| Date: | 05/28/1985 |
|---|---|
| Organization: | State Ethics Commission |
The head of state agency ABC, whose members hear and adjudicate cases, is prohibited from accepting a discount mortgage from a long-time attorney acquaintance who practices regularly before the ABC. Although they have known each other many years, they have no history of a significant business or social relationship sufficient to rebut a presumption that the discount, was altered because of the agency head's official duties.
You are the head of state agency ABC, whose members hear and adjudicate cases. As ABC head you direct and supervise the activities of all members of ABC. You have the authority to assign cases and to assign members to review appeals from decisions, although you state that in practice the clerical staff actually makes the assignments.
In your private capacity you are seeking to purchase some property and, to this end, you have been investigating various mortgages. Recently you spoke with a long-time acquaintance who is an attorney who practices before ABC on a regular basis and who is also in the mortgage business. He has offered you a thirty-year mortgage at an interest rate which is at least one-half of a percentage point lower than any bank or financial institution has offered. You have had no significant prior business relationship with this person, nor any close social relationship. Your personal relationship with this attorney arises primarily from the fact that you both grew up and continue to live in the same community.
Would G.L. c. 268A permit you to obtain a mortgage at a discount rate from this attorney?
No.
As the head of ABC you are a state employee and, therefore, subject to the provisions of G.L. c. 268A, the conflict of interest law. The section of that law relevant to the question you have asked is § 3(b). It provides in relevant part that no state employee shall accept, receive or agree to receive anything of substantial value for himself for or because of any official act or act within his official responsibility performed or to be performed by him. A public employee need not be impelled to wrongdoing as a result of receiving an item of substantial value. "The Commission has held in the past that ...[The item of substantial value] may simply be a token of gratitude for a job well done, or an attempt to foster goodwill. All that is required to bring § 3 into play is a nexus between the motivation for the gift and the employee's public duties. If this connection exists, the gift is prohibited." In the Matter of George A. Michael, 1981 State Ethics Commission 59, 68.
The first issue to be determined is whether the item being offered to you is one of substantial value. In the past, the Commission has used a figure of fifty dollars as a gauge for determining substantial value. In utilizing this figure the Commission has relied on Commonwealth v. Famigletti, 4 Mass. App. 584 (1976), in which the court held that fifty dollars was substantial value within the meaning of the statute. It is clear that a savings of half of an interest percentage point on a thirty-year mortgage of even one thousand dollars would exceed fifty dollars. Thus, the item you are being offered is of substantial value for purposes of § 3.
The second requirement for establishing a § 3(b) violation is that the item of value must be given for any "official act performed or to be performed." Section 3(b) is broad enough to include not only pending matters before an official but also prior and future acts of the official. This construction of § 3(b) is consistent with the federal courts' analyses of its federal counterpart, 18 U.S.C. §§ 20(f) and (g). See United States v. Standefer, 452 F. Supp. 1178 (W.D. P. 1978), aff'd on other grounds, 447 U.S. 10 (1980); United States V. Irwin, 354 F. 2d. 192, 196 (2d Cir. 1965). You have stated that it would be possible for you to screen yourself from ABC matters in which the attorney making the mortgage represents a party. This would not be sufficient however because you are the chief administrative and executive officer of the ABC and, as such, have official statutory responsibility for the activities of the ABC. The fact that you would be in a position to use your authority in a matter which could affect the giver is sufficient for purposes of § 3(b). Although evidence of a prior close business or social relationship of long standing might be sufficient to rebut an inference that a § 3(b) situation is occurring, it does not appear from the information you have given us that there is a sufficiently close relationship between you and the attorney here. Because you have had no previous business dealings with the attorney prior to your appointment to the ABC, there is a reasonable inference that the availability of the discounted mortgage is for or because of acts within your official responsibility, rather than because of any prior acquaintance. Thus your acceptance of a mortgage at a discount rate from him would be prohibited by § 3(b).[1]
End Of Decision
