February 8, 1989

FACTS:

You are a member of the General Court. In both your current legislative capacity and in your professional capacity, you have been an actively involved member of a particular profession.

You have been invited to serve as the official speaker on behalf of the state at an out-of-state conference relating to your profession. You will be accompanied by your spouse who will also participate with you in the professional activities. Neither you nor your spouse will receive compensation for your speaking engagements.

Transportation company ABC will provide roundtrip transportation for the representatives from Massachusetts at a reduced price. Under an arrangement common with ABC and all other major carriers, ABC sets aside promotional tickets for individuals in the public and private sector who are engaging in activity geared towards your profession. ABC also has the discretion to offer a similar promotional ticket to the spouse or guest of the speaker. That decision depends primarily on the type of trip and the area's social expectations. For example, ABC will provide a promotional ticket for a spouse where social custom during the speaking tour would require an escort or spouse. A trip which requires attendance at only one event, however, might not warrant the issuance of a promotional pass to a spouse. ABC also expects that any spouse who attends an event under a promotional ticket will actively participate in the events and will engage in professional activities on behalf of the region. ABC offered a promotional ticket for your spouse because it determined that the events which you would be attending and hosting required you to be accompanied by your spouse as a matter of social custom in those areas.

QUESTION:

Does G.L. c. 268A permit you to accept promotional rate tickets for you and your spouse to attend the conference?

ANSWER:

Yes.

DISCUSSION:

As a member of the General Court, you are a state employee for the purposes of G.L.c. 268A. Issues under sections 3 and 23 of G.L. c. 268A[1] are raised whenever state officials accept travel discounts. As a general rule, travel discounts or free trips offered by vendors to state officials who will have official dealings involving those vendors will face close scrutiny under either s.3 or s.23. See, EC-COI-82-99; 83-17; 87-7; 88-22; Public Enforcement Letter to Municipal Treasurers 89-1 and 89-2. Special rules also apply to legislators. As applied to you, we conclude that G.L. c. 268A permits your acceptance of a discounted fare ticket for your promotional activities at the conference.

In 1983, the Commission issued Advisory No. 2, Guidelines for Legislators Accepting Expenses ad Fees for Speaking Engagements.  Under these guidelines, a legislator who participates in a legitimate speaking engagement[2] may receive from the sponsor expenses necessary to making the speech, including transportation to and from the site. On the other hand, if a legislator is not a scheduled speaker but merely a member of the audience, the travel expenses may not be pald by the sponsor. EC-COI-88-18.

Based on the information you have provided, we conclude that your speaking engagements are legitimate and that your acceptance of a travel discount from ABC is permissible under the Advisory guidelines. You appear to play a significant role in the representation of the state at the conference. Your presentation and speeches will significantly contribute to the events and are formally scheduled along with other speakers.

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The Advisory Guidelines also caution legislators to not accept expenses for a guest in connection with a speaking engagement. These guidelines were based on the language of s.s.3 and 23 as it appeared in 1983. While the principles of these guidelines remain sound, a 1986 amendment carved out a statutory exemption to s.23 permitting discounts and other privileges of substantial value which are "properly available to similarly situated individuals." St. 1986, c.12. In light of this amendment, we reaffirm that legislators may not accept travel discounts for their guests, with a proviso that the guest travel discount may be permitted if offered pursuant to an industry-wide practice. Because the ABC discount was made available to your spouse pursuant to an industry-wide practice available to spouses of officials in the public and private sector, we conclude that your spouse's receipt of a discount will not place you in violation of s.23(b)(2). Compare, EC-COI-88-22 (use of frequent flyer bonus points for personal use found not be available to similarly situated individuals); 87-37 (broad-based computer discounts found to be available to similarly situated individuals); 87-29 (receipt of tax preparation services found to be available to similarly situated individuals); 86-14 (receipt of car discount limited to particular employees found not to be available to similarly situated individuals).

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[1] In relevant part, s.3(b) prohibits a state employee from accepting anything of substantial value for himself given for or because of any official act or act to be performed. Section 23(b)(2) prohibits a state employee from using his official position to secure for himself or others unwarranted privileges of substantial value and which are not properly available to similarly situated individuals.

[2] A legitimate speaking engagement is one which is:

1. formally scheduled on the agenda of the convention or conference;

2. scheduled in advance of the legislator's arrival at the convention or conference; and

3. before an organization which would normally have outside speakers address them at such an event. Moreover,

4. the speaking engagement must not be perfunctory, but should significantly contribute to the event, taking into account such factors as the length of the speech or presentation, the expected size of the audience, and the extent to which the speaker is providing substantive or unique information or viewpoints.
 

End Of Decision