June 16, 1992

FACTS:



Page 420

You are the superintendent of a public school system. You are
also a member of the ABC Users' Committee (Committee), a private
organization apparently set up by a computer company. You have been
invited to attend a meeting of the Committee. The computer company
will pay for your travel, hotel and meals costs. You will receive
no compensation or honorarium for attending the meeting. You state
that you are the only school superintendent on the Committee this
year and you feel that you can play an important role in private
funding support for schools. Your appointing authority, the school
committee, is pleased with your invitation and has instructed you
to use work rather than vacation time for the conference. It was
agreed that you would not be representing your school system at the
meeting but rather that you will be representing a user group and
you will be identified only as an "educator" or an "educational
manager". Your school system has previously received

Page 420

several pieces of equipment and software from the computer company.
You state that as a superintendent, you have purchased their
products for all of the school systems with which you have been
associated.


QUESTION:



May you accept payment by the computer company of your travel,
hotel and meals costs associated with your attendance at the
meeting of the Committee?


ANSWER:


No, unless the town adopts a by-law or charter provision
authorizing municipal employees to accept vendor payments of travel
expenses.


DISCUSSION:


As Superintendent, you are a municipal employee for purposes
of G.L. c. 268A, the conflict of interest law, and, as such, you
are subject to the requirements of 3 of that law. Section 3(b)
prohibits a municipal employee, otherwise than as provided by law
for the discharge of his official duties, from soliciting or
accepting anything of substantial value for or because of any
official act performed or to be performed. Anything valued at $50
or more is "of substantial value." Commonwealth v. Famigletti, 4
Mass. App. Ct. 584, 587 (1976); Commission Advisory No. 8. Section
3 may be violated if a public official receives something of
substantial value, whether the gift is given as a token of
gratitude for a well-done job or is given out of a desire to
maintain the public employee's goodwill. Even in the absence of any
specifically identifiable matter that was, is or soon will be
pending before the official, 3 may apply. Public Enforcement Letter
92-1
.

The Commission has consistently found that 3(b) is violated
when a public employee receives direct payment or reimbursement of
travel expenses from a vendor of the agency by which the public
employee is employed. In EC-COI-88-5, the Commission rejected the
contention that the value of the trip expenses accrues to the
municipality rather than to the traveler. See In re Pitaro, 1986
SEC 271 (where Commission had that travel privilege of substantial
value accrued to mayor himself). We have found that whenever a
specific public employee is able to take a trip at the expense of
a private entity, there is a benefit of substantial value to the
individual traveler, thereby implicating s.3.

Sound public policy supports the Commission's application of
3 to the receipt by public employees of vendor-paid travel
expenses. As the Commission stated in EC-COI-82-99 (where members
of a state board of registration, traveling to view equipment
proposed by a manufacturer, were prohibited from receiving travel
expenses from the manufacturer),

a system wherein the manufacturers of products pay for trips
by state employees is clearly open to abuse by the state
employees as well as the manufacturers. State employees could
exploit this system in order to procure unwarranted
privileges. And, the public impression that state employees
were improperly influenced in their decisions could arise.
Manufacturers, on the other hand, may view the quality of the
accommodations and accouterments on these trips as more
important than the quality of their products.

The Commission has previously acknowledged that there may
sometimes exist legitimate public purposes to justify a public
employee's travel, and that the public interest may be served by
allowing private entities to pay for a public employee's travel
expenses. Nevertheless, the Commission believes that the
restrictions placed on public employees by 3 ensure that the public
employee's integrity is not compromised in the name of conserving
public funds. However, 3 concerns may be overcome if the
municipality adopts a by-law or charter provision allowing vendors
to pay for travel if a municipal governing body pre-approves all
vendor-funded travel expenses, thereby ensuring that the expenses
are legitimate and minimizing the risk that the employee is being
"wined and dined". See Public Enforcement Letter 90-1; 90-2; see
also EC-COI-92-10; 88-5.
Travel expenses paid by a vendor under
such a by-law or charter provision would be "as provided by law"
under G.L. c. 268A, s.3 and would not give rise to a violation.

In your case, where you have previously entered into
contractual relations with the donor, and where, in your position
as Superintendent, you have the ability to act in the future to
benefit the computer company, 3 is implicated. If you accept
something of substantial value from the computer company, any
future official action which you may take as Superintendent with
respect to the computer company could reasonably be called into
question. Even if you perform objectively as Superintendent, there
would be an appearance that you could be influenced by your prior
receipt of the travel

Page 421

expenses. By prohibiting your receipt of a gift outright, 3
prevents any potential conflict of interest. See EC-COI-87-38
(citing In re Pitaro, 1986 SEC 271). Absent a by-law or charter
provision regulating-vendor paid travel, you therefore may not
accept anything of substantial value from the computer company,
including your travel, hotel and meals costs valued at $50 or
more.[1]

We have reviewed your statements as to why you believe your
receipt of travel costs should be permissible. Although we believe
that your reasons for attending the committee meeting are
meritorious and that your commitment to education is commendable,
we must continue to assure the integrity of public service through
our enforcement of the conflict of interest law. As explained
above, the potential for abuse in connection with vendor-paid
travel expenses outweighs those legitimate reasons that may make
such an arrangement desirable.[2]


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


[1] Even though the payment of your conference expenses by the
computer company appears to stem from your position on the
Committee, you may not accept a direct contribution from them
because of the potential nexus between the motivation for the gift
and your public duties. We note, however, that if the computer
company were to make a gift to your Town consisting of an airline
ticket, such a gift would not result in a violation of 3 since it
would be a gift to a government agency rather than to an
individual. See EC-COI-84-114. If the Town then utilizes the ticket
to send you to the Committee meeting, an issue under 3 will not be
raised.

[2] Although your opinion request does not address the issue
of a future computer purchase by your Town, we note that because of
your membership on an advisory committee, if the computer company
submits a bid proposal for a computer contract, an appearance of a
conflict of interest may be created. In order to avoid such an
appearance, you should at that time make a written disclosure to
your appointing authority of your position on the Committee as well
as the fact that the computer company is a bidder. See G.L. c.
268A, 23(b)(2).

End Of Decision