prohibition:

First, such conduct raises questions about the public
official's objectivity and impartiality. For example, if
lay-offs or cutbacks are necessary, an issue can arise
regarding who will be terminated, the subordinate or
vendor who has a significant private relationship with
the public employee, or another person who does not enjoy
such a relationship. At least the appearance of
favoritism becomes unavoidable. Second, such conduct has
the potential for serious abuse. Vendors and subordinates
may feel compelled to provide private services where they
would not otherwise do so. And even if in fact no abuse
occurs, the possibility that the public official may have
taken unfair advantage of the situation can never be
completely eliminated. Consequently, the appearance of
impropriety remains.
EC-COI-92-7; In re Garvey, 1990 SEC 478, 479-80; In re
Keverian.
1990 SEC 460. 462 (citations omitted).

We now clarify that this principle applies to solicitations
for the benefit of non-governmental entities that arguably perform
a public purpose, unless a statute or regulation explicitly
authorizes the solicitation. Regardless of the purpose of a
solicitation, the dangers of compromising a public employee's
impartiality and objectivity and of creating an atmosphere where
potential vendors feel compelled to contribute to foster the
agency's or the public employee's good will remain.[1] Our prior
opinions allowing solicitation support this conclusion. In EC-COI-
84-128
, our decision to permit a state Secretary to solicit private
entities was based both on the presence of explicit statutory
authorization and on the fact that the Secretary had limited
regulatory authority over the private organizations. In
EC-COI-83-102, we decided that a state legislator could sign a
letter to be used to solicit local merchants to support a raffle in
a voter registration drive, but we indicated that the solicitation
may raise issues under s. 23 "where the solicitation is made to a
merchant whose special legislation or other particular matter is
about to be voted upon by the endorsing legislator.[2]

Here, virtually all of the corporations and individuals to be
solicited are inevitably within the regulatory jurisdiction of
state agencies responsible to the Governor - for example, the
Department of Revenue, the Commissioner of which is appointed, and
may be removed without cause, by the Secretary of Administration
and Finance with the Governor's approval. G.L. c. 14, s. 2. Many
other recipients of the solicitation will have present or
prospective contracts with state agencies similarly under the
Governor's control. While we do not suggest that any agency action
would depend on a recipient's response to this solicitation, our
concern about its "inherently exploitable nature" remains.
There-fore, the Governor may not sign this solicitation letter, in
either his public or private capacity.[3]

Our decision would be different if the Legislature (or an
agency authorized by the Legislature to adopt quasi-legislative
regulations) explicitly authorized this solicitation, either
generally or specifically.[4] For example, the Legislature might
authorize the formation of an Olympic Steering Committee and allow
the Committee to solicit funds; authorize an executive agency to
develop an Olympic bid; or merely authorize such solicitations on
behalf of non-profit entities that promote tourism.[5] Here, no
such authorization exists; in fact, the grants to such entities
authorized by G.L. c. 23A, s. 14 are explicitly made "subject to
appropriation" by the Legislature. Under the Massachusetts
Constitution, "the power to order social priorities, and to focus
the energies of society into the accomplishment of designated
objectives or programs is entrusted to the Legislature through the
enactment of laws according to prescribed procedures." Opinion of
the Justices
, 375 Mass. 827, 832 (1978). See Part II, c. 1, s. 1,
art. 4 of the Constitution. See also St. 1987, c. 371; St. 1989, c.
488 (statutes establishing "linkage" programs in Boston and Medford
respectively, and thus authorizing municipal employees to require
specified payments for public purposes from regulated developers).

Page 442

We note that our conclusion is consistent with regulations
recently adopted by the federal Office of Government Ethics,
entitled "Standards of Ethical Conduct for Employees of the
Executive Branch." 5 CFR part 2635. See EC-COI-87-32 (looking to
federal regulation for guidance in construing G.L. c. 268A). These
regulations address the use of official position for private gain
and fundraising by federal employees. Specifically, 5 CFR 2635.808
addresses fundraising in a federal employee's official and private
capacities. The regulation defines fundraising as "the raising of
funds for a non-profit organization, other than a political
organization . . . ." A public employee may fundraise in his
official position and use his official title and authority if he is
authorized to participate in his official capacity by (among other
things) a statute or regulation. A public employee may fundraise in
his private capacity provided that he does not personally solicit
from a subordinate or a "prohibited source." "Prohibited source" is
defined as any person who is seeking official action by the
employee's agency; does business or seeks to do business with the
employee's agency; conducts activities regulated by the employee's
agency; has interests which may be explicitly affected by
performance or nonperformance of the employee's official duties; or
is an organization with a majority of members whose interests are
described above. In essence, unless specifically authorized, a
public employee may not target for solicitation purposes those over
whom he has authority or oversight or with whom he has a regulatory
relationship.

We emphasize that our conclusion certainly does not prevent
the Governor, or any other policy making public official, from
publicly announcing his support for or endorsement of a non-profit
endeavor that, in his judgment, furthers some public purpose. See
Anderson v. City of Boston, 376 Mass. 178, 199 (1978), appeal
dismissed, 439 U.S. 1069 (1979) (recognizing free speech rights of
policymaking public officials, even during working hours, regarding
ballot question campaign); EC-COI-92-5 n.4 (referring to Anderson
by analogy in applying s. 23[b][2] to campaign activities). The
Governor, in other words, is free to state publicly his support of
the goals and activities of the Boston Organizing Committee; what
he may not do is sign a solicitation letter targeted, at least in
part, to individuals or organizations subject to the regulatory
authority of the Administration.

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

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

[1] Such a solicitation is distinguishable from a vendor's
offering to provide a gift to a government agency, which we have
found does not violate s. 23. See, e.g., EC-COI-89-23 (potential
state vendor donated agency software); 89-3 (vendor donated
actuarial services to agency); 84-114 (donation of artwork to
agency). In contrast, this solicitation seeks to benefit, not a
government agency, but a private entity.

[2] Section 23(b)(2) also generally prohibits public
employees from using official resources, including their official titles, to
promote a private interest. See EC-COI-92-12, 92-5; 84-127, 83-82;
Public Enforcement Letters 92-3, 89-4, In re Buckley,
1983 SEC 157.
In view of the conclusion we have reached about the "inherently
exploitable nature" of this solicitation, we have no occasion here
to consider whether other circumstances, not of such an "inherently
exploitable nature," might allow use of official resources to
solicit for a private entity pursuant to some public purpose
related to a public employee's official duties.

[3] Of course, the Governor or any other public employee may
solicit in his private capacity (i.e., without using his official
title or other state resources), for example to benefit some
charitable organization to which he belongs, so long as the
solicitation is either general in nature (e.g., a newspaper
advertisement) or otherwise not specifically directed to any person
or entity that the public employee oversees. See EC-COI-92-12 n.7.

[4] In this connection, we note that the Legislature has in
effect generally authorized elected public officials to solicit
funds for political campaign purposes in their private capacities.
G.L. c. 55, s. 13. See EC-COI-92-12 n. 10. The present opinion does
not otherwise address political fundraising, which the Legislature
has also regulated in G.L. c. 55, and which (as to G.L. c. 268A) we
have discussed elsewhere. See Commission Advisory No. 4 (1992);
EC-COI-92-12.

[5] Even when the law authorizes a solicitation, s. 23(b)(3)
would apply if a contributor later had official discretionary
dealings with the soliciting public employee (or another employee
under that employee's authority). Section 23(b)(3) prohibits a
public employee from engaging in conduct that gives a reasonable
basis for the

Page 443

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.

Page 444

End Of Decision