March 12, 1992

FACTS:


You are a member of the General Court and have sought advice
concerning the use of the Great Seal of the Commonwealth (Seal).[1]


QUESTION:


Under what circumstances may public officials who are seeking
reelection or other office[2] display the Seal on private
stationery for fundraising or other campaign purposes?


ANSWER:


The Seal may not be displayed by public officials seeking
reelection or higher office on private stationery for fundraising
or other campaign purposes.


DISCUSSION:


As a member of the General Court, you are a "state employee"
as that term is used in the conflict of interest law.[3]
EC-COI-91-14.

Section 23 of G.L. c. 268A, the conflict of interest law,
contains general standards of conduct that apply to all public
employees. It provides, in pertinent part, that no state employee
may we or attempt to use his official position to secure for
himself or others unwarranted privileges or exemptions of
substantial value which are not available to others similarly
situated. s. 23(b)(2).

In previous opinions concerning the above prohibition, the
Commission has emphasized as its main concern whether the activity
or conduct benefits a private or personal, as distinct from a
public, interest. See EC-COI-84-127 (member of the judiciary may
not lend the prestige of his judicial office to a corporate
advertising campaign). The Commission has previously determined
that a public employee's use of his official position to promote
political or campaign related matters is unwarranted where such
political activity falls outside the scope of his official duties.
See EC-COI-85-29 (use of a student intern by a member of the
General Court to perform tasks which would for the most part
benefit his re-election efforts and his political campaign was
outside the scope of his office and was therefore unwarranted);
90-9 (appointed state official may not use official position to
sign a letter of endorsement for a political candidate using his
official title or official stationery). Moreover, a solicitation by
a public employee for a private purpose would violate G.L. c. 268A
if such solicitation could reasonably be perceived as an
endorsement by a public agency of the solicitation or gives the
appearance that the solicitation is officially sponsored. See
Public Enforcement Letter 89-4
(state employee's use of official
stationery and state resources in an attempt to promote a private
trip from which the employee would benefit was an unwarranted use
of official position in addition to presenting an unwarranted
appearance of state sponsorship or endorsement); In re Buckley,
1983 SEC 157 (municipal housing agency employee who was also a
private landlord violated s. 23(b)(2) by using official agency
stationery to communicate with her private tenants).

In contrast, the Commission has held that where solicitations
are authorized by statute or regulation, or where they are within
the scope of official duties, a public employee would not violate
s. 23 by using his official title or public agency letterhead. See
EC-COI-84-128
(state official, pursuant to statutory authorization,
may solicit contributions for state program); 83-102 (member of the
General Court may sign gift solicitation letter for voter
registration drive raffle where endorsement is within the range of
activities customarily expected of legislators).

With regard to the question presented, we find that the use by
a public official of the Seal for political fundraising or other
campaign purposes exceeds the proper use of a public employee's
office.[4] Such campaign activity benefits a personal rather than
a public interest. The recipients of such solicitation could
reasonably infer that the solicitation was supported or endorsed by
the Commonwealth, when in fact it is intended to benefit a personal
purpose (an individual's political campaign).[5] Because displaying
the state seal may foster a sense of credibility or obligation
which the solicitation might not otherwise have had, the use of the
state Seal is an unwarranted privilege in violation of s. 23.[6]

Page 383

This opinion is consistent with other pertinent statutory and
regulatory provisions in that it restricts the use of the Seal of
the Commonwealth to official communications of the Commonwealth or
its subdivisions, or such other uses as are authorized by the
Secretary of State. Pursuant to G.L. c. 2, s. 5, the state
secretary is charged with issuing regulations regarding the proper
use and display of the state Seal. In addition to providing
specifications to which any replication of the Seal must conform,
regulations promulgated by the Secretary of State permit, in
pertinent part, the use of the Seal to authenticate official
documents. The Seal may also be displayed on any building,
monument, equipment or structure of any governmental entity, and
may be displayed during an event sponsored by a governmental
entity. 950 CMR 34.11(1)(c). The regulations prohibit the use of
the Seal for commercial or advertising purposes. Moreover, under
G.L. c. 264, s. 5, it is a criminal offense to use the Seal of the
Commonwealth for any advertising or commercial purpose. The
foregoing statutory and regulatory provisions evidence an intent to
limit use of the Seal to identification and authentication of state
property, official state documents or state sponsored events. This
opinion under G.L. c. 268A furthers that legislative intent.

-----------------------------------
[1] This opinion also applies to use of the "coat of arms" of
the Commonwealth as described in 950 CMR 34.01(1)(a) promulgated by
the Secretary of State.

[2] With regard to a private citizen seeking public office,
the activities of such an individual are not within the
jurisdiction of the Ethics Commission. However, we would caution
such an individual that use of the Great Seal is subject to G.L. c.
264, s. 5 as well as regulations promulgated by the Secretary of
the Commonwealth.

[3] "State employee," 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. No
construction contractor nor any of their personnel shall be deemed
to be a state employee or special state employee under the
provisions of paragraph (o) or this paragraph as a result of
participation in the engineering and environmental analysis for
major construction projects either as a consultant or part of a
consultant group for the commonwealth. Such contractor or personnel
may be awarded construction contracts by the commonwealth and may
continue with outstanding construction contracts with the
commonwealth during the period of such participation; provided,
that no such contractor or personnel shall directly or indirectly
bid on or be awarded a contract for any construction project if
they have participated in the engineering or environmental analysis
thereof. G.L. c. 268A, s. 1(q).

[4] In deciding when the Seal is being used for campaign
(rather than official) purposes, the Commission will look by
analogy to decisions by the state Office of Campaign and Political
Finance (OCPF) interpreting G.L. c. 55. In particular, OCPF
interprets Anderson v. City of Boston, 376 Mass. 178 (1978), appeal
dismissed, 439 U.S. 1069 (1979), to prohibit the use of public
resources for purposes of influencing the nomination or election of
a candidate or in connection with promoting or opposing a ballot
question. See OCPF-IB-91-01.

[5] Campaign use of the Seal thus differs in kind from an
elected official's mere campaign statement that he already holds
the office, a statement allowed even on the official ballot by the
election laws. G.L. c. 53, ss. 34, 45; c. 54, s. 41.

[6] We note that for purposes of s. 23(b)(2), the raising of
$50 or more (for example) would constitute substantial value.
Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976);
Commission Advisory No. 8.

Page 383

End Of Decision