January 26, 1993

FACTS:

You are a police officer in the Town of ABC and the
President of the ABC Police Relief Association (the Association).
The Association is a private, voluntary organization of ABC
police officers that raises funds for charitable purposes,
including a drug and alcohol abuse prevention program and special
events for children.

The Association wishes to solicit donations from ABC
residents and businesses. It may wish to employ a professional
solicitor for this purpose.


QUESTION:

What limitations does G.L. c. 268A establish for your and
the Association's solicitation activities?


ANSWER:

You and the Association may solicit funds from the public,
but s. 23(b)(2) of G.L. c. 268A prohibits police officers, [1] in
their solicitation of funds from the public, from:

1. Making statements or engaging in conduct exploiting
official police powers, i.e., that would lead reasonable persons
to infer that good or bad consequences in official dealings with
the police might flow from a decision whether or not to donate.

2. Using official resources of substantial value, including
paid time as on-duty police officers, or (even when off-duty)
official telephones, copying or fax machines, other public
supplies or facilities, official stationery or letterhead, any
municipal seal or coat of arms, or badges or uniforms.

In addition, G.L. c. 68, ss. 18-35 [2] and G.L. c. 41, s.
98E, [3] statutes not administered or enforced by this
Commission, apply to your and the Association's solicitation
activities.


DISCUSSION:

You and other ABC police officers are "municipal employees"
for the purpose of the state conflict of interest law. G.L. c.
268A, s. 1(g). As such, you and they are subject to s. 23(b)(2)
of the conflict law, which prohibits current public employees
from using their "official position[s] to secure for [themselves]
or others unwarranted privileges or exemptions which are of
substantial value and are not properly available to similarly
situated individuals."

Whenever public employees solicit anything of substantial
value [4] for a non-governmental purpose, the Commission has
consistently scrutinized the solicitation for compliance with s.
23(b)(2). In particular, we have examined whether public
employees are soliciting from those with whom they have official
dealings, and whether the solicitation is using public resources
for non-governmental purposes. We must therefore analyze your
solicitation activities in both of these respects [5].


1. Soliciting from regulated persons.


The Commission has consistently held that s. 23(b)(2)
prohibits public employees, in both their public and private
capacities, from soliciting anything of substantial value from
persons within their regulatory jurisdiction [6] for a non-
governmental purpose, unless the solicitation is specifically
authorized by law [7]. See, e.g., EC-COI-92-28 (Governor may not
solicit donations to non-governmental entity from corporations
subject to state regulation); 92-12 (state board member
prohibited from privately soliciting individuals under his
regulatory authority); 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).
The

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Commission has based this conclusion on its long experience with
what the opinions just cited call the "inherently exploitative"
or "inherently coercive" circumstances of such solicitations. For
examples of Commission enforcement actions presenting such
circumstances, see In re Pezzella, 1991 SEC 526, 528 (disposition
agreement fining Governor's staff member for unauthorized
solicitation of Governor's appointee to advance friend's private
interest); In re Singleton, 1990 SEC 476 (disposition agreement
fining a fire chief for attempting to use his official position
to solicit private business); In re Burke, 1985 SEC 248 (fining
official for using his official position to obtain access for
private purposes to persons his agency regulated) [8]; In re
Lannon
, 1984 SEC 208 (disposition agreement fining school
superintendent for soliciting loans from subordinate teacher)
[9]; In re Antonelli, 1982 SEC 101 (fining county treasurer for
soliciting personal loan from banks seeking deposits of county
funds); Compliance Letter 82-2, 1982 SEC 80 (soliciting city
employees, vendors and city-regulated businesses for
contributions to Mayor's wife's "birthday party" violated
predecessors of s. 23[b][2], [3]) [10].

Our usual concern about solicitation by public employees is
exacerbated here by the substantial and pervasive authority of
police officers over all residents of and businesses in the
municipality, including the statutory powers to carry weapons and
make arrests, see G.L. c. 41, s. 98, and to make warrantless
administrative inspections of certain regulated businesses. See
G.L. c. 140, s. 66; Commonwealth v. Eagleton
, 402 Mass. 199
(1988). In this connection, we note that the Attorney General's
Division of Public Charities has officially warned of the special
problems that solicitations by police and firefighter
organizations pose, and has cautioned citizens "not [to] feel
threatened or intimidated by [such a] solicitation, or pressured
to make a donation." Attorney General, Report on Charitable
Fundraising 8 (Nov. 1992).

