An elected public employee may use his public position to recommend for employment a person who is a current or former employee of the elected public employee in the office in which he is currently serving, or a person whose qualifications for employment the elected public employee learned in the course of his current public duties, provided that the elected public employee has reason to believe, based on those contacts, that the job applicant is qualified for the position for which he is applying.
Recommendations of Constituents
Elected public employees may also use their public positions to recommend their constituents. “Constituent” is not defined in the General Laws, nor is it defined in Commission precedent. Because elected public employees may have responsibilities to Commonwealth residents outside their specific districts, for purposes of the conflict of interest law, the Commission will consider an elected public employee’s constituents to be any person residing in the Commonwealth, whether or not they reside in the elected public employee’s specific district, county, or city or town. As with any other official action by an elected public employee, recommending a constituent for employment is subject to the conflict of interest law.
To comply with the prohibition against giving unwarranted privileges imposed by § 23(b)(2), an elected public employee should have some reason to believe that the constituent possesses the minimum qualifications for the position for which he is being recommended. The elected public employee may already be familiar with the constituent’s qualifications for the desired position. If not, the elected public employee should obtain sufficient information to satisfy himself that the constituent possesses the minimum qualifications for the position before making the recommendation. While the elected public employee is not required to interview a constituent before recommending him, the elected public employee should ascertain whether the constituent has the minimum qualifications for the position sought. An elected public employee may accomplish this by requiring any constituent seeking an employment recommendation to provide the job posting for the position sought, if one exists, and his resume, and then comparing them to determine whether the constituent meets the minimum qualifications for the position. If no job posting exists, the elected public employee should use her best judgment to determine whether the constituent meets the minimum qualifications based on the description of the position provided by the constituent and any other publicly available information.
Section 23(b)(2) prohibits public employees from knowingly providing or attempting to provide a benefit of substantial value selectively to a single individual, or to a discrete group. In considering whether prohibited special treatment has been provided selectively, the Commission will consider whether the elected public employee has a standard practice for handling requests for recommendations from his constituents, and, if so, whether that standard practice was followed in the particular instance. Such a process should include: taking reasonable steps to determine whether the constituent has the minimum qualifications for the position, as just described; making clear in the recommendation the information on which the recommendation is based, and not going beyond that information in making the recommendation; providing the same opportunity to obtain a recommendation to any other constituent requesting one; not putting pressure on the potential employer, directly or indirectly, or personally or through others; and not making recommendations prohibited by G.L. c. 271, § 40.
The conflict of interest law does not require elected public employees to recommend, nor does it prohibit them from recommending, their constituents; it only prohibits providing recommendations selectively to some constituents, but not to others who are similarly situated. An elected public employee may choose to limit the recommendations he provides as long as those limitations are consistent for similarly situated individuals. For example, an elected public employee would not violate the conflict of interest law by declining to make constituent recommendations at all, and instead adopting a practice of using her official title and letterhead only when she is recommending persons who have worked for her, or with whom she has worked, in her current public position, and making all other recommendations only in her personal capacity, without official title or letterhead. Alternatively, an elected public employee could choose to limit her constituent recommendations only to persons residing in her district without violating the conflict of interest law, provided that, in making such constituent recommendations, she observes a standard practice for handling such requests as just described.
The conflict of interest law also does not require an elected public employee to recommend, nor does it prohibit him from recommending, multiple applicants for an available position. An elected public employee may include as part of his or her standard process for handling constituent requests for recommendations a consistent practice of recommending only the first constituent who asks to be recommended, or the strongest candidate out of multiple candidates, and declining to provide recommendations for others seeking to be recommended for that same position.
Recommendations can and should reflect the public employee’s degree of familiarity with, and knowledge of, the person being recommended. Section 23(b)(2) of the conflict of interest law does not require an elected public employee to disregard information he knows about a constituent that is pertinent to whether the person is qualified for a position, or to recommend the person even though, for example, he knows or has learned that the constituent has a history of poor job attendance. An elected public employee may decline to recommend a constituent who meets the paper qualifications for a position, when there is some objective, job-related reason for doing so. Similarly, an elected public employee will not violate § 23(b)(2) of the conflict of interest law by writing a lengthy, detailed recommendation on behalf of a former member of her staff with whose qualifications she is personally familiar, and a less detailed recommendation on behalf of a constituent whom she has determined possesses the qualifications for the job, but about whom she knows much less than she does about her former staffer. Writing recommendations that accurately reflect what an elected public employee knows or has been able to determine about a candidate for employment does not give anyone an unwarranted privilege in violation of Section 23(b)(2) of the conflict of interest law, as long as the elected public employee has determined that the candidate for employment meets the minimum qualifications for the position.
Immediate Family Members
An elected public employee may not use his position to recommend his immediate family member, pursuant to the sections of the conflict of interest law that prohibit all public employees, elected or appointed, from participating in any particular matter in which an immediate family member has a financial interest. Because a job applicant has a financial interest in employment, elected public employees may not participate in their official capacities in any hiring process in which an immediate family member seeks employment. An elected public employee is considered to “participate” in his official capacity in any matter into which he interjects himself in his official role. Accordingly, an elected public employee who recommends an immediate family member for employment is participating in the hiring process in violation of the conflict of interest law.
Appearance of a Conflict of Interest
Section 23(b)(3) of the conflict of interest law prohibits all public employees, elected or appointed, from acting in a manner that would create the appearance of a conflict of interest. Specifically, it prohibits acting in a manner that would cause a reasonable person who knew the facts to conclude that anyone can improperly influence the public employee or unduly enjoy his favor, or that the public employee is likely to act or fail to act as a result of kinship, rank, position, or undue influence. The same section further provides that such an appearance of a conflict of interest will be dispelled if the public employee makes a public disclosure of the facts prior to acting.
An elected public employee’s recommendation of a constituent with whom the public employee has no other relationship, pursuant to the elected public employee’s standard practice for constituent recommendations, will not create an appearance of a conflict of interest pursuant to § 23(b)(3). However, a recommendation of a constituent who is also a personal friend, non-immediate family member, business associate, or someone with whom the elected public employee has some other comparable additional relationship, can create such an appearance. In these situations, assuming that the elected public employee has not provided any preferential treatment because of the relationship and has not applied any direct or indirect pressure in making the recommendation, the elected public employee can avoid a violation of the conflict of interest law by making a prior public disclosure of the facts to eliminate any appearance of a conflict, pursuant to § 23(b)(3). While we recognize that job applicants may be reluctant to have the fact that they are applying for a job publicly disclosed, in some circumstances a disclosure is needed to dispel the appearance of a conflict of interest, and protect the elected public employee from a violation of § 23(b)(3). If making a public disclosure is not a feasible option, then the elected public employee may only make the recommendation in his private capacity, without use of title, official letterhead or public resources.