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This advisory addresses the application of the conflict of interest law (Chapter 268A of the Massachusetts General Laws) to public officials/employees who accept free tickets or special or preferential access to purchase tickets to sporting, theatrical, musical and/or other events.
Public officials/employees are generally free to purchase tickets for sporting, theatrical, musical and/or other events at face value. Conflict of interest concerns are raised, however, where public officials or employees are, because of their appointed or elected positions, given free or discounted tickets or provided special access to purchase tickets even if at face value to events for which the same access is not available to the general public. The same concerns would apply to a public official who is allowed free entry to an event or invited to attend an event without a ticket where the event would otherwise require a ticket costing $50 or more. Section 23(b)(2) of G.L. c. 268A prohibits a public official/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 individuals.
A free ticket or a discounted ticket that is not available to the general public is a special benefit or a privilege. Unless such a free or discounted ticket is authorized, e.g. by law, regulation, ordinance or other legitimate rule, it would generally be unwarranted because there is no reasonable justification for a public official/employee to obtain such a privilege. The courts and the Commission have concluded that items with a value of $50 or more are of substantial value. Therefore, if the value of the free ticket or the value of any discount that is offered is $50 or more, a public official or employee who accepts the ticket risks violating § 23(b)(2) of the conflict of interest law.
The conflict of interest law is implicated whether or not a public official/employee initially solicits a free or discounted ticket. The fact that the public official/employee obtains the ticket to attend the event or otherwise takes advantage of the ticket and he knows, or has reason to know, that it was given to him because of his public position, constitutes a "use of position" for § 23(b)(2) purposes.
The Commission recognizes one important, although narrow, exception to the general rule. A public official/employee may accept a free ticket valued at $50 or more, where he/she is performing a legitimate, public ceremonial purpose at the event or his/her attendance at the event is consistent with the public official/employee's office or official responsibilities.
For example, a public official/employee may accept a free ticket if he/she were throwing out the first ball at a baseball game, making a speech at the event or performing some other similar public, ceremonial function. As the Commonwealth's chief executive officer, the governor or his designee could attend such an event without purchasing a ticket if invited as the Commonwealth's representative. Similarly, the mayor or other chief executive officer of a municipality or his designee could attend such event without purchasing a ticket if invited to represent the host municipality.
Special access to purchase tickets not available to the general public is also a special benefit or privilege. Such access to tickets may similarly be unwarranted. Even though there may not be a readily assigned value to such access, the Commission has found that certain privileges of no immediately ascertainable dollar or monetary value may also be of substantial value.
In determining whether special access provided to a public official/employee to purchase a ticket or tickets to an event is an "unwarranted privilege or exemption of substantial value," the Commission will look at the totality of the circumstances. The fundamental question, in each case, is whether a reasonable person wishing to attend the event would pay $50 or more over face value to purchase the ticket or tickets that the public official is being provided the opportunity to purchase at face value. In addressing this question, the Commission will examine a variety of factors including, but not limited to, the following:
For example, conflict of interest concerns would be raised if tickets to a major sporting event such as the Ryder Cup, the Superbowl or a World Series game were offered to public officials/employees to purchase at face value. Such tickets are limited in number and not readily available to the general public for purchase at face value. Other examples of special events that may raise conflict of interest concerns are tickets to major concerts and/or theatrical events.
As with the receipt of free tickets, it is not necessary that a public official/employee initially solicit the opportunity to purchase the tickets. It may be sufficient if he accepts the special access to the tickets offered as a result of his official position.
The Commission believes that the public's confidence in government is undermined when public officials and employees are offered and take advantage of free tickets or special access. The conflict of interest law's requirement that public officials and employees be treated similarly to the general public protects the public's right to expect that government officials and employees will not exploit their public positions for their private gain or advantage.