On the other hand, the Legislature has specifically
addressed these solicitations by enacting G.L. c. 41, s. 98E,
which provides in its entirety: "No person or persons shall
solicit the public in any manner or form using the word `police'
or `firefighter' or any derivative thereof without using the name
or names of the city or town police or firefighters organization
sponsoring such solicitation." Conscious of our duty to construe
statutes relating to the same subject together "so as to
constitute an harmonious whole consistent with the legislative
purpose," Saccone v. State Ethics Commission, 395 Mass. 326, 334
(1985), we recognize that s. 98E in effect condones some
solicitations by police and firefighter organizations, subject to
the identification requirement it establishes. See EC-COI-92-28
n.4; 92-12 n.10 (both suggesting that campaign finance law's
exemption of elected officials from prohibition against
compensated public employees' soliciting or receiving political
campaign contributions, in G.L. c. 55, s. 13, in effect generally
allows such officials to solicit political contributions in their
private capacities for purpose of s. 23(b)(2)). In effect,
notwithstanding our usual "per se" interpretation of s. 23(b)(2)
as prohibiting all unauthorized solicitations by public employees
of those they oversee, s. 98E allows private solicitations by
police and firefighter associations under certain conditions.

It does not follow from s. 98E, however, that no other
statute regulates solicitations by associations of police
officers. "Statutes which do not necessarily conflict should be
construed to have consistent directives so that both may be given
effect." Kargman v. Commissioner of Revenue, 389 Mass. 784, 788
(1983). Certainly, G.L. c. 68, ss. 18-35 apply; these statutes
are concerned, for example, with false or deceptive
solicitations, and are enforced by the Attorney General's
Division of Public Charities.

The same rule of construction applies to s. 23(b)(2) of the
conflict law. See, e.g., EC-COI-92-12 (comprehensive statutory
regulation of campaign finance in G.L. c. 55 did not prevent
applying s. 23(b)(2) to soliciting campaign contributions in some
contexts). This is especially true in view of the courts'
consistent recognition of the conflict law as "comprehensive
legislation [enacted to] strike at . . . inequality of treatment
of citizens and the use of public office for private gain."
Everett Town Taxi, Inc. v. Board of Aldermen of Everett, 366
Mass. 534, 536 (1974); McMann v. State Ethics Commission, 32
Mass. App. Ct. 421, 427 (1992) (both quoting Special Commission
on Code of Ethics, Final Report, H. 3650, at 18 [1962]). Here, s.
23(b)(2) at least forbids statements or conduct by police
officers that exploit their official powers. Since s. 23 (as
appearing in St. 1986, c. 12, s. 14) imposes liability for
violations committed "knowingly, or with reason to know," the
test is not whether the public employee subjectively intends
the statement or conduct to be coercive, but whether reasonable
persons would infer from it that good or bad consequences in
their official dealings with the police might flow from their
decisions whether or not to donate.

Thus, examples of prohibited solicitation activities would
include: representing that a donation (including purchasing
tickets to a fundraising event or purchasing an advertisement in
a publication) could result in

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preferential police treatment, or that failure to donate could
result in police reprisals [11]; implying that a decision whether
or not to donate could affect the timing or quality of police
services [12]; and the practice (mentioned in our public request
for comments, see note 5 supra) of sending stickers or decals
intended for display on donors' private automobiles, from which,
in our judgment, reasonable persons would infer the hope of
favorable treatment -- or of avoiding adverse treatment -- by the
police [13]. On the other hand, if police officers (personally
and through their association and agents, see part 3 below) do
not engage in such prohibited activities, and do not use official
resources (see part 2 below), G.L. c. 268A will not prohibit them
from soliciting funds for their private association from the
public -- whether through advertisements, telephone or door-to-
door solicitations, or fundraising events.


2. Prohibited use of official resources.


We have also consistently held that s. 23(b)(2) prohibits
public employees from using official resources for 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"); EC-COI-92-5 (using state seal or state coat of arms
for campaign purposes "benefits a personal rather than a public
interest," and is therefore prohibited by s. 23(b)(2)).

Far from limiting this principle, G.L. c. 41, s. 98E (quoted
in part 1 above) supports it. That statute seems clearly intended
to distinguish police officers' private solicitations from their
public duties; that is the same purpose served by s. 23(b)(2) in
prohibiting use of public resources for private purposes. While
we recognize and commend the many beneficial purposes for which
police associations raise funds, s. 23(b)(2) -- and the principle
it embodies, of public employees' accountability for their use of
public resources -- applies "even if [these purposes] are public-
spirited in nature." Public Enforcement Letter 92-3.

