Public Enforcement Letter 89-4

Mr. Byron Battle

Date: October 6, 1988

Dear Mr. Battle:

As you know, the State Ethics Commission has conducted a
preliminary inquiry regarding an allegation that you used your
state title of Undersecretary of Economic Affairs, your official
letterhead, and other state resources to solicit Massachusetts
business and trade leaders to join a privately organized tour to
the Soviet Union, knowing that if you could persuade enough people
to go, your own trip plus an additional trip for a guest of your
choice, valued at a total of approximately $8,000.00, would be
free. The results of our investigation, discussed below, indicate
that you appear to have violated the conflict of interest law in
this case. Nevertheless, in view of certain mitigating factors,
also discussed below, the Commission has determined that
adjudicatory proceedings are not warranted. Rather, the Commission
has concluded that the public interest would be better served by
disclosing the facts revealed by our investigation and explaining
the applicable provisions of the law, in the expectation that this
will ensure both your and other government employees' future
understanding of and compliance with the conflict law. By agreeing
to this public letter as a final resolution of this matter, you do
not necessarily admit to the facts and law as discussed below. The
Commission and you have agreed that there will be no formal action
against you and that you have chosen not to exercise your right to
a hearing before the Commission.


In January, 1984, you became Undersecretary for International
Trade in the agency then known as the Massachusetts Department of
Commerce. In that position, you were responsible for setting up a
new Office of International Trade and Investment to promote
Massachusetts exports to foreign countries and to lead trade
missions of Massachusetts business leaders to Europe and Asia.

In August of 1987, you were asked to accept a transfer to the
position of Commissioner of Commerce. Soon after, due to
legislative action, the Department of Commerce merged with the
Executive Office of Economic Affairs (EOEA). At that point your
title changed to Undersecretary of Economic Affairs, but your
position was not otherwise affected. You have held this position
continuously to date.

As the Undersecretary of Economic Affairs, you are no
longer responsible for foreign trade missions on a daily basis although
you do from time to time conduct them. Your current position is
promotional, with no regulatory responsibility, focused on domestic
industrial development. Your primary function is to target specific
sectors in the Massachusetts industrial community and provide them
with assistance in developing and maintaining domestic markets.
Your office concentrates on industries that do not have substantial
export potential and, accordingly, foreign trade missions are no
longer part of your work plan.

Part of your responsibility is to set vararious selection
criteria for deciding which industries your office will promote,
with the most significant factor being the number of in-state jobs
involved. Based on your input, the EOEA Secretary nakes the final
selection, and you are presently working on behalf of the
Massachusetts woodworking industry and manufacturers of plastics.
In addition to its promotional responsibilities, your office also
serves as a

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"traffic cop" for Massachusetts industries, directing them to
useful state agencies, sources of financial assistance, and other
forms of development aid, but providing no direct aid.

Early in October, 1987, you received a promotional mailing from
People To People, addressed to your predecessor as Commissioner of
Commerce, soliciting delegation leaders for the People To People
international tours. According to its literature, People To People
was founded in 1956 by Dwight D. Eisenhower to promote
international understanding through direct contact among citizens
of different nations. The Goodwill People To People Travel Program
is an officially-licensed program of People To People International
providing escorted tour services. Since 1957, the Goodwill People
To People Travel Program has been sending professional occupational
delegations to all areas of the world to meet their counter-parts
and compare methods and techniques relative to their common
interests. The opportunity for exchange on a personal level is
intended to contribute to world peace The actual travel
arrangements are handled by a private travel agent.

Upon receiving the mailing, you contacted People To People for
further information, although you considered it unlikely that you
could participate, as you were aware that foreign travel was not
in your current work plan, and the expense of it would not be
included in your budget. You were then told by a representative of
People To People that the leader of a People To People delegation
did not pay his own way on the tour. You were told that if 20
people subscribed to your tour, you would travel free of charge.
If from 30 to 37 people subscribed to your group, you would also
be permitted to bring one additional person free of charge.

In the course of the conversation, you were encouraged to
consider leading a tour of members of the Masachusetts business
community to eastern Europe and the Soviet Union, due to your past
experience with travel in the area and your current connection to
the Massachusetts business community.

Following the telephone conversation with the representative of
People To People, you decided to contact a number of business
organizations in Massachusetts to determine if there would be any
interest in the proposed trip. You subsequently called the heads
of six business associations from your office during business
hours. As a result of these exploratory telephone calls, the head
of one such association volunteered to provide you with a mailing
list of members to whom you might direct the invitations.

Having received what you considered to be a strongly favorable
response to the proposed trip, on November 3, 1987 you wrote to
People To People enclosing a delegation agreement, the first step
in the clearance process for delegation leaders. You had at that
time already obtained the mailing list, and you enclosed it in your
letter. The mailing list contained approximately 300 names.

