You are the Director of Maintenance for the Brockton Housing
Authority. The Authority owns and manages seventeen public
housing developments in Brockton. Most of the developments have a
full time maintenance staff assigned for the care and upkeep of
the buildings. This staff maintains housing authority property in
such areas as heating, plumbing, and grounds. Housing Authority
tenants, under their leases, are responsible for the installation
and repair of personal property inside of their apartments, such
as the installation of air conditioners and fans, interior
painting, and washing windows.
You have been informed that Housing Authority tenants have
solicited Authority employees to perform private repair and
maintenance work on behalf of the tenants. Authority employees
may have also solicited such private work from the tenants who
live in developments which the employees maintain as part of
their official duties. Employees have entered into private
business arrangements with tenants, have performed the work
outside of normal working hours and have been compensated by the
tenants for the services.
Upon the advice of the Housing Authority legal counsel, you
have instituted a written policy forbidding Housing Authority
employees from accepting anything of value from tenants for
maintenance work, and from maintaining or repairing a tenant's
personal property. The policy states:
Employees are prohibited from soliciting or accepting
payment of money, gratuities, gifts, or anything of value
from residents for work done in the resident's apartment.
This is true whether the work is accomplished on your own
time or company time. Employees are prohibited from
installing, removing, diagnosing, repairing, or maintaining
the private personal property of residents, at any time.
In promulgating this policy, you have relied on G.L. c.
268A, s. 3 and s. 23. You have articulated several reasons why
you have issued this policy. You believe that a unique
superior/subordinate relationship exists between Housing
Authority maintenance employees and tenants, particularly in
elderly housing developments, as the relationship is supervisory
in nature. Maintenance employees are usually the only Housing
Authority personnel on-site and are called upon by tenants to
initially respond to various issues, such as a disruptive tenant.
In eviction cases, the housing authority maintenance person may
be the initial witness. There are also issues concerning access
to tenant's apartments, possible coercion of tenants, and unfair
competition. You also indicate that tenants have contacted the
Housing Authority office in order to obtain private work from
Housing Authority employees or to make complaints regarding
dissatisfaction with some private work that was done in an
apartment. In your view, this practice involves the use of
official resources to facilitate private business dealings.
May the Housing Authority impose standards governing Housing
Authority employees' private business arrangements with Housing
Authority tenants which are consistent with the purposes of G.L.
c. 268A but which are more stringent than G.L. c. 268A?
Housing Authority maintenance employees are municipal
employees for purposes of G.L. c. 268A. G.L. c. 268A, s. 1(g);
see also, G.L. c. 121B, s. 7 (housing authority shall be
considered a municipal agency for purposes of c. 268A). As
municipal employees, they are subject to G.L. c. 268A, s.
23(b)(2), which prohibits a municipal employee from using his
official position to obtain unwarranted privileges of substantial
value  for himself or others which are not available to
similarly situated individuals.
The Commission has consistently interpreted s. 23(b)(2)
to prohibit public employees from soliciting private business
relationships from individuals over whom the public employee has
authority or a regulatory relationship. See e.g., EC-COI-93-6
(police officers prohibited from using position to solicit from
private citizens); 92-7 (legislator prohibited from soliciting
his aide for campaign activities); 84-61; 84-
56; 83-156; 82-64 (agency employee prohibited from soliciting
from clients and their families on behalf of private business);
81-66. Our concern in each of these opinions has been the
"inherently exploitative" or "inherently coercive" nature of the
relationship. See EC-COI-92-7. Any attempted private solicitation
by a public employee from individuals "who may be directly and
significantly affected by the authority of a [municipal] employee
at a given time . . . exploits an inherent pressure on those
individuals, resulting from that authority." EC-COI-84-61; 83-43;
see also EC-COI-83-156 ("s. 23 prohibits commercial arrangements
involving inherent exploitation by state employee of individual
with whom employee has acquired a relationship which turns on
trust or reliance in carrying out his state responsibilities"). A
public employee, who receives a private gain as a result of a
business relationship with one whom he oversees, "capitalizes"
upon his public position over the private individual. EC-COI-82-
64; see also EC-COI-93-6 (privilege obtained by police officer
"special consideration from potential donors that police officers
are able to obtain for private purposes by exploiting their
official powers"). In these circumstances, one may never know
whether the private party is objectively responding to the
solicitation or whether his decision is influenced by a pressure
to maintain good relationships with the public employee, or
whether any official dealings are affected by the private
dealing. See EC-COI-83-156; 82-64.
