January 26, 1993

FACTS:


You are the Chief of a municipal fire department in the
Commonwealth. Two trade shows are held in Massachusetts for Fire
Chiefs and are sponsored by the New England Association of Fire
Chiefs, Inc. and the New England Division of the International
Association of Fire Chiefs. These shows include over 100 vendor
companies who exhibit fire apparatus, fire fighting equipment,
emergency medical equipment, fire dispatching equipment and
ambulances.

After a community receives delivery of a piece of new or
refurbished equipment, the vendor may request that the equipment
be displayed at a trade show. It is common practice for a Fire
Chief to transport the equipment to the show and to use on-duty
firefighters who remain at the show with the equipment. The
vendor does not provide travel expenses or reimbursement for this
service.


QUESTION:

Does G.L. c. 268A permit firefighters to lend official
resources to a vendor for sales purposes or to provide an
endorsement of a particular vendor?



ANSWER:

Firefighters may not use official resources (such as
equipment and personnel) to promote vendor sales of a product,
unless the use is authorized by a bylaw, or is an explicit
contract condition, or the municipality is provided with
reasonable reimbursement. Firefighters may not use their official
position or title to endorse a product on behalf of a vendor.


DISCUSSION:

As a Fire Chief, you are a municipal employee for purposes
of the conflict law. G.L. c. 268A, s. 23(b)(2) prohibits a
municipal employee from knowingly, or with reason to know, using
his official position to secure for himself or others an
unwarranted privilege of substantial value [1] which is not
available to similarly situated individuals. The Ethics
Commission has consistently interpreted this section to forbid
public officials from using public resources to further private
interests. See Public Enforcement Letter 92-3 (public employee
who used public resources to assist private non-profit
organization violated s. 23(b)(2)); EC-COI-93-6; 92-28; 92-12;
Public Enforcement Letter 89-4; In re Buckley
, 1983 SEC 157. You
will be using your official position to secure an unwarranted
privilege for the vendor if you permit a private vendor, for
sales purposes, to utilize fire department equipment and
personnel at no charge.

We note that s. 23(b)(2) will not be violated if the Town,
in its purchase contract with the vendor, expressly agrees to
provide the equipment for display purposes. See EC-COI-87-37
(state contract which included vendor discount to all state
employees did not violate s. 23); compare EC-COI-88-5 (contract
conditions are not adequate for purposes of compliance with G.L.
c. 268A, s. 3). Presumably, the contract price will reflect this
provision. Further, if the vendor agrees to reimburse the
municipality for the use of official resources and personnel,
including a reasonable rental for use, the vendor will not
receive an unwarranted privilege. Similarly, if the municipality
passes a bylaw or ordinance permitting such a practice, s. 23
will not be violated. See EC-COI-91-13; Public Enforcement Letter
90-4
[2]. Finally, if the trade show was arranged so that the
exhibit of municipal equipment was in a separate area from the
vendor booths and exhibits, we would not have the same concerns
under s. 23(b)(2).

Section 23(b)(2) also prohibits a public employee from using
his official title or position to endorse a private commercial
product. In applying s. 23(b)(2) to an endorsement by a public
employee, the Commission considers whether the activity or
conduct in question exceeds the scope of a public employee's
official duties, "and whether the activity or conduct benefits a
private or personal, as distinct from a public interest." EC-COI-
84-127; 83-82
. In EC-COI-84-127, the Commission concluded that a
judge could not use his position in a paid advertisement for an
oil company because the advertisement was not within the official
duties of his office and the use of his name clearly benefitted a
private interest. The Commission stated:

. . . the lending of the prestige of your office to the
Corporation for the purpose of selling its products
constitutes an unwarranted privilege to the Corporation. The
appearance of your name and identity in a commercial might,
in the eyes of some viewers, imbue the corporation's product
with a degree of credibility it might not otherwise have.

The Commission's position 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

-492-

CFR part 2635. See EC-COI-92-28 (Commission used these
regulations for guidance in interpreting s. 23 within the context
of private solicitation by a public official); 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. Particularly,
5 CFR 2635.702(c) prohibits a federal employee from using or
permitting the use of his Government position or title or any
authority associated with his public office to endorse any
product, service or enterprise except under certain limited
circumstances [3].

Therefore, s. 23(b)(2) will prohibit you from using your
official title in an advertisement which promotes a vendor's
products or from serving as a representative in a vendor's booth
at the trade show [4]. This section will not prohibit you from
responding to questions from your colleagues, speaking at a
seminar concerning your experiences with a certain piece of
equipment, or writing a letter of reference as required by
another government agency's contract specifications. If you are
asked to give a presentation you should take care that you do not
provide an endorsement of a vendor or use your title and the
prestige of your office to further the vendor's products [5].


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


[1] The Commission has defined "substantial value" to be $50
or more. See Commonwealth v. Famigletti, 4 Mass. App. 584, 587
(1976); Commission Advisory No. 8.

[2] If the use of official resources is warranted, issues
may develop under s. 23(b)(3). Section 23(b)(3) provides that a
municipal employee may not act in a manner which would cause a
reasonable person, having knowledge of the relevant
circumstances, to conclude that any person can improperly
influence him or unduly enjoy his favor in the performance of his
official duties or that he is likely to act or fail to act as a
result of kinship, rank, or position of any person. EC-COI-89-16
(past friendship relationship); 88-15 (private dealings with
development company); 85-77 (private business). You may wish to
file a full written disclosure with your appointing authority
prior to participating in a matter affecting a vendor whom you
are assisting. See EC-COI-91-3; 90-2; 89-19.

[3] For example, an endorsement may be permissible if the
agency's statutory mission includes assisting in the promotion of
a product or service, such as the Department of Commerce, which
is charged with assisting the export activities of United States
companies, promoting United States products abroad. The other
narrow exemption would permit an official, such as the Director
of the Environmental Protection Agency, to send a letter to a
company stating that the company was in compliance with EPA
regulations. 5 CFR 2635.702(c), examples 2, 3.

[4] This prohibition on endorsements applies to you even if
the use of official resources, as discussed above, is warranted.

[5] These examples are intended to be representative of
situations that you may encounter and do not constitute an all-
inclusive list. You are advised to contact the Commission for
further advice if you question how s. 23 applies in a particular
situation.


End Of Decision