| Date: | 10/11/1984 |
|---|---|
| Organization: | State Ethics Commission |
A non-profit organization that has entered into a partnership with a state agency such that state agency employees are assigned to work for the non-profit organization is prohibited by § 3 of the conflict of interest law from providing payments to the state employees to work beyond their normal duties.
You are the director of a non-profit agency which has a partnership agreement with the Department of Mental Health (DMH). Under the terms of this agreement, several DMH employees are assigned to your agency. The agency's board of directors would like to give incentive awards to employees to perform beyond expected levels. These awards would be one-time cash awards, not to exceed three hundred dollars, and the recipients of the awards would be determined by a committee of their peers. The money for the awards would not come from state funds,
Does G.L. c. 268A permit state employees to be recipients of these cash incentive awards?
No.
DMH employees assigned to your agency are state employees, and therefore are subject to the provisions of G.L. c. 268A, the conflict of interest law. The section of that law relevant to your question is § 3. It prohibits a person from directly or indirectly giving a state employee anything of substantial value for or because of any official act performed or to be performed by the employee. G.L. c. 268A, § 3(a). It also prohibits a state employee from soliciting or receiving anything of substantial value from any person for or because of any official act performed or to be performed by him or her, G.L. c. 268A, § 3(b).
The purpose of § 3 is to prevent the giving or receiving of items of value to public employees in addition to their salaries for performing their official duties.[1] The Commission addressed this purpose at some length in In the Matter of George A. Michael, 1981 Ethics Commission, 59, 68. A public employee need not be impelled to wrongdoing as a result of receiving a gift or gratuity of substantial value, in order for a violation of Section 3 to occur. Rather, the gift may simply be a token of gratitude for a well-done job or an attempt to foster good-will. All that is required to bring Section 3 into play is the nexus between the motivation for the gift and the employee's public duties. If this connection exists, the gift is prohibited. To allow otherwise would subject public employees to a host of temptations which would undermine the impartial performance of their duties and permit multiple remuneration for doing what employees are already obliged to do a good job. Sound public policy necessitates a flat prohibition since the alternative would present unworkable burdens of proof. It would be nearly impossible to prove the loss of an employee's objectivity or to assign a motivation of his exercise of discretion. If public credibility in government institutions is to be fostered, constraints which are conductive to reasoned, impartial performance of public functions are necessary, and it is in this context that Section 3 operates.
It is clear that the incentive award which you have proposed is something of substantial value under § 3. Compare Commonwealth v. Famigletti, 4 Mass App. 584 (1976) ($50 is something of substantial value under § 3(b)). Further, the award would be given to the state employee "for or because of" his or her official acts as a state employee, i.e., performance of his or her normal duties. The fact that the recipient would be chosen by his or her peers does not alter this. Accordingly, it would be a violation of § 3 for you to offer and for a state employee to accept such an award. This result is consistent with previous Commission opinions.[2]
The desire to recognize high quality employee performance can be satisfied in a number of ways that would not violate § 3. For example. the Commission has concluded that receipt by a state employee of a "man of the year award" and accompanying plaque is permissible. EC-COI-81-9. It has also concluded that a state employee's request that a stipend intended for him be donated to a non-profit organization designated by him does not violate § 3. EC-COI-83-75.
On the basis of the foregoing, your proposed incentive award, insofar as it involves state employees, is not permissible under G.L. c. 268A, §§ 3(a) and (b).
End Of Decision
