FACTS:
You are a member of the Legislature and, in the course of
your duties and committee work, you are frequently invited to
business meetings which include a meal. These meals are paid for
by individuals with an interest in legislative business.
QUESTION:
Does the $50.00 threshold used by the Ethics Commission in
its assessment of whether an item is "of substantial value" for
purposes of G.L. c. 268A remain a viable measure of substantial
value [1]?
ANSWER:
Yes.
DISCUSSION:
The term "substantial value" first appeared as part of the
comprehensive 1962 conflict of interest legislation that created
c. 268A. In response to the need for a comprehensive law covering
all employees and addressing the major kinds of conduct which
might create either a conflict of interest or the appearance of
conflict, the General Court established a special study
commission in 1961 to draft and recommend appropriate
legislation. The special commission modeled much of its work on
drafts of similar legislative initiatives pending in Congress.
The special commission was guided by two objectives: that the
proposed legislation address corruption in public office,
inequality of treatment of citizens, and the use of public office
for private gain; and that the proposed legislation set realistic
and precise standards so that the Commonwealth, counties, and
municipalities may continue to attract capable individuals who
are willing to serve in government. Final Report of the Special
Commission on Code of Ethics, H. 3650 at 18 (1962).
The relevant section in the 1962 legislation is s. 3. G.L.
c. 268A, s. 3(b) prohibits a public employee from directly or
indirectly soliciting, accepting, or agreeing to accept anything
of substantial value for himself for or because of any official
act or act within his official responsibility performed or to be
performed by him. Section 3(a) places a corresponding prohibition
on anyone who offers or gives something of substantial value to a
public employee for or because of any official act or act within
the employee's official responsibility [2].
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The General Court did not establish a statutory dollar
amount for substantial value. This approach followed the
recommendation of the special commission that the substantial
value standard should "be dealt with by judicial interpretation
in relation to the facts of a particular case, an approach more
desirable than the imposition of a fixed valuation formula."
Final Report, 1962 House Doc. No. 3650, p. 11.
Subsequently, in Commonwealth v. Famigletti, 4 Mass. App.
584 (1976), the Massachusetts Appeals Court opined that it would
be "difficult to conceive of circumstances in which $50 . . .
could not be found "substantial" in the context of s. 3(b)." The
Commission relied upon the Famigletti decision when it
established a $50 threshold as a guideline for public employees
who were offered gifts, meals, or other benefits during the
course of their official employment. See In re Michael, 1981 SEC
59, 69; Commission Advisory No. 8 (Free Passes) (1985). As a
matter of prosecutorial discretion, the Commission has declined
to sanction gifts valued at less than $50, considering such gifts
to be of nominal value [3].
The term "substantial value" has not been limited to cash
gifts and has been interpreted to include, among other things,
tickets ( Advisory No. 8), meals, loans ( In re Antonelli, 1986 SEC
101), transportation ( EC-COI-82-99), bequests (Public Enforcement
Letter 92-1), and frequent flyer points ( EC-COI-88-22 ), as well
as intangible benefits such as a desirable faculty appointment
( EC-COI-81-136 ), access to hospital administrators (In re Burke,
1985 SEC 248), and use of the state seal to benefit private
interests ( EC-COI-92-5).
This opinion request raises the question whether the
Commission should continue to use a $50 threshold in measuring
"substantial value." We re-affirm our decision that substantial
value is $50 or more.
The $50 standard is part of the long-standing precedent of
the Commission and has been relied upon as a guide by thousands
of public employees. We have received no public comment urging us
to increase the threshold. We are reluctant to change long-
standing precedent when we have not been presented with a
compelling reason to do so, particularly in light of the
important public interest which underlies the substantial value
requirement and the provisions of G.L. c. 268A, s. 3.
In reaching our decision, we are guided by the original
preamble to G.L. c. 268A, which states,
A continuing problem of a free government is the maintenance
among its public servants of moral and ethical standards
which are worthy and warrant the confidence of the people.
The people are entitled to expect from their public servants
a set of standards of the highest order. A public official
of a free government is entrusted with the welfare,
prosperity, security and safety of the people he serves. In
return for this trust, the people are entitled to know that
no substantial conflict between private interests and
official duties exists in those who serve them.
One of the fundamental principles upon which the conflict
law, in general, and s. 3, in particular, are based, is public
confidence that the judgment of public employees and their
decisions are based on the public's interest, and are not made
because an official has been influenced, or appears to be
influenced, by gratuities. When a public official accepts
gratuities from private individuals and organizations with an
interest in the official's actions, the public's confidence in
the credibility and impartiality of the government process is
undermined. See EC-COI-86-14; In re Michael, 1981 SEC 59, 68;
Commission Advisory No. 8 (Free Passes). Questions arise in the
public's mind concerning preferential treatment.
The acceptance of gratuities "negates the trust that the
public is entitled to place in public employees: that the 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," thus creating an environment where "those who
serve the people are treated better than the people themselves."
EC-COI-86-14; see also, EC-COI-83-4.
In conclusion, the term "substantial value" is not defined
in G.L. c. 268A, and the Commission is charged with interpreting
the term in light of the overall remedial purpose and intent of
the conflict of interest law. See e.g., United States v. Evans,
572 F.2d 455, 480 (5th Cir. 1978); Everett Town Taxi, Inc. v.
Board of Aldermen of Everett, 366 Mass. 534, 536 (1974). We
believe that the $50 threshold serves the public interest in
maintaining the integrity of the
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government decision-making process, and provides a realistic and
workable measure which public officials may use to guide their
conduct.
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[1] Because the definition of "substantial value" is an
issue of great interest to public employees at all levels of
government and to the public, we publicly invited legal arguments
from interested parties, including the Office of Governor's Legal
Counsel, Counsels for the House of Representatives and the
Senate, Common Cause and the Massachusetts Municipal Association.
We did not receive any response.
[2] The term "substantial value" was more recently inserted
into 1986 amendments for two of the G.L. c. 268A, s. 23 standards
of conduct. Section 23(b)(1) provides that a public employee may
not accept employment involving compensation of substantial
value, the responsibilities of which are inherently incompatible
with the responsibilities of his public office. Section 23(b)(2)
provides that a public employee may not use or attempt to use his
official position to secure for himself or others unwarranted
privileges or exemptions which are of substantial value.
[3] In certain instances, the Commission has aggregated
repeated gratuities whose cumulative value is greater than $50 to
find a violation under s. 3 and has indicated that it may
aggregate donations from organizations or entities which share a
common interest in legislative business. See EC-COI-93-8; 92-2;
In re Flaherty, 1990 SEC 498; In re United States Trust Company,
1988 SEC 356. For example, if an organization provides you with
free meals or other gratuities on a repeated basis over the
course of a year, the Commission will aggregate the total value
of all of the meals for purposes of determining substantial
value. See In re United States Trust Company, 1988 SEC 356, 358;
Commission Advisory No. 8. This example is not intended to
represent the only circumstances in which the Commission will
aggregate. The Commission will consider other circumstances on a
case by case basis.
End Of Decision