Therefore, police officers may not solicit for their private
association while on duty. Even when off duty, they may not use
official resources of substantial value, including official
telephones, copying or fax machines, or other public supplies or
facilities [14]. They may not use official stationery or
letterhead, any municipal seal or coat of arms, or badges or
uniforms, in their private solicitation activities, because these
public insignia "could reasonably be perceived as an endorsement
by a public agency of the solicitation [or give] the appearance
that the solicitation is officially sponsored . . . [or] foster a
sense of credibility which the solicitation might not otherwise
have had." EC-COI-92-5. See Public Enforcement Letter 89-4, 1988
SEC 369; In re Buckley, 1983 SEC 157. For similar reasons, they
may not use their official police rank [15], since we have found
an appointed public employee's official title to be a public
resource for this purpose. EC-COI-92-39 and cases cited.


3. Application to associations and agents.


Section 23(b)(2) applies not only to personal acts of public
employees, but also to acts of their agents, so long as the
public employees know or (in the words of s. 23) have "reason to
know" of those acts taken on their behalf. Thus, we have
previously applied s. 23(b)(2) to public employees' associational
activities. In Compliance Letter 82-2, 1982 SEC 80, we attributed
to Boston Mayor Kevin White the solicitation activities of a
"Birthday Celebration Committee" composed of his close
associates, since he knew the general nature of the solicitation
activities, although he did not know exactly whom the "Committee"
was soliciting [16]. More recently, in EC-COI-92-23, we advised
Town Clerks that they would violate s. 23(b)(2) if their private
association accepted funds from a private news service in return
for the Clerks' calling the service with immediate election
results.

We acknowledge the constitutional rights to associate and to
solicit funds for charitable purposes. See, e.g., Riley v.
National Federation of the Blind of North Carolina
, 487 U.S. 781
(1988). However, narrowly tailored regulation is permissible to
promote the compelling government interest in the integrity of
public employees. See Pickering v. Board of Education, 391 U.S.
563, 568 (1968); National Treasury Employees Union v. United
States
, 788 F. Supp. 4 (D.D.C. 1992). There is an important
public interest in regulating even the off-duty activities of
police officers to promote public integrity, especially if (as
here) the activities do not constitute "pure" speech. See O'Brien
v. DiGrazia,
544 F.2d 543 (1st Cir. 1976), cert. denied, 431 U.S.
914 (1977); Broderick v. Police Commissioner of Boston, 368 Mass.
33 (1975); Wilmarth v. Town of Georgetown, 28 Mass. App. Ct. 697,
701-03, further appellate review denied, 408 Mass. 1103 (1990).
We are satisfied that our narrow application of s. 23(b)(2) here,
to prohibit both specific exploitation of official police powers
and the use of official resources for the

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purpose of private solicitations, easily meets the constitutional
standard [17].


Therefore, this opinion's advice applies to police officers
when acting through the Association and its agents, including any
"professional solicitor" (defined in G.L. c. 68, s. 18) that it
retains. We note that G.L. c. 68, s. 22 requires most contracts
between charitable organizations and professional solicitors to
be in writing and to be filed with the Attorney General's
Division of Public Charities, and you would be well advised to
include contract provisions that incorporate this opinion's
conclusions in order to indicate reasonable efforts to seek
compliance with s. 23(b)(2) by the association's professional
solicitor.


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


[1] This advice applies to police officers' private
solicitation activities whether taken personally or through their
private association or agents, acting on their behalf with their
knowledge or reason to know, as discussed in part 3 below.

[2] These statutes regulate charitable solicitations in
general and are enforced by the Attorney General. You may obtain
information about them from the Attorney General's Division of
Public Charities.

[3] As discussed in part 1 below, s. 98E requires anyone
soliciting the public using the word "police" or "firefighter"
(or any derivate thereof) to use the name of the police or
firefighters organization (here, the "ABC Police Relief
Association") sponsoring the solicitation.

[4] Anything valued at $50 or more is "of substantial
value." Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587
(1976); Commission Advisory No. 8 (Free Passes) (1985). Since
amounts solicited for a common purpose are aggregated, see EC-
COI-92-23; 92-2
, we assume in this opinion that the total value
of all the donations you solicit will be at least $50 and thus
"of substantial value."

[5] Because the application of G.L. c. 268A to solicitations
by associations of police officers is an important question of
first impression, we publicly invited legal arguments from any
interested person. We acknowledge helpful submissions by the law
firms of Sandulli, Grace, Shapiro & Horwitz (on behalf of the
Massachusetts Coalition of Police, AFL-CIO); Roche, Carens &
DeGiacomo; Brooks & Lupan; and Cosgrove, Eisenberg & Kiley, P.C.
(on behalf of the Massachusetts Police Association).

