| Date: | 11/08/1984 |
|---|---|
| Organization: | State Ethics Commission |
The Secretary for the Executive Office of Public Safety is permitted, subject to the restrictions contained within § 23 of the conflict of interest law, to solicit contributions from private entities to fund a Governor’s initiative to eliminate drug and alcohol use in school districts.
You are the Secretary of the Executive Office of Public Safety (EOPS). The Governor is planning to initiate a major state-wide campaign to bring public attention to the problem of the use and sale of drugs and alcohol in the state's high schools and junior high schools and to encourage local school departments to focus attention on and develop programs to help eliminate the problem. The EOPS and the Governor's Statewide Anti-Crime Council staff have to date been the primary coordinators of the efforts to develop this program, which is expected to be similar in scope to the Governor's anti-drunk driving campaign.
To help fund this campaign, contributions will be sought from private sources. Such contributions would be used to hire a state-wide program coordinator; produce public service television and radio ads, posters, brochures; and to develop educational materials for teacher training and distribution to students.
Does G.L. c. 268A permit you, as the EOPS Secretary, to solicit contributions from drug or liquor companies, distributors or private drug and alcohol treatment centers to help fund this effort?
Yes, as described below.
You are a state employee for the purposes of G. L. c. 268A. As a state employee, you are subject to the standards of conduct set forth in § 23 of the conflict of interest law. In relevant part, G.L. c. 268A, § 23(¶ 2) states that no state employee shall:
1. use or attempt to use his official position to secure unwarranted privileges or exemptions
for himself or others; or
2. by his conduct give reasonable basis for the impression that any person can improperly
influence or unduly enjoy his favor in the performance of his official duties... These
standards essentially serve as a general code of ethics and address courses of conduct
raising conflict questions as well as conduct which creates the appearance of conflict.
In light of these standards, the issue raised by your request is whether you would be soliciting contributions from private entities which fall within the regulatory authority of your state office. For example, the Commission has previously held that a member of a state regulatory board may not solicit political contributions in connection with his campaign for local office from businesses subject to the board's regulation. EC-COI-82-61.[1] Such conduct creates the impression that businesses which contribute can improperly influence him in the performance of his official duties. This is true whether or not the solicited businesses have matters pending before the board at the time of the solicitations.
As the Secretary of EOPS, you have the responsibility for conducting comprehensive planning regarding the functions of EOPS and coordinating the activities and programs of the state agencies within EOPS. G.L. c. 6A, § 4. You are also charged with the duty to review and act on budgetary and other financial matters concerning such agencies, and to recommend periodically to the governor any changes you deem desirable in the laws relating to the services, procedures or practices of those agencies. Id. EOPS is responsible for the protection of the public from injury to persons or property arising from criminal acts, negligence, natural or man-made disasters, or civil disturbances, by acting to prevent such acts or events from occurring, and by cooperating with and aiding local and federal agencies in similar activities. More specifically, the Department of Public Safety within EOPS focuses on enforcement issues through its Division of State Police, Criminal Information Bureau and Narcotics Section, and Office of Investigation and Intelligence. See generally G.L. c. 22, § 1 et seq. The agencies within EOPS are not responsible for licensing liquor or drug companies or monitoring the practices of alcohol and drug treatment facilities.[2] In summary, the authority of your office over drug and alcohol companies and treatment facilities does not extend to licensing procedures but does include enforcement matters.
Given the limited authority of your office, as described above, the Commission concludes that you will not violate G.L. c. 268A, § 23(¶ 2)(2) by soliciting contributions from drug and alcohol companies or treatment facilities. Your position as a Secretary of an Executive Office necessitates a certain amount of public relations work. While EOPS' focus is primarily on enforcement matters, crime prevention and accident prevention work are also involved. In that sense, your participation in raising funds for the Governor's prevention of drug and alcohol abuse campaign can reasonably be seen as part of your official duties.[3] Moreover, lending the prestige of your office to the fundraising effort in this case will not inure to the benefit of a private individual, but rather to a state-sponsored project which will serve the public interest. Compare EC-COI-83-82. The "unwarranted privilege" which constitutes a § 23 (¶ 2)(2) violation is therefore absent.
The related question under § 23(¶ 2)(3) revolves around whether your fundraising efforts will give reasonable basis for the impression that contributing companies and facilities can improperly influence you in the performance of your official duties. For example, while your office does not regulate the licensing of such entities, you do have the authority to prioritize the enforcement activities within EOPS. You should therefore avoid giving the impression that contributing companies can influence that discretion in any way. For example, you should not base your enforcement priorities solely on whether a company or industry has contributed to the campaign. Given the remoteness of such an opportunity, the Commission concludes that § 23(¶ 2)(3) does not outright prohibit your proposed solicitation of contributions. Compare, Commission Compliance Letter 82-2, 1982 Ethics Commission 80, 83.
End Of Decision
