Letter Ruling Public Enforcement Letter 89-4: Byron Battle
Dear Mr. Battle:
As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that you used your state title of Undersecretary of Economic Affairs, your official letterhead, and other state resources to solicit Massachusetts business and trade leaders to join a privately organized tour to the Soviet Union, knowing that if you could persuade enough people to go, your own trip plus an additional trip for a guest of your choice, valued at a total of approximately $8,000.00, would be free. The results of our investigation, discussed below, indicate that you appear to have violated the conflict of interest law in this case. Nevertheless, in view of certain mitigating factors, also discussed below, the Commission has determined that adjudicatory proceedings are not warranted. Rather, the Commission has concluded that the public interest would be better served by disclosing the facts revealed by our investigation and explaining the applicable provisions of the law, in the expectation that this will ensure both your and other government employees' future understanding of and compliance with the conflict law. By agreeing to this public letter as a final resolution of this matter, you do not necessarily admit to the facts and law as discussed below. The Commission and you have agreed that there will be no formal action against you and that you have chosen not to exercise your right to a hearing before the Commission.
In January, 1984, you became Undersecretary for International Trade in the agency then known as the Massachusetts Department of Commerce. In that position, you were responsible for setting up a new Office of International Trade and Investment to promote Massachusetts exports to foreign countries and to lead trade missions of Massachusetts business leaders to Europe and Asia.
In August of 1987, you were asked to accept a transfer to the position of Commissioner of Commerce. Soon after, due to legislative action, the Department of Commerce merged with the Executive Office of Economic Affairs (EOEA). At that point your title changed to Undersecretary of Economic Affairs, but your position was not otherwise affected. You have held this position continuously to date.
As the Undersecretary of Economic Affairs, you are no longer responsible for foreign trade missions on a daily basis although you do from time to time conduct them. Your current position is promotional, with no regulatory responsibility, focused on domestic industrial development. Your primary function is to target specific sectors in the Massachusetts industrial community and provide them with assistance in developing and maintaining domestic markets. Your office concentrates on industries that do not have substantial export potential and, accordingly, foreign trade missions are no longer part of your work plan.
Part of your responsibility is to set various selection criteria for deciding which industries your office will promote, with the most significant factor being the number of in-state jobs involved. Based on your input, the EOEA Secretary makes the final selection, and you are presently working on behalf of the Massachusetts woodworking industry and manufacturers of plastics. In addition to its promotional responsibilities, your office also serves as a "traffic cop" for Massachusetts industries, directing them to useful state agencies, sources of financial assistance, and other forms of development aid, but providing no direct aid.
Early in October, 1987, you received a promotional mailing from People To People, addressed to your predecessor as Commissioner of Commerce, soliciting delegation leaders for the People To People international tours. According to its literature, People To People was founded in 1956 by Dwight D. Eisenhower to promote international understanding through direct contact among citizens of different nations. The Goodwill People To People Travel Program is an officially-licensed program of People To People International providing escorted tour services. Since 1957, the Goodwill People To People Travel Program has been sending professional occupational delegations to all areas of the world to meet their counter-parts and compare methods and techniques relative to their common interests. The opportunity for exchange on a personal level is intended to contribute to world peace. The actual travel
arrangements are handled by a private travel agent.
Upon receiving the mailing, you contacted People To People for further information, although you considered it unlikely that you could participate, as you were aware that foreign travel was not in your current work plan, and the expense of it would not be included in your budget. You were then told by a representative of People To People that the leader of a People To People delegation did not pay his own way on the tour. You were told that if 20
people subscribed to your tour, you would travel free of charge. If from 30 to 37 people subscribed to your group, you would also be permitted to bring one additional person free of charge.
In the course of the conversation, you were encouraged to consider leading a tour of members of the Massachusetts business community to eastern Europe and the Soviet Union, due to your past experience with travel in the area and your current connection to the Massachusetts business community.
Following the telephone conversation with the representative of People To People, you decided to contact a number of business organizations in Massachusetts to determine if there would be any interest in the proposed trip. You subsequently called the heads of six business associations from your office during business hours. As a result of these exploratory telephone calls, the head of one such association volunteered to provide you with a mailing list of members to whom you might direct the invitations.
Having received what you considered to be a strongly favorable response to the proposed trip, on November 3, 1987 you wrote to People To People enclosing a delegation agreement, the first step in the clearance process for delegation leaders. You had at that time already obtained the mailing list, and you enclosed it in your letter. The mailing list contained approximately 300 names.