[6] The Commission has reached the same conclusion about
soliciting others with whom a public employee has official
dealings, including subordinate employees and agency vendors. See
EC-COI-92-7
.

[7] General Laws c. 268A, s. 3(b) also prohibits a public
employee from either soliciting or receiving anything of
substantial value "for himself" from such persons. See EC-COI-92-
2
. Because your and the Association's solicitations seem from
your facts to be on behalf of others than the member police
officers themselves, this discussion focuses on s. 23(b)(2).

[I]n addition, s. 23(b)(3) may apply. It prohibits a
public employee from engaging in conduct that 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, but allows the employee to dispel any such
impression by written public disclosure. However, its
requirements are no more restrictive here than those of s.
23(b)(2), and in any event could be satisfied by written public
disclosure to the police officers' appointing authority.

[8] The Commission relied primarily on s. 3 in this case,
which was decided at a time when the Commission lacked authority
to enforce s. 23. See Saccone v. State Ethics Commission, 395
Mass. 326 (1985); St. 1986, c. 12, ss. 2, 6 (amending and
reenacting s. 23 and conferring Commission jurisdiction to
enforce it as of April 8, 1986). See also In re Burke, 1985 SEC
248, 249 nn.4 & 5, 253 n.12.

[9] The Commission relied on the predecessor of s. 23(b)(3)
here, in circumstances where it would also find a violation of s.
23(b)(2) today. See EC-COI-92-7.

[10] We decline to abandon this longstanding interpretation
of s. 23(b)(2) and its predecessors, as we have been urged on
various grounds. In particular, any interpretation of
"privileges" that excludes gifts of money is belied by the
Legislature's 1986 reenactment of what is now s. 23(b)(2), see
note 8 supra, adding the "knowingly, or with reason to know" and
"substantial value" requirements, following our well publicized
Compliance Letter 82-2. See Lorrilard v. Pons, 434 U.S. 575, 580-
81 (1978) (when, after agency construes statute, legislature
reenacts it without material change, legislature is presumed to
adopt agency construction); Commonwealth v. Miller, 385 Mass.
521, 524 (1982) (same for judicial construction); 2B N. Singer,
Sutherland on Statutory Construction s. 49.09 (5th ed. 1992).
Furthermore, the "privilege" here may be best viewed, not as the
gifts of money themselves, but as the special consideration from
potential donors that police officers are able to obtain for
private purposes by exploiting their official powers. Finally,
any reading of the phrase "similarly situated individuals" (also
added in the 1986 reenactment) to refer only to other police
officers would deprive the statute of much of its meaning;
instead, we read it here to apply to others soliciting charitable
donations.

[11] In a civil action by the Attorney General under G.L. c.
68 and c. 93A, the Superior Court recently enjoined a
professional solicitor for a police organization from "falsely"
making such a representation. Commonwealth v.

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G.M.C. Advertising, Inc., No. 91-3472 (Mass. Super., Suffolk Apr.
22, 1992). Our construction of s. 23(b)(2) forbids such
representations whether they are true or false, if reasonable
persons would infer that they might be true.

[12] See, e.g., In re Singleton, 1990 SEC 476, 477-78 (fire
chief told contractor from whom he was soliciting private
construction business that "it could take forever to obtain
[necessary Fire Department] inspections").

[13] In State Police Ass'n of Massachusetts v. Massachusetts
Police Ass'n
, No. 79-2219 (Mass. Super., Middlesex 1979), a
consent judgment enjoined an organization of municipal police
officers and its professional solicitor from (among other things)
falsely representing that automobile bumper stickers sent to
donors would give them "a break" if stopped by a state police
officer, a representation which the plaintiff state police union
alleged to be the defendants' practice. We also note the
following statement in a January 15, 1993 letter to this
Commission from Kenneth T. Lyons, National President,
International Brotherhood of Police Officers, NAGE, AFL-CIO: "I
can assure you that many citizens respond . . . because they
believe the window decals prove beneficial if they are involved
in any kind of traffic violation."

[14] For example, the telephone number printed on the
Association's stationery appears to be that of the Police
Department. This use of public resources for your Association's
private purposes must be discontinued (unless authorized by
statute or bylaw).

[15] We believe they may truthfully answer questions asking
whether they are police officers.

[16] By reenacting what is now s. 23(b)(2) following this
widely publicized compliance letter, adding only requirements
that would not alter the result, the Legislature is presumed to
have adopted this construction of s. 23(b)(2). See note 10 supra.

[17] Since your facts indicate that the Association raises
funds solely for charitable purposes, we need not consider here
what effect, if any, G.L. c. 150E might have on our analysis if
the Association engaged in collective bargaining.

End Of Decision