August 5, 1997



FACTS:


You have been elected to the Board of Selectmen of the Town of
Lenox. In your capacity as a private attorney, you would like to
post in The Beacon newspaper an advertisement offering municipal
legal services. The advertisement would include, among your other
professional and educational qualifications, that you are
"currently a Selectman for the Town of Lenox."[1]]


QUESTION:


May you include your current or past public official titles in
a description of your experience as part of a newspaper
advertisement offering municipal legal services as a private
attorney?


ANSWER:


Yes.


DISCUSSION:


As a member of the Board of Selectmen, you are a municipal
employee[2] for purposes of the conflict of interest law. As such,
you are subject to s. 23(b)(2) of G. L. c. 268A and may not "use or
attempt to use [your] official position to secure for [yourself] or
others unwarranted privileges or exemptions which are of
substantial value[3] and which are not properly available to
similarly situated individuals."

Page 682


We have previously concluded that s. 23(b)(2) does not
prohibit a member of the General Court who is also "of counsel" to
a law firm from having his firm announce accurately his status as
a member of the General Court as long as such an announcement is
made on law firm stationery rather than through an official
legislative press statement and the announcement does not in any
other way use legislative resources. EC-COI-89-31. Similarly, in
EC-COI-92-39, we noted that "it would be appropriate for even an
appointed official to include a present or former title as part of
biographical information in campaign literature." Id. at n. 3. In
that opinion, we concluded that s. 23(b)(2) prohibits an appointed
state official from using his official title to endorse a political
candidate. There, we reiterated that an appointed public
employee's official title is a public resource which may not be
used for private purposes such as endorsing a commercial product or
soliciting support for a political candidate from the official's
agency vendors.[4] Id.

In contrast, an accurate statement in an advertisement of a
public official's title in order to supply biographical information
is simply a statement of fact. In view of our advice in EC-COI-89-
31 and EC-COI-92-39
, we now clarify that s. 23(b)(2) does not
prohibit elected or appointed officials from accurately identifying
their current or past official titles in privately-funded
advertisements of their services. Such an advertisement does not
constitute an official's use of her official position to secure an
unwarranted privilege or exemption under s. 23(b)(2).[5]


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

*Pursuant to G.L. c. 268B, s. 3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1] The text of the advertisement reads, in pertinent part,
"Janet H. Pumphrey, Esq. . . . is available to provide town counsel
services to Massachusetts municipalities. A former long-term
Assistant City Solicitor and currently a Selectman for the Town of
Lenox, she has a wide range of municipal law experience . . . [her]
experience in municipal law balanced with her years as an elected
official affords her a unique perspective in town counsel services.
. . ."

[2] As a member of a board of selectmen in a town with a
population of fewer than 10,000, you are a special municipal
employee. G. L. c. 268A, s. 1(n). The distinction between a
"special municipal employee" and a "municipal employee" does not
affect the application of the conflict of interest law to the facts
of your request.

[3] The Commission defines "substantial value" to be
$50.00 or more. EC-COI-93-14 and n. 2.

[4] We also noted that an elected official may use his title
to endorse a political candidate. The elected official's title "forms
an inherent part of his or her political identity because it connotes
the important political fact of a successful electoral candidacy
and is, in any event, inevitably connected with the elected
official's name in the mind of the voting public." Id.

[5] Our opinion is necessarily limited to an analysis of the
issues raised under only s. 23(b)(2) based upon the facts
presented. Issues under other sections of G. L. c. 268A may arise
whenever a current or former public employee also works in the
private sector.

Page 683


End of Decision