Additionally, this Commission has consistently interpreted
G.L. c. 268A, s. 23(b)(2) to forbid the use of official
resources, such as municipal telephones, copying machines,
secretarial services, or facilities to promote or assist a
private business enterprise. See e.g., EC-COI-93-6; 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"); 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").
The concerns underlying the solicitation of individuals with
whom a public employee has an official relationship are not
completely alleviated if the private individual, rather than the
public employee, is the solicitor. In this situation, an
appearance of impropriety exists, as issues are raised concerning
whether the public employee's impartiality will be affected in
his official dealings with the private individual and whether the
private individual feels compelled to request or use a public
employee's private business in order to maintain good will. See
EC-COI-92-7; In re Garvey, 1990 SEC 478, 479-80. Section 23(b)(3)
prohibits a municipal employee from engaging in conduct which
gives a reasonable basis for the impression that any person or
entity 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. The Commission has required that, if a public
employee is solicited to enter a private enterprise by a private
individual with whom he has official dealings, the public
employee must make a full written public disclosure to his
appointing authority. See EC-COI-92-7; In re Garvey, 1990 SEC
478; In re Keverian, 1990 SEC 460. This disclosure must
specifically state facts which clearly show that the relationship
is entirely voluntary and that it was initiated by the person
under the supervisory employee's jurisdiction. EC-COI-92-7.
Irrespective of who initiated the solicitation, such
relationships also raise issues under G.L. c. 268A, s. 3,
particularly if any payment to a public employee for private
services is not proportional to the services rendered. G.L. c.
268A, s. 3(b) prohibits a public employee from directly or
indirectly soliciting, accepting, or agreeing to accept anything
of substantial value for himself for or because of any official
act or act within his official responsibility performed or to be
performed by him. Section 3(a) places a corresponding prohibition
on anyone who offers or gives something of substantial value to a
public employee for or because of any official act or act within
the employee's official responsibility.
For purposes of s. 3 the nexus is met even if a donor gives
an item of substantial value to engender good will from a public
employee, or to thank a public employee for a "job well done."
EC-COI-93-8; In re Massachusetts Candy and Tobacco Distributors,
Inc., 1992 SEC 609; In re State Street Bank, 1992 SEC 582; In re
Stone and Webster Engineering Corporation, 1991 SEC 522, 523,
n.1. Accordingly, in evaluating whether s. 3 is implicated in a
private compensated business relationship between a public
employee and an individual with whom the public employee has
official dealings, the Commission may consider whether any fee
received by the public employee is commensurate with the services
rendered and whether the relationship falls within the ordinary
and usual course of commercial business dealings.
Housing Authority Conduct Policy
You question whether an agency may promulgate standards of
conduct to be followed by its employees which are stricter than
c. 268A. The Housing Authority Conduct Policy is stricter than c.
268A as it prohibits private business relationships between
housing authority employees and tenants, regardless of who
initiates the relationship. For the following reasons, we
conclude that an agency may institute stricter standards than c.
In G.L. c. 268A, s. 23(e), the Legislature provided that
"where a current employee is found to have violated the
provisions of [s. 23], appropriate administrative action as is
warranted may also be taken by the appropriate constitutional
officer, or by the head of a state, county, or municipal agency.
Nothing in this section shall preclude any such constitutional
officer or head of such agency from establishing and enforcing
additional standards of conduct." Accordingly, the Housing
Authority Board may institute and enforce standards of conduct
for its employees, in addition to the provisions of G.L. c. 268A.
The Commission, absent special circumstances, will defer to
an agency code of conduct which "gives guidance to its employees
in the area of conflict of interest and which is consistent with
the principles and aims of s. 23." EC-COI-85-12; 80-51. The
Housing Authority Conduct policy which you have implemented is
consistent with G.L. c. 268A, s. 23 and is based upon the same
concerns which this Commission has articulated in its
longstanding precedent under s. 23. In particular, your policy
addresses the problems of the use of official resources to assist
private business activities and the "inherent exploitation" when
a public employee enters a private business arrangement for
compensation with a private individual who relies on and is
directly affected by that public employee's performance of his
official duties. This Commission will defer to the Housing
 The Commission has defined substantial value to be $50
or more. See EC-COI-93-14; Commonwealth v. Famigletti, 4 Mass.
App. Ct. 584, 587 (1976). The Commission will also aggregate
amounts which are given or solicited for a common purpose in
calculating substantial value. See EC-COI-93-6, n.4; 92-23; 92-2.
End Of Decision