| Date: | 11/22/2019 |
|---|---|
| Referenced Sources: | G.L. c. 268A, the Conflict of Interest Law, as Amended by c. 194, Acts of 2011 |
November 22, 2019
Dear Secretary Galvin:
As you know, the State Ethics Commission conducted a preliminary inquiry into whether you violated the conflict of interest law by using your position as Secretary of the Commonwealth (“Secretary”) to engage in political activity in support of your reelection to that office in 2018. You cooperated fully with the inquiry. On May 16, 2019, the Commission voted to find reasonable cause to believe that your actions, as described below, violated Section 23(b)(2)(ii) of the conflict of interest law, General Laws chapter 268A, and authorized adjudicatory proceedings.
The Commission has determined that, in lieu of adjudicatory proceedings, the public interest would be better served by publicly discussing the facts revealed by the preliminary inquiry and explaining the application of the law to those facts in this Public Education Letter. The Commission chose this resolution because the application of the conflict of interest law to the type of actions described in this letter and to similar actions of other election officials is not explained in the Commission’s Public Employee Political Activity advisory and has not been the subject of a Commission decision or formal opinion. The Commission expects that, by resolving this matter through this Public Education Letter, you, and other public employees in similar circumstances, will have a clearer understanding of the conflict of interest law and how to comply with it in connection with future elections.
The Commission and you have agreed that this matter will be resolved publicly with this educational letter and that there will be no formal proceedings against you. You have chosen not to exercise your right to a hearing before the Commission. By agreeing to this public letter as a final resolution of this matter, you do not necessarily admit to the facts or the legal conclusions discussed below.
I. The Facts
You have served as Secretary since January 1995. The Secretary is elected statewide, serves a four-year term of office, and is the state’s chief election officer under the constitution and laws of the Commonwealth. Among other duties and responsibilities, the Secretary is charged with the supervision and administration of elections in conjunction with local election officials and has the authority to ensure, including by order, that local election officials comply with the law. The Secretary is also the chief securities regulator for Massachusetts. In 2018, you were a candidate for election as Secretary.
Information for Voters Booklet
Under the Massachusetts constitution and state law, the Secretary’s office is required to print and distribute an “Information for Voters” booklet prior to each general state election providing specified information on all statewide ballot questions. In order to reach all voters in the Commonwealth, the booklet is mailed to all residential addresses and post office boxes in the state and to other Massachusetts addresses, including public libraries, municipal clerks’ offices, dormitories and nursing homes, and is required to be available at all polling places.
To publish the Information for Voters booklet in a timely fashion, the Secretary’s office must issue a Request for Responses for the printing and delivery of the booklet before the exact number of ballot questions is known. This process commonly results in the booklet containing more pages than required to fulfil the Secretary’s legal duties. To fill pages which would otherwise be left blank, the Secretary’s office customarily includes in the booklet additional information relating to available governmental services. The 2018 edition of the booklet, like prior editions, contained information in addition to the required ballot-question related information. Indeed, the 2018 edition included exactly the same additional information as the 2016 edition, including the information that is the subject of this letter. In 2016, you were not candidate for election.
In the 24-page 2018 edition of the Information for Voters booklet, the top two thirds of page 21 is dedicated to descriptions of seven situations in which the Securities Division of the Secretary’s office helped victims of investment fraud, under the heading “If you have been the victim of investment fraud, Secretary Galvin’s office might be able to help.” Each description refers to assistance by “Secretary Galvin’s office,” rather than by “the Secretary of the Commonwealth” or “the Secretary’s office” or “the Securities Division.” The phrase “Secretary Galvin’s Office” appears twelve times on page 21. Page 20, by contrast, lists the “Services of the Secretary of the Commonwealth,” and does not use your name to describe ways the Secretary’s office can help Massachusetts residents. The remaining third of page 21 references services for domestic violence victims provided by the Secretary and does not use your name.
You told us that no one from your election campaign staff had any involvement in determining the content of the Information for Voters booklet. You also told us that you did not see the final 2018 booklet before its publication and did not know of the content of page 21, although you did know the booklet would contain “filler pages” and had reason to know that those pages would contain information from a prior booklet. You further told us that you had seen the 2016 edition of the booklet and were aware it had content regarding the Securities Division, but you did not recall the specific language used in 2016.
Early Voting Signs
Massachusetts first implemented Early Voting for the 2016 general election. The Secretary’s office is charged with the implementation, facilitation, and operation of Early Voting. The law requires the Secretary to prepare and print informational materials to assist local election officials with Early Voting.
The law requires municipalities to have at least one Early Voting location. As Early Voting locations are generally not the same as established polling places, in the early fall of 2016, the Secretary’s office, in response to inquiries from local election officials concerning Early Voting signage, produced signs to be distributed to municipalities to identify Early Voting locations. These signs, stating “Early Voting Here” in large print on the top half, included on the bottom fifth your full name directly above “Secretary of the Commonwealth” and next to the state seal. While your name and title were printed in a font that was smaller than that used for “Early Voting Here,” they were nonetheless a prominent feature of the sign. The graphics of the Early Voting sign are the same as used for other material distributed by your office, including Register to Vote signs. The 2016 Early Voting sign design was used without change again in 2018. For the 2018 election, approximately 1,000 of the Early Voting signs were printed and distributed to local election officials throughout the Commonwealth. You told us that you did not require local election officials to use the signs or mandate that they be displayed in any specific way. You also told us that you did not personally review the signs before they were printed and distributed in 2018, and that no one from your election campaign staff had any involvement in the signs.
