| Date: | 05/24/1983 |
|---|---|
| Organization: | State Ethics Commission |
A member of the General Court may have his travel, lodging and meal expenses in connection with a legitimate speaking engagement at a convention provided by the private group having the convention, as long as the expenses are limited to transportation to and from the site, lodging at the site made necessary by the speech, and those meals immediately surrounding the speech.
You are a member of the General Court and House Chairman of a Committee (Committee). You have been asked by an Association (Association) to speak at its annual convention which will be held out of state. The Association has offered to provide your "transportation, hotel, food and related expenses."
May you attend the convention and accept the provision of transportation, hotel, food and related expenses by the Association?
Yes, but you may only receive those expenses for transportation, lodging and meals directly related to your speech.
As a member of the General Court, you are a state employee as defined in the conflict of interest law, G.L. c. 268A, § 1 et seq, and as a result are covered by that law.
Whenever a public official or employee receives a benefit or gratuity from someone in the private sector who can be affected by the actions of that official or employee, issues under the conflict of interest law arise. In particular, the provisions of § 3 and § 23 come into play.
Section 3(b) of the conflict of interest law prohibits a state employee from accepting or receiving anything of substantial value for or because of any official act or act within his official responsibility performed or to be performed by him.[1] This section is much broader than the statute's bribery provisions[2] because it does not require a corrupt intent on the part of the public employee, and covers conduct which may not necessarily be viewed as corrupt.[3] The receipt of something of substantial value violates § 3 even if given solely out of gratitude for a job well done or out of the desire to maintain a public employee's goodwill[4] no quid pro quo is necessary, but only the acceptance of something of substantial value which is given for or because of official duties. In interpreting what is meant by the term "substantial value," a Massachusetts court has found that an item worth $50 may constitute substantial value under this statute.[5] "Official act" is defined in the statute as "any decision or action in a particular matter or in the enactment of legislation." G.L. c. 268A, § 1(h). The law also defines "official responsibility" as "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, § 1(i).
The Standards of Conduct set out in § 23 of G. L. c. 268A prohibit state employees from using their official position to secure unwarranted privileges for themselves or from engaging in conduct which gives reasonable basis for the impression that any person can improperly influence them or unduly enjoy their favor in the performance of their official duties or that they are unduly affected by the position or influence of any party or person. On this basis the Commission has held that a member of the Massachusetts Convention Center Authority could not accept travel to Washington, D.C. in connection with an appearance promoting tourism in Boston from a private group which was directly affected by the Authority's actions and was contemplating applying to the Authority for funding. EC-COI-83-19. The role of a legislator, in some ways, is distinguishable from that of the head of a regulatory or fund awarding agency. Even regulation "reported favorably" by a committee must be approved by the legislature for final passage. In contrast, a state agency official may, in many cases, act directly and distinctly to the benefit of an individual or group totally within his own discretion and authority. While the conflict law seems to recognize the need for constituent access to legislators by modifying the law's application in certain situations (see, for example, G. L. c. 268A, § 4), § 23 would still be applicable to a legislator who receives items of value from someone who has an interest in matters before the General Court.
As long as transportation, lodging and meals are in fact received by a legislator in connection with a legitimate speaking engagement, neither § 3 nor § 23 would be violated. With respect to § 3, the items would be merely expenses attendant io the engagement and would not be for or because of any official act or acts performed or to be performed by the legislator. With respect to § 23, the opportunity for constituent or interest group access to legislators is not unwarranted and should not result in any improper appearance. However, the legislator should receive only those items of transportation, lodging and meals which are directly related to a legitimate speaking engagement and no more, If a legislator were to receive more (for example, expenses related to an extended stay, any expenses for a guest, receptions in his honor, entertainment, or special services), or if the trip was not being made for a legitimate speaking engagement, § 23 would be violated. In addition, § 3 issues could be raised depending on the facts in any particular instance.
For a speaking engagement to be considered legitimate, it would have to be,
1) formally scheduled on the agenda of the convention or conference,
2) scheduled in advance of the legislator's arrival at the convention or conference,
3) before an organization which would normally have outside speakers address them at such an event. Moreover,
4) the speaking engagement must not be perfunctory, but should significantly contribute to the event, taking into account such factors as the length of the speech or presentation, the expected size of the audience, and the extent to which the speaker is providing substantive or unique information or viewpoints.
If these four factors are not satisfied, no items or expenses may be received. Assuming the speaking engagement is legitimate, the legislator may receive transportation to and from the site, lodging at the site made necessary by the speech and those meals immediately surrounding the speech. Thus, in your case, as we understand it, the convention will be held out of state over a four-day period. If, for example, you were scheduled to speak in the morning of the second day, you could receive your transportation from Massachusetts to the location and back, lodgings for the night before your speech and those meals right before and right after your speech. If you wanted to stay the other nights or partake in other convention meals or events, you would have to do so at your own expense (or, if deemed appropriate, at the Commonwealth's expense).
Adherence to these guidelines will insure that the legislator's appropriate interest in being available to constituents and other interest groups and in educating himself in areas of legislative concern will be balanced with the state's interest in assuring the citizens' of the Commonwealth that the acts of its legislature are not the product of the benefits which an interested individual or group may bestow upon legislators.
End Of Decision
