December 10, 1992

FACTS:


You are an appointed state official.[1]


QUESTIONS:

1. May you use your official title in endorsing a candidate
for public office?

2. May you as a private citizen endorse a candidate, without
using your official title?

3. May you use your official title on Christmas cards that you
and your spouse send, using your personal funds?

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ANSWERS:

1. No.

2. Yes.

3. Yes.


DISCUSSION:


As an appointed state official, you are a "state employee" for
the purpose of the conflict of interest law. G.L. c. 268A, s.
1(q). As such, you are subject to s. 23(b)(2) of the conflict law, which
prohibits every public employee from using or attempting to use
"his official 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."

The Commission has consistently interpreted this provision to
prohibit public employees from using public resources for political
or other private purposes. E.g., Commission Advisory No. 4
(Political Activity) (1992) (public resources "are intended for the
conduct of public business, not for advancing the personal, private
or political interests of public employees"); Public Enforcement
Letter 92-3 (public resources may only be allocated for public
business, and may not be utilized to address individual concerns of
public employees, even if those concerns are public-spirited in
nature); EC-COI-92-5 (using state seal or state coat of arms for
campaign purposes "benefits a personal rather than a public
interest," hence prohibited by s.23[b][2]).

We have previously considered a public employee's official
title to be one of the "public resources" to which this principle
applies. Thus, in EC-COI-84-127, we advised a judge that he could
not use his official title to endorse a commercial product. In
EC-COI-90-9, we concluded that an appointed state official could
not use his official title, among other public resources, to
solicit support for a political candidate from his agency's
vendors. See also EC-COI-92-4.

An official title does not possess a quantifiable cash value.
In such circumstances, we have nevertheless found "substantial
value" based on "substantial prospective worth and utility value."
EC-COI-83-70 (unpaid faculty appointment). See also In re Burke,
1985 SEC 248, 251 (access to limited time of hospital executives).
Since your official title, like the state seal in EC-COI-92-5, "may
foster a sense of credibility" and of official support that your
name alone would not, we conclude that its use to endorse a
political candidate would be of "substantial value."[2] Therefore,
s.23(b)(2) prohibits you from using your official title to endorse
a political candidate.[3]

On the other hand, nothing in G.L. c. 268A prevents you from
endorsing a political candidate in your private capacity -- i.e.,
without using your official title or other public resources. Of
course, you remain subject to the other restrictions on public
employees' political activity summarized in our Advisory No. 4,
including the fundraising prohibitions found in G.L. c. 55 and
administered by the state Office of Campaign and Political Finance.

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[1] [footnote omitted]

[2] By contrast, we of your official title on Christmas cards
that you and your spouse send using your personal funds, even if
"unwarranted," would not in our judgment be of substantial value,
since this mere greeting would not foster the same sense of
credibility or of official support for a private purpose as would
use of your title in an unauthorized endorsement or solicitation.
Therefore, s.23(b)(2) does not prohibit this use of your title.

[3] This conclusion would not apply to an elected official. An
elected official's title in effect forms an inherent part of his or
her political identity because it connotes the important political
fact of a successful electoral candidacy and is, in any event,
inevitably connected with the elected official's name in the mind
of the voting public. See G.L. c. 54, s. 41 (identifying the names
of elected incumbents on election ballots); Clough v. Guzzi, 416 F.
Supp. 1057, 1068 (D. Mass. 1976) (three judge court) (upholding
constitutionality of this provision, on ground that "the most
important decision which the voter must make is whether to retain
or to replace the incumbent"). Cf. EC-COI-92-12 n. 10 (suggesting
that, although s. 23[b][2] prohibits certain solicitation of
political contributions by appointed public employees, such
solicitation would be "warranted" for elected officials).
Furthermore, it would be appropriate for even an appointed official
to include a present or former official title as part of
biographical information in campaign literature. See EC-COI-89-31
(s. 23[b][2] allows

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state legislator's law firm to include his title in press release
announcing his affiliation with firm). Cf. G.L. c. 53, ss. 34, 45
(allowing titles of candidates' present and former elected and
appointed public offices to appear on primary ballots). Of course,
we do not suggest that elected or appointed public employees are
free to use any other public resources of substantial value for
campaign purposes, under any circumstances. See Advisory No. 4
(1992).

Page 472

End Of Decision