The American Probation and Parole Association (APPA) and the New England Conference on Crime and Delinquency (NECCD) are planning to co-host a national conference on parole and probation in Boston on August 26-29, 1984. Both organizations are professional associations and are chartered and incorporated as non-profit organizations. The mutual goals of APPA and NECCD include providing a forum for the exchange of ideas and knowledge in the area of crime and delinquency; stimulating the development of innovative services, research design and program evaluation; and encouraging public awareness activities and community involvement in the prevention of crime and delinquency. You are a member of NECCD and were elected this year as its President, a position which rotates annually and is unpaid. You are also the Commissioner of the Department of Correction.
As the Commissioner of the Department of Correction, does Chapter 268A permit the use of staff and state-owned computers for the purpose of key punching registration information in connection with the APPA and NECCD conference?
Yes, subject to the conditions set forth below.
As the Commissioner of the Department of Correction, you are a state employee within the meaning of G.L. c. 268A, § 1(q) and are therefore subject to the provisions of the conflict of interest law. Section 23(¶ 2)(2) of Chapter 268A prohibits state employees from using their official positions to secure unwarranted privileges for themselves or others.
The § 23(¶2)(2) prohibition has been the focus of numerous prior conflict opinions. The Commission has held that a state employee's use of state offices, state supplies or state time for political activities, such as furthering his own or another's candidacy for public office, would violate that provision. See EC-COI-82-61 and 82-51. Likewise, a state employee cannot use state supplies or state time to prepare or deliver presentations under a consultant contract with a non-state group. See EC-COI-81-184. Both of these situations highlight the factor of private gain involved, which does not appear to be present in your situation.
In EC-COI-81-88, the Commission held that a state senator, who is a member of the board of directors of a non-profit energy research organization, cannot make his office space, telephone and other facilities at the State House available to that organization. The unwarranted privilege would be the organization receiving something not generally available to private interest groups. Id. Inasmuch as a state senator's function is to represent his entire constituency, such a favoring of one interest group would constitute a violation of § 23(¶ 2)(2).
You are similarly an officer of a non-profit organization who would like to make state facilities available to that private group. Unlike the state senator in EC-COI-81-88, however, your job entails work with a specific segment of the population, namely those individuals connected in some way with the corrections process. As the Commissioner of the Department of Correction, you are charged with, inter alia:
- establishing and maintaining programs of research, statistics and planning, and conducting studies relating to correctional programs and responsibilities of the department;
- utilizing, as far as practicable, the services and resources of specialized community agencies and other local community groups in the rehabilitation of offenders, development of programs, recruitment of volunteers and dissemination of information regarding the work and needs of the department; and
- seeking to develop civic interest in the work of the department and educating the public and advising the general court as to the needs and goals of the corrections process. See G.L. c. 124, § 1(k), (1) and (n).
The conference hosted by APPA and NECCD, as described above, furthers these goals. In the Commission's view, state resources may be used for such conferences and other similar activities where such functions are:
- in furtherance of the public interest in general, rather than in pursuit of private gain (either of an individual or a particular private interest group);
- interconnected with the business of that department of state government (e.g., the exchange of ideas and knowledge, the development of programs, and public education as to the needs and goals of the corrections process are among your statutory duties as Commissioner of the Department of Correction);
- not used toward partisan political ends; and
- the state employee's appointing official approves the use of state resources for that purpose.[1]
This last condition is critical. It ensures that a disinterested, accountable public official is making a judgment that there is an appropriate and not "unwarranted" use of state resources. As long as you comply with all of these conditions, the use of state computers and staff to keypunch registration information for the APPA/NECCD conference will not violate the conflict of interest law. Nothing in this opinion, however, precludes application of any other statutes or regulations dealing with the use of state facilities or supplies.
End Of Decision
