Opinion  EC-COI-84-80

Date:	07/17/1984
Organization:	State Ethics Commission

Public agency employees may be allowed to accept a discount of nominal value from a sandwich shop that leases space in the public agency building.

Facts

You are an employee of municipal agency ABC (ABC) which leases part of its central office building to DEF, a sandwich shop which is patronized by ABC employees.  The sandwich shop intends to raise its prices, but when it does so it will offer a ten percent discount to all the employees of several neighboring public and private employers.  The discount will be given when an employee from the area displays an employer identification card.

Question

Does G.L. c. 268A permit ABC employees to accept the ten percent discount from DEF?

Answer

1.  Those few ABC employees who are directly involved in negotiating and monitoring the ABC lease with DEF may accept the discount, subject to certain limitations.

 

2.  Those ABC employees who are not directly involved in the negotiating and monitoring of the ABC lease with DEF may accept the discount without limitation.

Discussion

1.  Whenever government employees accept discounts and other privileges from private entities over whom they have official dealings as government employee, concerns are raised under both sections 3[1] and 23[2] of G.L. c. 268A over the credibility and impartiality of their decisions as government employees.  See, In the Matter of George A. Michael, 1981 Ethics Commission 59; In the Matter of Victor Peters, 1981 Ethics Commission iv; EC-COI-83-122; 82-160. The propriety of accepting the relatively modest discount from the sandwich shop must therefore be examined in light of these standards.

G.L. c. 268A does not define what constitutes "substantial value" for the purposes of §3 but rather leaves that determination for case-by-case consideration.[3]  Prior Commission rulings have held a wide range of items-to be of substantial value (from a two million dollar bank loan, In the Matter of Rocco J. Antonelli, 1982 Ethics Commission 101, to a $100 discount, In the Matter of George Michael, supra, a $290 stipend EC-COI-83-75, and a clock radio EC-COI-82-160).  However, the ten percent sandwich discounts from DEF would be considered only of nominal value and therefore not encompassed within the §3 prohibition.  Moreover, the discount would not be related to the performance of official duties by ABC employees who are involved in the lease with the shop.  The availability of the discount to several thousand other public and private sector employees diminishes the likelihood that the discount is for or because of any official ABC act.

Although the discount receipt would not violate §3, potential problems are raised under §23 because ABC employees who have received discounts might give reasonable basis for the impression that their review and monitoring of the shop's lease and the decision to renew the lease might be unduly influenced by the discounts.  While the relatively small size of the sandwich discount would not inherently create the impression of undue favoritism so as to prohibit outright the receipt of the discount, those few ABC employees who are directly involved in the shop lease should establish reasonable safeguards to avoid creating an improper impression.  Those safeguards could range from voluntarily refraining from accepting the discount or taking advantage of it only occasionally to disclosing their situation to their appointing official and receiving written permission to continue their ABC involvement with the sandwich shop.  The permission could be drafted pursuant to standards contained in G.L. c. 268A, §19 in which employees may be permitted to participate where "the [financial] interest is not so substantial as o be deemed likely to affect the integrity of the services which the municipality may expect from the employee."

2.  The concerns described above arise only where the discount could potentially affect the performance of duties by ABC employees.  For the remaining ABC employees whose responsibilities do not include the sandwich shop lease, the potential problems raised by §3 and §23 do not apply.  While it is true that ABC employees would be receiving the discount because of their status as ABC employees, the discount would not be an "unwarranted privilege or exemption" because the same discount is being offered to a large number of private and public sector employees in the area.  Compare, In the Matter of George Michael, supra, EC-COI-82-17.[4]

[1] In relevant part G.L. c. 268A, §3(b) prohibits public employees from accepting anything of substantial value for or because of their official acts.

 

[2] Section 23 ¶2(3) prohibits public employees from by their-conduct giving reasonable basis for the impression that any person can improperly influence or unduly enjoy their favor in the performance of their official duties, or that they are unduly influenced by the kinship, rank, position or influence of any party or person.

 

[3] See, Final Report of the Special Commission on Code of Ethics, 1962 House Doc. No. 3650 at 11 upon which the provisions of §3 were based.  ("Significant in these subsections is the provision that the thing given must be of 'substantial value.'  The Commission concluded that this was a standard to be dealt with by judicial interpretation in relation to the facts of the particular case, and that it was more desirable than the imposition of a fixed valuation formula.")

 

[4] This result would continue to apply as long as the discount remains at ten percent and is offered uniformly to a large number of eligible public and private employers in the area.  Should the facts change and a larger discount be made available solely to ABC employees, you should renew your advisory opinion request for a determination of whether the Commission's conclusion under §§3 and 23 would be different.