May 12, 1998


FACTS:


You are the Chief of the Administrative Law Division
("Division Chief") of the Office of the Attorney General ("OAG").
Your official duties include advising counsel for all state
agencies about legal issues that are or may be the subject of
litigation, supervising other assistant attorneys general and
special assistant attorneys general in the handling of litigation
on behalf of state agencies, and directly handling such litigation
yourself. Carrying out these duties often involves preparing
educational materials and conducting training sessions for
assistant attorneys general and agency counsel on legal issues
related to government practice, drafting and reviewing proposed
regulations and legislation, and recruiting and interviewing
candidates for positions in the Division and the OAG in general.

Since August 1997, you have also been serving as Chair of the
Public Law Section ("Section Chair") of the Massachusetts Bar
Association, a private organization that supports the activities of
lawyers within the Commonwealth. The mission of the Section is to
promote congeniality among public and private sector lawyers,
provide a forum for discussion of public law issues and ethical
concerns, develop continuing legal education programs and
materials, and promote public sector law as a career.

You report that your duties as Section Chair substantially
overlap with your duties as Division Chief, and that it is
difficult for you to confine your activities as Section Chair
strictly to hours outside of your normal working hours as Division
Chief. As a result, you requested the Attorney General's
permission to spend approximately three hours per week on Section
activities, and to use the Office's telephones, fax machine and
word processor for such activities. The Attorney General
acknowledged that your participation as Section Chair "reasonably
fits within your area of official responsibilities as part of your
role" as Division Chief. He granted your request in writing,
allowing you to participate in Section Chair activities "to the
extent it is necessary" during your normal working hours, with the
proviso that you must provide advance notice to the OAG if the
Section is going to take a public position on an issue of legal
policy that differs from the position of the OAG. In such
circumstances, the Attorney General concluded that it may be
necessary for you to recuse yourself from further participation as
Section Chair in the matter.


QUESTION:


Does G. L. c. 268A, s. 23(b)(2) permit you, as Division Chief,
to use state time and state resources, such as the telephones, fax
machine, and word processor, to perform your duties as Chair of the
Public Law Section of the Massachusetts Bar Association when your
appointing authority has determined in writing that your duties as
Section Chair reasonably fit within your official state duties and
has also approved your use of such state time and resources to the
extent it is necessary?


ANSWER:


Section 23(b)(2) of G. L. c. 268A will permit you to use state
time and resources, to the extent necessary, to perform those
duties as Chair of the Public Law Section of the Massachusetts Bar
Association that are (i) in furtherance of the public interest;
(ii) interconnected with your duties as Division Chief; and (iii)
not used toward partisan political ends; provided that you obtain,
in advance, your appointing authority's written approval of your
proposed use of state time and resources and such written approval
specifies that your use of state time and resources satisfies these
three conditions.


DISCUSSION:


As an employee of the Attorney General's Office, you are a
state employee[1] for purposes of the conflict of interest law. As
such, you are subject to, among other sections of the conflict
law, G. L. c. 268A, s. 23(b)(2) which prohibits a public employee
from using or attempting "to use his official position to secure
for himself or others unwarranted privileges or exemptions which
are of substantial value and which are not properly available to
similarly situated individuals." (emphasis added).

The term "unwarranted" is not defined in c. 268A.[2] As a
result, we have noted that we may apply common experience and
common sense in interpreting such words as they appear in the
conflict law. EC-COI-87-37; EC-COI-95-5. In common usage
"unwarranted" means "lacking adequate or official support"[3] or
"having no justification; groundless."[4][5]

We previously have concluded that the use of public resources
by public employees for personal purposes constitutes an
unwarranted privilege not available to similarly situated
individuals. EC-COI-95-5. "Section 23(b)(2) dictates that the use
of public time and resources must be limited to serving the public
rather than private purposes." Id. See also EC-COI-92-4; 91-6
(public officials may not use public time, personnel, facilities,
equipment (telephones, copiers, fax machines), titles, etc. in
conducting private business).[6]

Your proposed use of state time and resources for Section
activities does not appear to be for personal purposes. The issue
here, rather, is whether the use of state resources and time in
support of your Section activities is warranted, based upon the
authorization you have already received. In circumstances similar
to yours, we advised the Commissioner of the Department of
Corrections, in EC-COI-84-70, that he could use Department staff
and resources to process registration information in connection
with a national conference on parole and probation, which was
sponsored by a private, non-profit organization in which the
Commissioner served as an officer, provided that the use of
such resources was:

1. in furtherance of the public interest in general, rather than
in pursuit of private gain (either of an individual or a particular
private interest group);

2. interconnected with the business of that department of state
government . . . ;[7]

3. not used toward partisan political ends; and

4. the state employee's appointing official approves the use of
state resources for that purpose.

