September 14, 1988

FACTS:

You are the manager of ABC Mental Health Center. ABC Mental Health Center is a nonprofit mental health clinic whose staff is composed of private employees and "01" or "02" staff employed by either of two state agencies. ABC Mental Health Center has a partnership agreement wtth a state agency.

ABC Mental Health Center has a cashbased productivity incentive system for its own employees and would like to create an incentive system for state employees assigned to work there. ABC Mental Health Center proposes to credit each state employee with $23.00 for each hour in excess of 824 hours spent in direct service. These credits could be used for four things: 1) payment of conference fees and travel expenses, 2) books, 3) journals, and 4) office furnishings. The ownership of the books, journals, and office furnishings would be retained by ABC Mental Health Center. The goal of this program is to increase the direct service hours attributable to the clinic through increased productivity during the normal workday by ABC's state employees.

QUESTION:

Does G.L. c. 268A, s.3 permit a state agency partnership clinic to offer or a state employee to accept these productivity incentive credits for increased direct service work during the normal workday and to apply them toward the cost of conference fees and conference travel expenses for the individual state employee or toward the cost of books, journals, and office furnishings to be used for official state business?

ANSWER:

ABC Mental Health Center may offer and a state employee may accept these credits for use in acquiring the use of books, journals, and office furnishings for state work but may not accept these credits for application toward the expenses of conference fees and conference travel expenses for the individual state employee.

DISCUSSION:

State agency employees assigned to ABC Mental Health Center are state employees within the meaning of

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G.L. c. 268A, 1(q). Section 3(a) of G.L. c.268A prohibits anyone from giving anything of substantial value to a present or former state, county or municipal employee for or because of any official act performed or to be performed by such an employee. Section 3(b) reverses the prohibition and indicates a public official may not accept an item of substantial value for or because of an official act performed or to be performed.

The purpose of s.3 is to prevent the giving or receiving of items of value to public employees in addition to their salaries for performing their official duties. EC-COI-84-101 at 2. All that is required to bring s.3 into play is a relationship between the motivation for the gift and the employee's public duties. Commission precedent indicates that this section will not permit multiple remuneration for what state employees are already obliged to do -- a good job. In the Matter of George A Michael, 1981 SEC 59,68. In that the productivity incentive credit awards you propose to give are clearly intended to provide state employees with multiple remuneration for doing a good job and in that it is clear that these awards involve items of substantial value, compare, Commonwealth v. Familgetti, 4 Mass. App, 584 (1976) ($50 is something of substantial value under s.3(b)), it would appear to be a violation of 3 for you to offer and for a state employee to accept such an award. See, EC-COI-84-101; EC-COI-81-120 at fn. 3.

Not all of the proposed credit uses implicate this section of the statute, however. In that the Commission has indicated that gratuities given to state employees for official use only do not fall within this prohibition, see, EC-COI-84-114, the use of these credits by state employees to obtain the use of books, journals, and office furnishings (title to all of these to be retained by ABC Mental Health Center) to further their state business would not be prohibited. Use of these credits toward the payment of conference fees and travel expenses would be prohibited, however. The Commission has indicated, in the context of travel, that the privilege of substantial value does not accrue to the state, but rather to the individual traveller. See, EC-COI-88-5 at 2; In the Matter of Carl D. Pitaro, 1986 SEC 271.[1]

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[1] Although gifts "provided by law for the proper discharge of official duty are exempt from s.3, we find no express statutory language or duly promulgated regulation which authorizes individual state employees to accept conference and travel expenses from a state agency partnership clinic where they have been assigned. Were there any such statute or regulation, s.3 would not be implicated here.

End Of Decision