Public Education Letter
December 19, 2007
c/o Thomas Kiley
Cosgrove, Eisenberg and Kiley, P.C.
One International Place, Suite 1820
Boston, Massachusetts 02110-2600
Dear Mr. DiNatale:
As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, as the University of Massachusetts-Lowell Executive Director of Public Affairs and Director of the Center for Economic and Civic Opinion (CECO) violated s. 23(b)(3) by consulting for private clients on matters related to and/or overlapping with UMass-Lowell polls. Based on the staff's inquiry (discussed below), the Commission voted on September 21, 2007, to find that there is reasonable cause to believe that you violated G.L. c. 268A, s. 23(b)(3).
For the reasons discussed below, however, the Commission has concluded that further proceedings in your case are not necessary. Instead, the Commission has determined that the public interest would be better served by bringing to your attention, and to the public's attention, the facts revealed by the preliminary inquiry, and by explaining the application of the law to the facts, with the expectation that this advice will ensure your understanding of and future compliance with these provisions of the conflict-of-interest law.
By agreeing to this public letter as a final resolution of this matter, you do not admit to the facts and law discussed below. The Commission and you have agreed that there will be no formal action against you in this matter and that you have chosen not to exercise your right to a hearing before the Commission.
You were hired by the University of Massachusetts Lowell ("UMass Lowell") in 2003 as director of the Center for Economic and Civic Opinion after years of service at the University of Massachusetts Boston. Your duties include conducting various polls for the University, some of which involve political issues and campaigns. You conducted such polls in your prior position as well. The purpose of such polls is to enhance the image of the University, and your political acumen and professional reputation are important to that goal.
In your private capacity, you have also conducted polls as a paid political consultant. In or about early 2005, Christy Mihos hired you as a private political pollster. At the time, Mihos was contemplating running for governor. You conducted a political poll for Mihos from September 25-29, 2005. It queried Republican voters about a range of political issues and included numerous questions about Mihos as a Republican candidate for governor.
You also conducted a University poll of 400 registered voters (Republicans, Independents, and Democrats) around the same time as the private poll for Mihos. The University poll, conducted between September 19 th and September 27th, 2005, included three questions concerning Christy Mihos in possible match-ups as a Republican candidate for governor against three different Democratic opponents: Thomas Reilly, Deval Patrick, and William Galvin. The poll also included a fourth question about Mihos as an Independent candidate versus Republican Kerry Healy and Democrat Tom Reilly.
You made no disclosure to your appointing authority regarding the particular private polling work you performed for Mihos, although your appointing authority was generally aware that you engaged in private polling work.
As director of the University Center for Economic and Civic Opinion, you are a state employee as that term is defined in G.L. c. 268A, s. 1(q). As such, you were subject to the conflict of interest law G.L. c. 268A generally and, in particular for the purposes of this discussion, to s. 23(b)(3) of that statute.
Section 23(b)(3) prohibits a municipal employee from knowingly, or with reason to know, acting in a manner which would cause a reasonable person, knowing all of the facts, to conclude that anyone can improperly influence or unduly enjoy the employee's favor in the performance of his official duties or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. This section's purpose is to deal with appearances of impropriety, and in particular, appearances that public employees may be biased in favor or against certain people in the performance of their official duties. This subsection further provides, in effect, that the appearance of impropriety can be obviated if the state employee discloses in writing to his appointing authority all of the relevant circumstances which would otherwise create the appearance of conflict. The appointing authority must maintain the written disclosure as a public record.
The Commission generally applies s. 23(b)(3) where an appearance arises that the integrity of a public official's action might be undermined by a private relationship or interest. Flanagan, 1996 SEC 757, 763; Commission Advisory No. 05-01, The Standards of Conduct (Section 23).
By conducting public polling in September 2005 as a University employee that included questions concerning Mihos while having a private relationship with Mihos, you acted in a manner that would cause a reasonable person to conclude that you could be improperly influenced by Mihos or that Mihos could unduly enjoy your favor in the performance of your official duties, in short, that you might be biased in his favor. This appearance problem was exacerbated by the fact that your private relationship included conducting a private political poll for Mihos that overlapped in time and subject matter with your University poll. You did not make a timely disclosure of the relevant circumstances to your state appointing authority. Therefore, the Commission voted to find that there is reasonable cause to believe that you violated s. 23(b)(3).
The point the Commission wants to emphasize is that it is essential that public employees' objectivity, both in fact and in appearance, be maintained so that public confidence in their official actions can be assured. Accordingly, no public official should be involved in any situation where he/she has a potentially compromising relationship with a party with an interest in his/her public work without first fully and in writing disclosing the relevant facts concerning that particular matter to his appointing authority. 
The Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $2,000 for each violation. The Commission, however, chose to resolve this case with an education letter rather than imposing a fine because it believes the public interest would best be served by doing so. Public employees need to disclose in writing any particular private activity that may create an appearance that the objectivity of their public work can be compromised; general awareness on the part of an appointing authority of somewhat similar private activity by them is not enough. The purpose of this public education letter is to emphasize that point.
Based upon its review of this matter, the Commission has determined that your receipt of this public education letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.
This matter is now closed.
Very truly yours,
David A. Wilson
Acting Executive Director
 In the educational spirit of a public letter, you should also be aware that serving as a private political consultant while conducting public polls could raise issues under s. 23(b)(2). UMass Lowell's audit has demonstrated that no University resources were used in your private polling, but there are other potential implications. Section 23(b)(2) prohibits any state employee from knowingly, or with reason to know, using or attempting to use his official position to secure for anyone an unwarranted privilege of substantial value which is not properly available to similarly situated individuals. Section 23(b)(2) would be violated if one were to use public polling to gain some kind of advantage for a private client.