In general, a public employee may not use his public position to engage in political activity. Section 23(b)(2)(ii) of the conflict of interest law prohibits the use of one's public position to engage in political activity, because a public employee who does so is using his official position to secure for himself or others (such as a candidate or a ballot question committee) unwarranted privileges of substantial value that are not properly available to similarly situated persons.
There are two exceptions to this general rule. First, elected officials, and public employees who hold policy-making positions, have more leeway to make statements about and take action concerning ballot questions, while using their public positions and public resources, than do appointed public employees who do not hold policy-making positions. Second, elected officials have greater latitude than non-elected public employees to engage in certain other election-related political activities. These exceptions are discussed in more detail below in sections 3 and 4.
Subject to these exceptions, a public employee may not engage in political activity, whether election-related or non-election related, on his public work time; while acting in his official capacity or while in his official uniform; in a public building (except where equal access for such political activity is allowed to all similarly situated persons); or with the use of other public resources, such as staff time, public office space and facilities, public office equipment such as computers, copiers, and communications equipment, public websites and links to public websites, or public office supplies such as official stationery.
A public employee who engages in such political activity, unless the activity is of truly minimal duration or significance (such as wearing a political campaign button to work in a public office), violates the conflict of interest law.
Example: A state employee sends out a blast email urging all her contacts to vote for a particular candidate for Governor. This is a violation of the conflict of interest law, because she is using public resources to support a particular candidate.
Example: A state legislator directs his district office staff, who are paid state employees, to use paid state work time to visit voters in his district, pass out his campaign literature, and urge voters to vote for him. This is a violation of the conflict of interest law, because he is using his official position and public resources to gain election.
Example: A police chief urges voters entering a polling place to vote for a particular candidate for District Attorney. The police chief is wearing his uniform and standing near the entrance to the polling place while he does so. This violates the conflict of interest law because he is using his official uniform to support that candidate.
Example: An incumbent Selectman seeking reelection uses her official position to gain access to the Board of Selectmen's meeting room, which under town policy is not available for private use, to make a campaign video featuring herself in the meeting room standing next to the town's seal, urging voters to vote for her, and soliciting campaign donations. This violates the law, because the Selectman is using her official position to gain access to and use the meeting room and the town seal, both of which are public resources, for the private purpose of securing her reelection to the Board. The Selectman would not violate the law by using in her campaign materials a news media photograph of herself in the Board's meeting room taken during a public meeting, even if the photograph included the town seal, because then she would not be using her official position to get an unwarranted privilege.
Example: Municipal Department of Public Works employees who are union officers use paid work time to attend a fundraiser for a mayoral candidate as representatives of their union. This violates the conflict of interest law because they are using their public work time, which is a public resource, to obtain an unwarranted privilege for themselves, the use of work time for private purposes.
Example: A City Councilor puts links on her city council website to her campaign website and to websites of other candidates who belong to her political party. This violates the conflict of interest law, because she is using her City Council website to obtain an unwarranted privilege of substantial value for herself, and to confer such an unwarranted privilege on the other candidates whose websites are linked.
Below are further examples of election-related political activities that public employees MAY NOT DO. Public employees MAY NOT:
· send campaign-related emails using official computers or email,
· send campaign-related documents using official fax machines,
· use a public office telephone to make campaign-related calls,
· use on-duty public employees or public supplies, materials, or equipment to create, reproduce or distribute campaign materials,
· use official letterhead stationery, even if privately paid for, to advocate for or endorse a candidate or to support or oppose a ballot question,
· use any public seal, logo, or insignia, on campaign materials,
· use public office staff or equipment to do any of the following: conduct campaign research, write campaign or political speeches, conduct campaign polls, answer campaign questions, or create or maintain voter or supporter databases or campaign website or links,
· use public office staff or space for a press conference to endorse, promote or oppose a candidate or ballot question position,
· if appointed, use a public title while campaigning,
· if appointed, use a public title to endorse a candidate,
· if appointed, use a public title to support or oppose a ballot question (except to the extent appointed policy-makers are permitted to do so, as further discussed below in Section 3 of this Advisory),
· if appointed, perform election campaign tasks while on public work time,
· hold campaign planning meetings or any other campaign-related event in public office space, or
· wear a public employee uniform while performing campaign tasks or urging support for a particular candidate or measure.
Political fundraising is regulated by G.L. c. 55, the campaign finance law. In addition to the restrictions of Chapter 55, Section 23(b)(2)(ii) of the conflict of interest law prohibits all public employees - whether elected, appointed, or policy-making - from directly or indirectly soliciting political contributions of any kind, including personal services, in any situation where such a solicitation is inherently coercive.
A solicitation is inherently coercive, and therefore prohibited by the conflict of interest law, if it is directed by a public employee at his subordinate, persons or entities doing business with or having a matter pending before his public agency, or anyone subject to his or his agency's authority. By contrast, campaign contributions which are voluntarily made in response to a general rather than a targeted solicitation may be accepted from such sources if they are received and reported by the official's campaign committee in compliance with the campaign finance law.
Example: A Superintendent of Schools suggests to her office staff that they contribute to the campaign of a School Committee candidate. This is inherently coercive because it is directed at subordinate employees, and violates the conflict of interest law.
Example: An incumbent candidate for reelection to a School Committee personally solicits, or directs his campaign workers to solicit, donations from local businesses that have contracts with the School Department. Such solicitations are inherently coercive because they are targeted at persons doing business with the candidate's agency, who are subject to his official authority. Therefore, such solicitations violate the conflict of interest law. The candidate may not direct his campaign workers to do what he is prohibited from doing himself.
The conflict of interest law also restricts the extent to which a public employee may represent campaigns and grass roots groups in dealings with government agencies. A public employee who is not serving in a "special" position may not represent a political campaign or a grass roots group in its dealings with public agencies at his level of government (state, county, or municipal), pursuant to Sections 4, 11 and 17 of the law.
Example: A full-time municipal employee may not (even as an unpaid volunteer) sign a municipal campaign finance report to be filed with the town clerk, nor could he be paid to help prepare the report even if he did not sign or deliver it.
Example: A full-time state employee with the Department of Conservation and Recreation may not act as a candidate's attorney (even on her own time and without a fee) before the State Ballot Law Commission, nor could she be paid to review signatures on nomination papers, even if she did not appear before the Commission.
These restrictions generally apply to "special" public employees only as to matters in which the employee participated, or for which the employee had official responsibility, or which is pending in the special public employee's agency.
Example: A town Conservation Commissioner whose position has been designated as "special" may sign a municipal campaign finance report on behalf of a candidate for selectman and file the report with the town clerk because Conservation Commissioners have no official responsibility for campaign finance reports.
Example: A town clerk whose position has been designated as "special" by the Select Board may not sign such a report to be filed with her own office, because, as town clerk, she has official responsibility for receiving such reports.
If you are uncertain whether your position is a "special" position for purposes of the conflict of interest law, you should obtain advice from the Ethics Commission's Legal Division by calling (617) 371-9500, or online at www.mass.gov/ethics.