Public Enforcement Letter 96-2

Bristol County Sheriff David R. Nelson
c/o Thomas R. Kiley, Esq.
Cosgrove, Eisenberg & Kiley, P.C.
One International Place, Suite 1820
Boston, MA 02110-2600

December 21, 1995

Dear Sheriff Nelson:

As you know, the State Ethics Commission ("Commission") has
conducted a preliminary inquiry concerning whether you, as
Bristol County Sheriff, violated the state conflict of interest
law, G.L. c. 268A, when several Bristol County Sheriff Department
("Sheriff Department") employees raised funds for your political
campaign committee by selling tickets to political fundraisers,
sponsored by your campaign committee, to fellow Sheriff
Department employees. Based on the staff's inquiry (discussed
below), the Commission voted, on July 11, 1995, that there is
reasonable cause to believe that you violated the state conflict
of interest law, G.L. c. 268A, s.23. The Commission, however,
does not believe that further proceedings are warranted due to
the fact that this is a case of first impression, and has,
rather, determined that the public interest would be better
served by bringing to your attention, and to the attention of all
elected officials throughout the Commonwealth, the facts revealed
by our inquiry and by setting forth the Commission's position
concerning the application of the law to such facts, with the
expectation that this advice will ensure your understanding of
and future compliance with 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.


I. Facts

1. You are the Sheriff of Bristol County, a paid elected
position. You first became Bristol County Sheriff in 1983 and
have since served continuously as Sheriff.

2. In 1991 and 1992, your political campaign committee
held fundraising events. Tickets were sold to these events at a
price of $50 each.

3. In 1991 and 1992, several Sheriff Department correction
officers of the rank of lieutenant and above solicited
subordinate correction officers to purchase tickets to your
campaign committee's political fundraisers. Some of these
solicitations took place during Sheriff Department work hours and
in Sheriff Department workplaces, including the Ashe Street Jail
and the Dartmouth House of Correction. An undetermined number of
tickets to your fundraisers were sold to rank and file correction
officers by their superiors in this manner.

4. Some correction officers who purchased tickets to your
campaign committee's fundraisers apparently felt pressured to do
so. Thus, there is evidence that some senior ranking officers
selling the fundraiser tickets encouraged their subordinates'
sense of obligation to buy the tickets and fostered their belief
that you took notice of who purchased tickets and who did not.
The Commission is, however, aware of no evidence of any adverse
consequences in fact suffered by anyone for refusing to buy
tickets to your campaign committee's fundraisers.

5. In 1991 and 1992, persons selling tickets to your
campaign committee's fundraisers were apparently advised about
the applicable campaign finance laws. Some of these ticket
sellers were senior ranking officers under your direct command as
Sheriff. Although you apparently did not personally participate
in the sale of fundraiser tickets, due to the systematic and
organized manner and the location of certain of the fundraiser
ticket sales solicitations, you had reason to know that
solicitations of Sheriff Department subordinates by their
superiors were taking place in Sheriff Department workplaces.[1]

II. Discussion

As Bristol County Sheriff, you are a county employee. As
such, you are subject to the conflict of interest law, G.L. c.
268A, generally, and in particular, for the purposes of this
discussion, to s.s.23(b)(2) and 23(b)(3) of the statute.[2]

There is evidence indicating that, in 1991 and 1992, many
Bristol County correction officers were solicited to buy tickets
to your campaign committee's political fundraising events. Some
of these solicitations occurred on the job, in Sheriff Department
workplaces, and were made by superior correction officers of
their subordinates. These solicitations were to some degree
inherently coercive of the employees solicited. Regardless of
whether anything was said or implied by the ticket sellers about
the consequences on the job of buying or not buying tickets, it
is difficult in this context to view the purchase of tickets for
one's boss' political fundraiser as a free choice.

Since the authorization of Commission Advisory No. 4
(Political Activity) in 1984, the Commission has

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made clear that solicitations of this kind are prohibited by G.L.
c. 268A, s.23(b)(2), when engaged in by appointed public
employees. As the Commission stated in Advisory No. 4,


The Commission has repeatedly held that the conflict of
interest law s.23(b)(2) forbids public employees from
soliciting anything of substantial value from those
they oversee, because of the "inherently coercive"
nature of such solicitations. The Commission has
applied this principle to political campaigns. Thus,
appointed public employees may not solicit campaign
assistance from persons they regulate or who are under
their supervision (emphasis in original). For example,
they may not use their official title or authority, or
their presence at a meeting under coercive
circumstances, to solicit campaign assistance. ...The
same principle applies to campaign fundraising. Thus,
appointed public employees (whether compensated or not)
may not solicit political contributions from other
public employees whom they supervise, vendors that they
oversee, or anyone over whom they may have regulatory
power.


Thus, there is clearly reasonable cause to believe that the
senior ranking correction officers, who are appointed employees,
who solicited subordinates to buy your campaign committee's
fundraiser tickets violated s.23(b)(2).