It is important to keep in mind that this advisory is general in nature and the examples in the advisory are representative and not all-inclusive. Public officials and employees are encouraged to seek specific legal advice about the application of the conflict law to the purchase of tickets when offered free tickets or special access to purchase tickets by contacting the State Ethics Commission at 617-371-9500 before purchasing the tickets.
APPENDIX: Frequent Questions and Answers
Q1. ( Friend's Extra Ticket) I am a public employee. A close, personal friend has an extra ticket to a major sporting event. May I accept a ticket from him?
A. Yes, if he is offering the ticket to you because of your friendship and not to influence or thank you for an official act or because of your position as a public employee. If your friend's motive may be a mixed one, e.g. partly friendship and partly in thanks for an official act that you performed, you should not accept the gift without seeking further advice from the Commission.
Q2. ( Determining Motivation) How does the Commission determine whether the motivation for my friend offering a ticket is our friendship or my position as a public employee?
A. The Commission considers such factors as how long you have known each other and whether your friendship was established prior to your becoming a public official. In addition, the Commission may consider whether you exchange gifts on holidays or to recognize other significant events, visit each other's homes or socialize regularly. In each case, the Commission will look at the totality of the circumstances surrounding a gift to determine whether the motivation was friendship.
Q3. ( Gift to Colleague) I am a public official and have a ticket valued at $50, for which I paid full value. I would like to give the ticket to another public official who is a colleague. May I give my colleague the ticket?
A. A ticket or other gift from one public official to another raises questions similar to those raised if a private party gives the ticket to the public official. You may give the ticket to your colleague if it is being given because of your personal relationship and not to influence or thank you for an official act or because of your colleague's position. If your motive for giving the ticket is mixed, e.g. partly friendship and partly as thanks for help with official work, you should not offer the gift without seeking further advice from the Commission.
Q4. ( Ceremonial Exception) I am a public official. The owner of a major theatre has invited me to join him in his front row box seat for the opening of a major musical show. Although we are friendly and have met at a few events, we do not socialize and are not personal friends. The theatre will occasionally have matters pending before my department but does not have anything pending at this time. The box seat is valued at $150. May I attend the opening?
A. No, unless you pay for the value of the box seat or your attendance at the event serves a qualified, ceremonial function or is consistent with your official responsibilities as discussed in Commission Advisory No. 04-1. Although you and the owner are on friendly terms, you relationship is primarily professional. Your acceptance of a free box seat therefore would be an unwarranted privilege of substantial value.
Q5. ( Chance Meeting Invitation) I am a well-known public official and am attending a major sporting event. At a chance meeting at the event, the stadium's owner invites me to join him in his booth. I visit for 15-20 minutes. Tickets for seats in similar booths can cost as much as $250 per game. May I visit the owner in his booth?
A. Yes. A short visit to a booth under these circumstances is not an unwarranted privilege of substantial value. On the other hand, spending the entire game in the box would be of substantial value and prohibited unless you pay for the value of the seat in the booth.
Q6. ( Dispelling Appearance of Conflict) I am a public employee. A professional acquaintance, who has a matter pending in my office, has offered me a ticket valued at $45 to a charitable event. May I accept the ticket?
A. No unless you first make a public, written disclosure to your appointing authority that completely and accurately describes your relationship and the nature of the matter pending at your office. Checking with your appointing authority before accepting the ticket is important since your appointing authority may have established stricter standards than those imposed by the conflict of interest law.
APPENDIX added: May 26, 2004
This Advisory is intended to summarize the State Ethics Commission’s advice concerning compliance with the conflict of interest law and is informational in nature. It is not a substitute for advice specific to a particular situation, nor does it mention every aspect of the law that may apply in a particular situation. Public employees can obtain free, confidential advice about the conflict of interest law from the Commission’s Legal Division by submitting an online request on our website, by calling the Commission at (617) 371-9500 and asking to speak to the Attorney of the Day, or by submitting a written request for advice to the Commission at One Ashburton Place, Room 619, Boston, MA 02108, Attn: Legal Division.