II. The Conflict of Interest Law
Section 23(b)(2)(ii)
As Secretary, you are an elected state official and a state employee subject to the restrictions of the conflict of interest law, G.L. c. 268A. Section 23(b)(2)(ii) of the law 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 of substantial value that are not properly available to similarly situated individuals. The Commission has construed §23(b)(2)(ii) to prohibit public employees from using resources of their public offices to conduct election-related political activity. In the absence of a law or regulation permitting it, such use of public resources is an unwarranted privilege that is not properly available to similarly situated individuals, such as other candidates for office, and, when the resources are of substantial value, it violates §23(b)(2)(ii).
Application of the Conflict of Interest Law to the Facts
Information for Voters Booklet
As Secretary, you are required to publish the Information for Voters booklet. It is not a conflict of interest law issue to include on otherwise blank pages of the booklet bona fide neutrally-stated public service information. Because it serves the public interest to include such information, its inclusion is justified and not unwarranted. The above-described material on page 20 of the 2018 booklet and on the bottom third of page 21 of the 2018 booklet meet this description and their inclusion was not inconsistent with the conflict of interest law. The same is true of the registration and voting information on pages 16 through 19 of the 2018 booklet. By contrast, the inclusion in the booklet of material not required by law and providing a political advantage to a candidate on the ballot would not be in the public interest, not justified and not warranted.
As described above, the material on the top two-thirds of page 21 of the 2018 booklet repeatedly uses your name in describing investment fraud help provided by the Securities Division of the Secretary’s office. The use of your name in the phrase “Secretary Galvin’s office,” was not required by law and was not necessary to inform potential victims of investment fraud of what the Securities Division can do for them.
The repeated use of the phrase “Secretary Galvin’s office” in the Information for Voters booklet provided you with a political benefit as it highlighted and in effect personally credited you with specific achievements of the Securities Division during your service in the position to which you were seeking reelection. It was free positive publicity for you during your reelection campaign. This free publicity in an official state publication issued in connection with the general state election and distributed to all voters in the Commonwealth was a substantially valuable unwarranted privilege that was not properly available to you or any other candidate for elected office.
Early Voting Signs
Even if your office staff used the graphics which included your name on the Early Voting signs with no intent other than to ensure that they appeared authentic or official, the prominence of your name on the signs gave them the appearance and likely the effect of campaign signs for your election as Secretary. Candidates often expend considerable sums of money for signs bearing their names and the office they are seeking and distribute them in visible locations to encourage name recognition by voters. The prominence of your name on the Early Voting signs resulted in voters likely seeing your name immediately before entering the voting location. As the Early Voting signs would have looked equally official if they had simply said “Secretary of the Commonwealth’s Office” and/or included the state seal without your name, the inclusion of your name on the signs was not necessary. Accordingly, the prominence of your name on Early Voting signs was a substantially valuable unwarranted privilege that was not properly available to you.
Reason to Know of Use of Official Position
As the Commonwealth’s chief election officer, you are ultimately responsible for the administration of elections, including the development and printing of the Information for Voters booklet and Early Voting signage. Before they were published and distributed in 2018, you had reason to know that the booklet repeatedly referred to “Secretary Galvin’s office” and the signs prominently featured your name given that you were aware they were being produced by the Secretary’s office with the same information and in the same form as had been used in 2016. Consequently, when as Secretary you allowed the publication and distribution of the 2018 Information for Voters booklet and Early Voting signs, you had reason to know that those materials would promote you as Secretary and provide you with substantially valuable unwarranted benefits.
Legal Conclusion
When as Secretary you published the 2018 Information for Voters booklet with language that in effect promoted your candidacy for re-election, and allowed the distribution of Early Voting signs on which your name and office were prominently printed, you had reason to know that you were using your official position to secure for yourself substantially valuable unwarranted privileges that were not were not properly available to you or any candidate for elected office. Accordingly, the Commission voted to find reasonable cause to believe that you violated §23(b)(2)(ii) of G.L. c. 268A.
Further Guidance
The Commission recognizes that it can be difficult to draw a line between legitimate public information and self-serving political activity when an elected public official uses his or her name or title purportedly to inform the public about the work or services of a public agency. The Commission concludes, however, that when the communication is made by an election official in connection with an election under that official’s authority, §23(b)(2)(ii) requires that it contain only truly neutral information and not in any way promote the election official or any other candidate for office.
The Commission is not suggesting that the conflict of interest law requires you to entirely discontinue the use of your name on election-related materials when you are a candidate on the ballot. The Commission is aware that the law requires the Secretary to certify the ballot using his or her name. In addition, there are circumstances where the use of your name on election-related materials, while not required by law, serves a legitimate public purpose even if it may result in some incidental private benefit to you. For example, the “Dear Voter” letter signed by you as Secretary (on the second page of the Information for Voters booklet) was not unwarranted given that you provided important factual information to the public about registration, voting and the purpose of the booklet in your role as Secretary. Similarly, in general, the inclusion of your name and title on the bottom of the front page of the Information for Voters booklet was not unwarranted given that it served to identify you as the booklet’s publisher. In determining whether the use of your name in election-related materials when you are a candidate on the ballot is warranted under the circumstances, the key question is whether the public purpose of the materials can be accomplished without the use of your name and, thus, without any private benefit to you. In this case, omitting, or at least substantially reducing the prominence of your name on the Early Voting signs and omitting the repeated use of your name on page 21 of the booklet would not have lessened the public utility of the sign or booklet, but would have avoided a significant private benefit to you as a candidate. Accordingly, the use of your name as described above on the Early Voting sign and on page 21 of the booklet was not warranted.
III. Disposition
Based upon its review of this matter, in which you fully cooperated, the Commission has determined that the public interest would be best served by the issuance of this Public Education Letter and that your receipt of this 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
Executive Director