You stated to us that at the time you agreed to act as a
delegation leader, you intended to take the trip on your vacation
time, as a private venture of your own. You did not notify the EOEA
Secretary of your intent to lead the tour.

You were subsequently approved as a delegation leader by People
To People, and your responsibilities then became to submit a
statement of purpose for the trip, a proposed itinerary, a draft
invitation letter, a mailing list of 300 to 600 names, and
stationery. You also received a substantial package of information
and advice for delegation leaders for your review. You stated that
you drafted two letters, made the six telephone calls referred to
above, drafted a brief mission statement, and received and reviewed
the package of information from People To People. Your secretary
typed two letters, handled 12 calls seeking additional information,
mailed invitations and stationery to the travel agent, and
established a data base to track response cards as they came in.
You also supplied People To People with a minimum of 300 sheets of
state stationery and envelopes to accompany the mailing list. All
the work done by you and your secretary in connection with
organizing the trip took place on state time, utilizing state

On or about January 2,1988, the People To People travel agent
mailed the invitations on the state letterhead to the 300 people
on the mailing list you provided. The letters were signed by you
using your EOEA title. You wrote and sent an additional six letters
to the heads of the business associations with whom you had
previously spoken. These letters, also on state letterhead,
described the trip as an "official business mission" and were also
signed by you using your EOEA title. You also proposed to People
to People that your group be named, "State Delegation - Trade and

At no time did you inform the EOEA Secretary of your involvement
with this tour. On or about January 25, 1988, the EOEA Secretary
and the EOEA General Counsel learned from other sources ofyour
involvement with People To People. At that time, the Secretary
ordered you to withdraw from your role as delegation leader, which
you did. You also on January 25,1988 wrote a clarifying letter to
the six business association leaders you had originally contacted,
explaining that the mission as you had described it was not, in
fact, an official mission of the state and reported the matter to
this Commission on January 28,1988. The tour did not take place.

II. The Conflict Law

As Undersecretary for Economic Affairs, you are a state employee
for the purposes of the conflict of interest law, G.L. c. 268A In
relevant part, s.23(b) (2) prohibits a state employee from using
his official position to secure for himself unwananted privileges
of substantial value.

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For the purposes of G.L. c. 268A, "substantial value" has been
determined to be anything valued at more than $50.00. See,
Commonwealth v. Famigletti, 4 Mass App. 584,587(1979); Commission
Advisory No. 8, Free Passes.

The facts set forth in this letter, if proven, would appear to
establish a violation of s.23(b) (2). Thus, you used the resources
of your office, i.e., your time, secretarial support, supplies,
etc., as well as the appearance of state sponsorship, in an attempt
to promote a free trip for yourself and possibly for another
person, for a total value of close to $8,000.00. The Commission has
already ruled that use of state resources in furtherance of a
private interest of your own is a violation of the statute. See,
Public Enforcement letter 78-1. Accordingly your use of state
resources to solicit participants for a private trip appears to
violate s.23(b) (2). Furthermore, you knew or should have known
that your use of state letterhead and your otherwise making it
appear that the trip was state sponsored made it more likely that
the necessary number of people would subscribe, so that you and
your guest could go free. The Commission has also ruled that an
unwarranted appearance of state sponsorship or endorsement violates
s.23(b) (2). See, In the Matter of Elizabeth Buckley, 1986 Ethics
Commission (page 137). See also, EC-COI-84-43; EC-COI-82-112; EC-

Nevertheless, due to certain mitigating factors, the Commission
has determined that a public adjudicatory proceeding is not
necessary to resolve this case. In choosing to resolve this case
by means of a Public Enforcement Letter only, the Commission was
mindful of the following mitigating factors:

1. you did not, in fact, obtain any financial benefit from your
involvement in the People To People tour, other than the use of the
state resources referred to above.

2. The value of the state resources you used in connection with
the People To People tour was relatively small, and you have agreed
to reimburse your agency for the resources used.

3. At the direction of the Secretary and General Counsel of your
agency, you withdrew from the tour approximately three weeks after
the solicitation went out, before any commitments to attend were
made by any of the persons you solicited, and you wrote an
explanatory letter to the six individuals you contacted directly
in connection with the tour.

4. None of the persons you solicited were regulatees of your
agency, and, accordingly, there no actual or implied coercion
in your solicitation.

5. Given the nature of the People to People organization, the
tour which you proposed to lead had a quasi-public purpose, and
thus you appeared to have some genuine confusion as to the
propriety of acting in your official capacity with respect to the

6. You self-reported your actions to this Commission and have
cooperated fully throughout our investigation.

III. Disposition

Based on its review of this matter, the Commission has
determined that the sending of this letter should be sufficient to
ensure your understanding of and your future compliance with the
conflict law. This matter is now closed.