February 25, 1994

FACTS:


A state agency proposes to make certain passes available to
certain state officials, specifically members of the General
Court, constitutional officers and cabinet secretaries. The
agency has not yet determined what amount, if any, to charge for
these passes. When a charge is established, in all likelihood,
the value of the pass will exceed $50 when the price of the pass
is compared to the fees which otherwise would be incurred.

The proposed granting of passes is a goodwill gesture in
recognition of the status and position of these officials, and
their need to engage in frequent scheduled and unscheduled
travel. The Agency has always provided free passes to the
Governor and Lieutenant Governor. The Governor's office is
currently assigned four such passes; the Lieutenant Governor's
office one.


QUESTIONS:


1. Does G.L. c. 268A, s. 3 prohibit the Agency from
providing, and the state officials from receiving, passes for
free or at a reduced fee?

2. Does G.L. c. 268A otherwise permit receipt of free or
reduced fee passes?


ANSWERS:

1. No.

2. Yes, provided that the passes are used only in
connection with official state business.



DISCUSSION:

Section 3


This opinion presents an opportunity for the Commission to
re-evaluate a question raised in a prior opinion, EC-COI-92-37,
within the context of a factual record that more squarely
presents the issue. In 92-37, the Commission considered, among
other things, whether a legislator may accept free or discounted
office space for a district office from a donor who may be a
political subdivision of the Commonwealth. That decision, which
held that G.L. c. 268A, s. 3 was applicable, focused primarily on
the gift from a private donor, such as a business associate or
constituent, with little or no discussion of the distinction
between such a donor and a public entity donor. We now conclude
that where an item of substantial value is given to a public
employee as the result of an official act of the Commonwealth or
a political subdivision thereof, no issue is raised under s. 3.

General Laws c. 268A, s. 3(a) provides: "Whoever otherwise
than as provided by law for the proper discharge of official
duty, directly or indirectly, gives, offers or promises anything
of substantial value[1] to any present or former state, county or
municipal employee or to any member of the judiciary, or to any
person selected to be such an employee or member of the
judiciary, for or because of any official act performed or to be
performed by such an employee or member of the judiciary or
person selected to be such an employee or member of the
judiciary" violates that section of the conflict law. A
corresponding provision under s. 3(b) prohibits receipt of items
of substantial value for or because of a state employee's
official duties. Read literally, the word "whoever" in s. 3(a)
would appear to prohibit the Agency's furnishing of these
passes. Thus, we must first consider whether s. 3(a) is intended
to apply where the Commonwealth, a state agency, or a political
subdivision of the Commonwealth is the giver. Under G.L. c.
4, s. 7(23), the word "whoever" has the same statutory definition
as "person" and includes "corporations, societies, associations,
and partnerships". "[I]t is a widely accepted rule of statutory
construction that general words in a statute such as 'persons'
will not ordinarily be construed to include the State or
political subdivisions thereof." Hansen v. Commonwealth, 344
Mass. 214, 219 (1962); Howard v. Chicopee, 299 Mass. 115, 121
(1937); New Bedford v. New Bedford, Woods Hole, Martha's Vineyard
Nantucket S.S. Authy.,
329 Mass. 243, 250 (1952). While some
jurisdictions have adopted an exception to this general rule of
statutory construction where the statute at issue is "intended to
prevent injury and wrong", Nardone v. United States, 302 U.S.
379, 383-384 (1937), this exception has not been adopted in
Massachusetts. See Kilbane v. Secretary of Human Services, 14
Mass. App. Ct. 286 (1982) (holding that the Commonwealth is not a
"person" within the meaning of G.L. c. 266, s. 91 concerning
false advertising); see also Commonwealth v. Elm Medical
Laboratories, Inc.,
33 Mass. App. Ct. 71, 76-77 (1992)
(Commonwealth not a "person" for purposes of the State Civil
Rights Act). Applying this general rule of statutory
construction, we conclude that the state agency's official
proposal to furnish free or reduced fee passes to certain state
officials does not raise issues under s. 3(a), because, by its
terms, s. 3 does not contemplate the situation where the
Commonwealth is the giver.