Although you apparently did not directly participate in the
sale of your campaign committee's fundraiser tickets, you had
reason to know how the fundraiser tickets were being sold and to
whom. Although Sheriff Department employees on your political
committee were apparently cautioned about fundraising
restrictions, that action did not deter or prevent some of your
officers from soliciting their subordinates on the job. Your
failure to take effective affirmative action to prevent these
solicitations was in effect passive encouragement and approval of
the solicitations.

The Commission has not previously had occasion to address
the issue of whether and under what circumstances an elected
official whose senior ranking subordinates solicit lower ranking
employees for political assistance or contributions to the
elected official's campaign committee violates s.23(b)(2).
Because the elected official has the authority to halt this type
of prohibited solicitation, the elected official's failure to
effectively do so and his acceptance of political contributions
raised by the solicitation when he knows or has reason to know of
the nature of the solicitation is, in effect, a use of his
position to permit a prohibited activity. Sound public policy
dictates that the elected official has an obligation to prevent
such improper conduct once the official knows or has reason to
know that his subordinates are engaging in such solicitations.

In a March 9, 1982 public letter to then Boston Mayor Kevin
H. White (Compliance Letter 82-2), the Commission held that s.23
prohibits a "public official who controls the jobs of large
numbers of employees and the awarding of important contracts with
vendors" from permitting "a [birthday party] to be planned that
will raise money for him or any members of his family without
making every reasonable effort to insure that there is neither
direct solicitation of these employees or vendors nor pressure,
either implicit or explicit, on such employees or vendors to
attend or contribute."[3] Similarly, it is an unwarranted
privilege of substantial value and a violation of s.23(b)(2) for
an elected public official to allow appointed public employees in
his agency to solicit subordinate agency employees to make
political contributions (or otherwise provide assistance) to the
elected public official's campaign committee.

The 1991 and 1992 solicitations of Sheriff Department
employees by their superiors to purchase tickets to your
political fundraisers (and the monies thereby obtained) amounted
to unwarranted privileges of substantial value. By not taking
effective affirmative action to prevent these solicitations, you
appear to have used your position as sheriff to obtain
unwarranted privileges of substantial value not properly
available to similarly situated persons.[4] Accordingly, there
is reasonable cause to believe that you violated s.23(b)(2).

This same conduct and/or failure to act on your part also
appears to have violated G.L.c. 268A, s.23(b)(3)'s prohibition
against a public official knowingly, or with reason to know,
acting in a manner which would cause a reasonable person, with
knowledge of the relevant circumstances, to conclude that any
person can improperly influence or unduly enjoy his favor in the
performance of his official duties. Your failure to effectively
prevent the above-described actions of senior ranking correction
officers directly under your command would cause a reasonable
person, with knowledge of the relevant circumstances, to conclude
that you approved of the solicitation of Sheriff's Department
employees by their superiors to buy tickets to your political
fundraisers and, given the sales methods apparently employed by
some of your senior ranking officers (as described above in
paragraph 4), that you could be unduly influenced in the
performance of your official

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responsibilities as Sheriff by whether or not correction officers
purchased tickets to your political fundraisers. Thus, there is
reasonable cause to believe that you violated s.23(b)(3).

III. Disposition

Based upon its review of this matter, the Commission has
determined that this letter should be sufficient to ensure your
understanding of and future compliance with the conflict of
interest law.[5]


This matter is now closed.


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[1] Although on one occasion you apparently reprimanded a
senior ranking correction officer for such solicitations, you did
not inform your staff generally about the reprimand. You,
instead, apparently informed your campaign committee of the
reprimand and advised the committee to comply with all pertinent
campaign laws. You, however, did not take any further action to
ensure that your advice to your campaign committee was followed.

[2] Section 23(b)(2) prohibits a public employee from
knowingly, or with reason to know, using or attempting to use his
official position to secure for himself or others unwarranted
privileges or exemptions which are of substantial value and which
are not properly available to similarly situated persons.
Section 23(b)(3) prohibits a public employee from knowingly, or
with reason to know, acting in a manner which would cause a
reasonable person, with knowledge of the relevant circumstances,
to conclude that any person can improperly influence or unduly
enjoy his 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. Section
23(b)(3) further provides that it shall be unreasonable to so
conclude if such officer or employee has disclosed in writing to
his appointing authority or, if no appointing authority exists,
discloses in a manner which is public in nature, the facts which
would otherwise lead to such a conclusion.

[3] Although, the Commission in White stated that its ruling
did not relate to legitimate political fundraisers, as discussed
above, the solicitation by appointed superiors of their
subordinates is not legitimate political fundraising.

[4] It is clear that the solicitations were of substantial
value to you and your campaign fund. As the Commission noted in
EC-COI-92-5, for the purposes of s.23(b)(2), the raising of $50
or more would constitute substantial value. See also
Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976);
Commission Advisory No. 8.

[5] The Commission is authorized to impose a fine of up to
$2,000 for each violation of G.L. c. 268A. The Commission chose
to resolve this matter with a public enforcement letter because
the Commission has not previously indicated that it will view
elected officials as being responsible for ensuring that
appointed superior officers or employees do not solicit
subordinates for campaign contributions. In addition, it appears
that you took some, albeit ineffective, action to control the
above-described solicitations.

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