EC-COI-84-70. We further stated, "This last condition is critical.
It ensures that a disinterested, accountable public official is
making a judgment that there is an appropriate and not
'unwarranted' use of state resources."[8] Id.

We continue to believe that the above-described four
conditions must be satisfied in order to determine that the use
of public time or resources to support private organizations and
related activities is warranted for purposes of s. 23(b)(2). We
clarify that the public employee must obtain, in advance, his
appointing authority's written approval of the proposed use of
public time and resources and such written approval must specify
that the public employee's proposed use of public time and
resources satisfies each of the first three conditions.[9] Thus,
provided that you and your appointing authority satisfy all these
conditions, you may, to the extent necessary, use state time and
resources to perform those Section activities interconnected with
your duties as Division Chief.

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

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

[1] "State employee," a person performing services for or holding
an office, position, employment, or membership in a state agency,
whether by election, appointment, contract of hire or engagement,
whether serving with or without compensation, on a full, regular,
part-time, intermittent or consultant basis, . . . . G. L. c.
268A, s. 1(q).

[2] The legislative history concerning "unwarranted" as it appears
in the conflict law does not elucidate its meaning.

[3] Webster's Third New International Dictionary (1964).

[4] The American Heritage Dictionary, Second College Edition
(1985).

[5] The phrase "use or attempt to use his official position to
secure for himself or others unwarranted privileges or exemptions" has
been part of G. L. c. 268A since it was first enacted in its
general current form. See St. 1962, c. 779, s. 1; St. 1975, c.
508; St. 1982, c. 612, s. 14; St. 1986, c. 12, s. 2. For purposes
of this opinion, we assume that your use of state time and
resources for your Section Chief duties would necessarily involve
"privileges or exemptions of substantial value" because the amount
of state time and resources you plan to devote to Section Chair
activities would constitute something of "substantial value" under
the conflict law. See e.g., PEL 92-3; EC-COI-93-14.

[6] See also EC-COI-81-88 (state senator's allowing a non-profit
organization to use his state office space, telephones and other
facilities constituted using his official position to secure an
"unwarranted privilege" when such an organization would be
receiving something not generally available to private interest
groups); EC-COI-82-112 (state representative who leased a word
processor using personal funds for use in his state office may not
use the word processor for purely personal or campaign-related
purposes as long as it remains in his office because the use of
state office space, electricity, lighting, etc. which accompanied
its use for such purposes is an "unwarranted privilege arising out
of [his] official position"); PEL 92-3 (recreation department
director who directed city employees to devote approximately 100
hours of city time towards the administrative needs of a non-profit
unincorporated association that were unrelated to city business
extended an unwarranted privilege of substantial value to that
association).

[7] We noted that the exchange of ideas and knowledge, the
development of programs, and public education as to the needs and
goals of the corrections process were among the Commissioner's
statutory duties.

[8] We also noted, however, that nothing in our opinion precluded
the application of other statutes or regulations dealing with the use
of state facilities or supplies.

[9] It is the appointing authority's responsibility, in the first
instance, to determine whether he has legal authority to make such
an approval. We have indicated that in certain circumstances we
will defer to official personnel policy decisions in determining
what is a warranted use of an official position. See e.g.,
EC-COI-86-17
(as long as the public authority retains the
discretion to determine the compensation package for its employees,
the distribution of a free pass would not constitute the granting
of an unwarranted privilege to its employees). The head of a
public agency does not, however, have unlimited discretion.
"[P]ublic resources may only be allocated for public business, and
may not be utilized to address individual concerns of public
employees, even if those concerns are public-spirited in nature."
PEL 92-3. Compare EC-COI-84-128 (Secretary of Executive Office of
Public Safety's participation in raising funds for Governor's
prevention of drug and alcohol abuse campaign can reasonably be
seen as part of the Secretary's official duties and lending the
prestige of his office will not inure to benefit of a private
individual, but rather to a state-sponsored project which will
serve the public interest). See also EC-COI-88-17 (we will
customarily defer to the appointing official's discretion with
respect to determining acts done within the proper discharge of
official duties under s. 4(c), although an appointing official's
discretion under s. 4 is not unlimited; in this opinion, we
disagreed with the appointing official's determination of the
employee's official responsibilities); EC-COI-83-20; 83-137.


End of Decision