April 27, 1987

FACTS:

You are a municipal official.  You were invited by a prominent citizen to attend an out-of-state event involving this citizen.  The citizen offered to pay for the flight, hotel room and tickets which together will total approximately $1,000.  You were asked to be his guest in your capacity as a municipal official.  You have stated that you were invited as a courtesy, because you are a municipal official.  The citizen did not require or expect that you would perform any role as a municipal official in connection with the event.
 
In 1984, the citizen purchased tickets for and attended your inaugural ball. He has never contributed to your campaigns. You have attended functions which are held to raise money for charitable purposes in the municipality in which the citizen had been involved. Other than what has been previously stated, you have had no

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personal or official dealings with citizen.  He and his associates do not typically have official dealings with the municipality. You have learned that an application for a building permit was taken out recently for minor renovations to a three unit commercial building which is owned by a trust of which the citizen is a beneficiary.  The permit is for minor repairs and would not call for a variance from the zoning code. If the repairs comply with the provisions of the state building and health codes, issuance of the permit is required.

QUESTION:

Is your receipt from the citizen of payment for the flight, hotel room and event ticket permissible under s.3 and s.23 of the conflict law?

ANSWER:

No. Payment of such expenses is not permissible under s.23(b)(2) unless payment or reimbursement to you is authorized by the city council or board of selectmen.

DISCUSSION:

Section 23(b)(2) of the conflict law prohibits a public official from using or attempting to use his 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.

A gift in the form of payment for or reimbursement for trip expenses and which is available only to one public official raises a conflict question under s.23(b)(2) because the gift is given precisely because the recipient is a public official and for no other reason. See, EC-COI-86-14.  In this case, the only reason you have been offered the trip is because of your position as a municipal official and no other reason.  There is no statutory authorization or other justification for providing you a privilege which is not available to private citizens and other public officials.[1]  In the case of a selective gift to a public employee, the employee is able to realize a benefit from which the public is excluded.  Receipt of such benefit negates the trust that the public is entitled to place in public employees: that public, not private, interests are furthered when the 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-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." Therefore, the gift is unwarranted.

Further, the gift is a privilege "not properly available to similarly situated individuals" such as members of private groups, or other public employees. Given that the gift is of substantial value,[2] unwarranted, and not properly available to similarly situated individuals, your acceptance directly from the citizen would result in a violation of s.23(b)(2).[3]

Reimbursement for reasonable expenses paid for the trip would be appropriate, on the other hand, if the city council or board of selectmen expressly voted to authorize such expenditure of public funds. Your acceptance of the funds would not be unwarranted because it would represent the will of the people as expressed by the city council or board of selectmen, and would be subject to a political process which assures accountability.[4]

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[1] Were you performing a legitimate ceremonial function at the event, it would not be securing an unwarranted privilege to provide you with free admission and reimbursement of related expenses. Cf.{Commission Advisory No.2}.

[2] An item of substantial value has been determined by the Commission to be anything valued at $50 or more.

[3] Section 3 of the conflict law, which prohibits anyone from giving, and any public employee from receiving, anything of substantial value "for or because of any official act performed or to be performed by such employee," would not be violated because the payment for the trip will not be given for any "official act performed or to be performed." see, G.L. c. 268A, s.1(h). There is nothing pending before you as a municipal official, nor is it likely that in the future the citizen would have anything pending before you. The fact that there is a routine application for a building permit before the building department, a line agency of the municipality does not establish a violation where the offer of payment for the trip has nothing to do with the application for a building permit, there is no nexus between the offer and the application, and there are no foreseeable future acts which you could perform regarding the giver, in EC-COI-86-14. In these circumstances there is no opportunity that future decisions could be clouded, either consciously or subconsciously, by receipt of the gift. Id.

[4] It is unclear whether the citizen may properly donate to the municipality the funds necessary to pay for or reimburse you for the reasonable costs of your trip and the municipality may then properly authorize the expenditure of those funds. You should consult with your municipal counsel if you have any questions as to whether there is an appropriate mechanism for the municipality to accept such a donation. (See,e.g., G.L.c. 44, s.53A).

End of Decision