This conclusion is supported by our observation that s. 3 is
not designed to prevent lawful acts of the Commonwealth or its
political subdivisions. Compare Attorney General v. Woburn, 322
Mass. 634, 637 (1948) (where "whoever" construed to include
municipalities because the legislative objective -- preventing
discharge of sewage into rivers -- would not be possible if
cities and towns were exempted). Rather, we have previously
recognized that "[t]he preventative purpose of s. 3 is to
preclude public employees from 'temptations which would undermine
the impartial performance of their duties, and permit multiple
remuneration for doing what employees are already obliged to do -
- a good job.'" EC-COI-89-25 (quoting In re Michael, 1981 SEC 59,
68). Such potential for preferential treatment of the donor is
clearly present when the donor is a private person or entity with
business before the Commonwealth, and our decisions recognize as
much. See, e.g., EC-COI-84-14, (car purchase discount); 85-42
(state employee prohibited by s. 3 from accepting offer of
discount mortgage from individual). Here, however, it is the
Government who gives the pass, not for the purpose of securing
favorable treatment for itself, but in recognition of Government
employees' work for and travel on behalf of the Government. In
such a case, we believe that the financial temptation or pressure
to influence public officials that s. 3 is designed to prevent is
not present. Accord Muschany v. United States, 324 U.S. 49, 64-68
(1944) (challenged contract was not against public policy as
articulated in conflict of interest laws, because there is a lack
of financial temptation or political pressure to influence public
officials where payments under the contract come from the
government and not a third party).[2]

With regard to the state official's receipt of the pass, we
note that the conflict of interest law must be given a workable
meaning. Graham v. McGrail, 370 Mass. 133, 140 (1976). In light
of the fact that we have concluded that s. 3(a) should not apply
to free or reduced fee passes given officially by a state agency,
we must also conclude that the state officials in question do not
violate s. 3(b) by receiving these passes.


Section 23


The state officials are nonetheless subject to G.L. c. 268A,
s. 23(b)(2), which prohibits the knowing use or attempted use of
their official positions to secure for themselves or others
unwarranted privileges or exemptions of substantial value, which
are not properly available to similarly situated individuals. The
Commission concludes that the officials would violate s. 23(b)(2)
by receiving free or reduced fee passes, unless the passes were
restricted to use for government purposes.

Our decision is guided by the principles expressed in EC-
COI-86-17
, where we reviewed an automobile discount policy
offered to selected law enforcement officers. We concluded that
acceptance of the discount violated s. 23(b)(2). We said:

In the case of a selective discount to a public employee,
the employee is able to realize a benefit from which the
public is excluded. Receipt of such a benefit negates the
trust that the public is entitled to place in public
employees: that public, not private, interests are furthered
when the public employee performs his duties. In such a case
the private citizen may reasonably ask why a public official
is entitled to compensation or benefits over and above what
the taxpayer has authorized and from which he has been
excluded. As the Commission stated in EC-COI-83-4, s. 23
prohibits as an unwarranted privilege a favoritism policy
under which "those who serve the people are treated better
than the people themselves."
EC-COI-86-17.

Therefore, the proposed free or reduced fee annual pass
policy violates s. 23 if the pass can be used for personal, non-
government purposes. On the other hand, as we pointed out in EC-
COI-86-17
, s. 23 does not preclude the use of such passes in
connection with the performance of official duties. This is
because the state officials "are entitled to reimbursement from
the commonwealth for any travel expenses incurred in the
performance of their official duties. Inasmuch as they would be
entitled to free passage from the commonwealth in any event, the
fact that the state agency, rather than [their respective state
agencies or] the General Court, bears the burden of the expense
does not grant an unwarranted privilege to them, within the
meaning of s. 23(b)(2)." Id. Thus, we conclude that no issue is
raised under s. 23(b)(2), where the state official is otherwise
entitled to reimbursement of business related travel, and uses
the pass in lieu thereof.

In summary, we conclude that the giving or receipt of these
passes does not violate G.L. c. 268A, s. 3. In order to comply
with s. 23(b)(2), however, free or reduced fee passes may only be
distributed to state officials for use in connection with the
exercise of their official duties. Passes which are used for
other purposes will violate s. 23 if the value of that usage
exceeds $50 in any calendar year.


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


[1] Anything valued at $50 or more is "of substantial
value". Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587
(1976); Commission Advisory No. 8.

[2] We caution, however, that this opinion is limited to
situations where the state agency acts as such officially to
supply the public employee with an item of substantial value.
Therefore, nothing in this opinion should be construed as holding
that ss. 3(a) and 3(b) are inapplicable to gifts made by one or
more state employees to another state employee. Where the
appropriate nexus is established, i.e., where the item of
substantial value is given for any "official act performed or to
be performed", the donor in such a case violates s. 3(a), and the
recipient violates s. 3(b). This is because the gift comes not
from the Commonwealth through its official action, but from the
state employee, who is clearly subject to s. 3(a). The potential
for preferential treatment or improper pressure on official acts
addressed by s. 3 is present in such a case, where, in this case,
it is not present.

End Of Decision