Letter Ruling  Public Enforcement Letter 90-5: Carol Corso

Date:	01/18/1990
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Carol Corso

c/o Daniel J. Bailey, Esq.
83 Broad Street
Union Towers Mall
P.O. Box 147
Weymouth, MA 02188

Dear Ms. Corso:

As you know, the State Ethics Commission has conducted a preliminary inquiry regarding an allegation that you, as Director of the Haverhill Council on Aging, have been traveling free: or at reduced rates, on so-called “familiarization trips” (FAMs) offered by travel agencies to promote sales of their trips to senior citizen organizations.  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, with 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.

I. Facts

1.  You are the Director of the Haverhill Council on Aging.  In that capacity, you supervise the Volunteer Coordinator, Joyce Pavlidakes.  One of the responsibilities of the Volunteer Coordinator is to offer recreational trips to the elderly, including overnight and day trips.  Ms. Pavlidakes selects the trips the senior citizens will be offered based upon location, price, meals, accommodations, and the reputation of the tour company.  The trips are paid for by the senior citizens themselves, and the Haverhill Council on Aging makes a 5% commission on each trip.  The money is used to fund senior citizen parties and other social activities of the Council.

2.  It has been the practice of virtually all of the Massachusetts Councils on Aging to send their travel coordinators on trips sponsored by tour companies.  The tour companies run the so-called FAMs for the coordinators as they would if the senior citizens were attending in order to give an accurate experience of the services and accommodations offered.

3.  In the course of our inquiry, you informed us that you attended a FAM operated by Sisson Tours to Vermont on November 19 and 20, 1988.  You stated that you paid your own way, used your vacation time and were accompanied by your husband who also paid his own way.  According to Sisson Tours, the FAM cost you and your husband $59.00 per person while the regular rate for this weekend as sold to senior citizens would be $189.00 per person.

4.  On or about November 11, 1988, you and Joyce Pavlidakes also attended a four-day FAM run by Colette Tours to Montreal and Quebec.  The cost to you was $69.00 per person.  The regular price for the trip, according to a Colette Tours travel agent, would be $179.00 per person.

5.  Neither the Vermont package tour nor the Montreal package tour was offered to the senior citizens through the Haverhill Council on Aging travel program.

6.  In the course of our inquiry, we spoke with the Executive Director for the Massachusetts Council on Aging. She informed us that there are 340 Councils on Aging around the state.  She told us that some of the Councils organize many trips for their senior citizens while others do not plan as many.  While she informed us that she was not sure how widespread the practice of accepting FAMs was, she was sure that all Council on Aging employees and trip planners believe the practice to be acceptable.

7.  The Commission finds no corrupt intent on your part in connection with the above-described conduct.  The Commission knows of no evidence that you were aware that accepting these trips may have violated the law.  In fact, there appears to be a widespread misconception among public employees of municipal Councils on Aging that such trips are permissible.

II. Analysis

As the Director of the Haverhill Council on Aging, you are a municipal employee for the purposes of the conflict of interest law, G.L. c. 268A. Section 3(b) of G.L. c. 268A prohibits a municipal employee, other than as provided by law for the discharge of his official duties, from requesting or accepting anything of substantial value[1] for himself for or because of official act[2] performed or to be performed.  The selection of tours and trips to be promoted by your agency to the senior citizens of Haverhill is an official act.  When travel agencies offer you and members of your family substantially discounted travel with the intent of persuading you that their travel packages are suitable for your program, they are providing you with something of substantial value because of official acts to be performed by you.  Accordingly, this practice violates G.L. c. 268A, §3(b).  It is not sufficient that the trips may serve a valid public purpose in allowing you to make informed decisions about available travel packages. As the Commission previously noted in EC-COI-82-99,

a system wherein the manufacturers of products pay for trips by state employees is clearly open to abuse by the state employees as well as the manufacturers.  State employees can exploit the system in order to procure unwarranted privileges and the public impression that state employees were improperly influenced in their decision could arise.

Although in a slightly different context, the logic is equally persuasive in this instance.  Accordingly, we consider such travel to be prohibited in the absence of explicit authorization.

As noted above, the Commission acknowledges that there may be a legitimate public purpose to justify a Council on Aging travel planner in accepting a privately sponsored FAM.[3]  For that reason, although the Commission prohibits you from receiving directly a discounted trip from a travel agency, there is a lawful way to accomplish the same result.  Cities and towns may adopt an ordinance or bylaw authorizing and regulating the acceptance of FAM discounts for use by designated employees.  The ordinance or bylaw could require the travel agency, airline or hotel to identify the nature, purpose and cost of the trip and could require prior approval by the City Council or Board of Selectmen.  This would avoid any risk of a public perception that the FAMs give unfair advantages to the travel agencies that sponsor them or that the public employee is being unduly influenced by secret wining and dining.[4]

III. Disposition

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 of interest law.[5]

This matter is now closed. If you have any questions, please contact me at [phone]. 

[1] In the past the Commission has found $50.00 to be substantial value.  See, Commonwealth v. Famigletti, 4 Mass. App. 584, 587 (1976).

[2] “Official act,” any decision or action in a particular matter or in the enactment of legislation. “Particular matter,” any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim; controversy, charge, accusation, arrest, decision, determination, finding, but excluding enactment of general legislation by the general court and petitions of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property.

[3] It is unlikely, however that that purpose could ever be stretched to justify travel by family members.

[4] We note that G.L. c. 44, §53A may also provide an alternative.  The statute provides that “[a]n officer or department of any city or town ... may accept grants or gifts of funds from ... a private corporation, or an individual and ... may expend such funds for the purposes of such grant or gift ...” with the specific approvals applicable to the form of government.  However, this procedure may not be adaptable to the type of in-kind discount represented by the FAMs. Should you choose to explore this further, we recommend you consult with the City Solicitor.

[5] The Commission could have directed the staff to commence adjudicatory proceedings in which, if you were found to have violated §3, fines of up to $2,000.00 for each violation could be imposed.  The Commission has chosen to resolve this matter with a public enforcement letter because (1) there appears to be a widespread misconception among the public employees of the municipal councils on aging that such travel is permissible, and (2) the Commission knows of no evidence that you were aware that accepting these discounted trips violated the law.