You stated to us that at the time you agreed to act as a delegation leader, you intended to take the trip on your vacation time, as a private venture of your own. You did not notify the EOEA Secretary of your intent to lead the tour.
You were subsequently approved as a delegation leader by People To People, and your responsibilities then became to submit a statement of purpose for the trip, a proposed itinerary, a draft invitation letter, a mailing list of 300 to 600 names, and stationery. You also received a substantial package of information and advice for delegation leaders for your review. You stated that you drafted two letters, made the six telephone calls referred to above, drafted a brief mission statement, and received and reviewed the package of information from People To People. Your secretary typed two letters, handled 12 calls seeking additional information, mailed invitations and stationery to the travel agent, and established a data base to track response cards as they came in. You also supplied People To People with a minimum of 300 sheets of state stationery and envelopes to accompany the mailing list. All the work done by you and your secretary in connection with organizing the trip took place on state time, utilizing state resources.
On or about January 2,1988, the People To People travel agent mailed the invitations on the state letterhead to the 300 people on the mailing list you provided. The letters were signed by you using your EOEA title. You wrote and sent an additional six letters to the heads of the business associations with whom you had previously spoken. These letters, also on state letterhead, described the trip as an "official business mission" and were also signed by you using your EOEA title. You also proposed to People to People that your group be named, "State Delegation - Trade and Industry."
At no time did you inform the EOEA Secretary of your involvement with this tour. On or about January 25, 1988, the EOEA Secretary and the EOEA General Counsel learned from other sources of your involvement with People To People. At that time, the Secretary ordered you to withdraw from your role as delegation leader, which you did. You also on January 25,1988 wrote a clarifying letter to the six business association leaders you had originally contacted, explaining that the mission as you had described it was not, in fact, an official mission of the state and reported the matter to this Commission on January 28,1988. The tour did not take place.
II. The Conflict Law
As Undersecretary for Economic Affairs, you are a state employee for the purposes of the conflict of interest law, G.L. c. 268A. In relevant part, s.23(b) (2) prohibits a state employee from using his official position to secure for himself unwarranted privileges of substantial value. For the purposes of G.L. c. 268A, "substantial value" has been determined to be anything valued at more than $50.00. See, Commonwealth v. Famigletti, 4 Mass App. 584,587(1979); Commission Advisory No. 8, Free Passes.
The facts set forth in this letter, if proven, would appear to establish a violation of s.23(b) (2). Thus, you used the resources of your office, i.e., your time, secretarial support, supplies, etc., as well as the appearance of state sponsorship, in an attempt to promote a free trip for yourself and possibly for another person, for a total value of close to $8,000.00. The Commission has already ruled that use of state resources in furtherance of a private interest of your own is a violation of the statute. See, Public Enforcement letter 78-1. Accordingly your use of state resources to solicit participants for a private trip appears to violate s.23(b) (2). Furthermore, you knew or should have known that your use of state letterhead and your otherwise making it appear that the trip was state sponsored made it more likely that the necessary number of people would subscribe, so that you and your guest could go free. The Commission has also ruled that an unwarranted appearance of state sponsorship or endorsement violates s.23(b) (2). See, In the Matter of Elizabeth Buckley, 1986 Ethics Commission (page 137). See also, EC-COI-84-43; EC-COI-82-112; EC-COI-81-88.
Nevertheless, due to certain mitigating factors, the Commission has determined that a public adjudicatory proceeding is not necessary to resolve this case. In choosing to resolve this case by means of a Public Enforcement Letter only, the Commission was mindful of the following mitigating factors:
1. you did not, in fact, obtain any financial benefit from your involvement in the People To People tour, other than the use of the state resources referred to above.
2. The value of the state resources you used in connection with the People To People tour was relatively small, and you have agreed to reimburse your agency for the resources used.
3. At the direction of the Secretary and General Counsel of your agency, you withdrew from the tour approximately three weeks after the solicitation went out, before any commitments to attend were made by any of the persons you solicited, and you wrote an explanatory letter to the six individuals you contacted directly in connection with the tour.
4. None of the persons you solicited were regulatees of your agency, and, accordingly, there no actual or implied coercion in your solicitation.
5. Given the nature of the People to People organization, the tour which you proposed to lead had a quasi-public purpose, and thus you appeared to have some genuine confusion as to the propriety of acting in your official capacity with respect to the tour.
6. You self-reported your actions to this Commission and have cooperated fully throughout our investigation.
Based on its review of this matter, the Commission has determined that the sending of this letter should be sufficient to ensure your understanding of and your future compliance with the conflict law. This matter is now closed.