Opinion

Opinion EC-COI-86-17

Date: 07/29/1986
Organization: State Ethics Commission

A government transportation agency is prohibited under § 23(b)(2) from providing free passes for transportation services to agency board members, spouses of board members, three surviving spouses of former agency heads, county finance advisory board members, agency employees and their spouses, retired agency employees and their spouses, and to two legislative liaisons employed by the General Court, if used for non-job-related purposes.

Table of Contents

Facts

You are an employee of government transportation agency ABC. You are seeking an advisory opinion under G.L. c. 268A relating to the propriety of the ABC's free pass policy. Under the current policy, ABC provides free, unlimited passes to the ABC members and their spouses, and the three surviving spouses of former agency heads and county finance advisory board members. Additionally, free, unlimited annual passes are provided to all current permanent ABC employees and their spouses, to all retired ABC employees and their spouses, and to two employees of the General Court. Approximately thirteen lifetime passenger passes are also in circulation, although you are uncertain who possesses them or whether they are currently in use.

The passes are valid for both job-related and personal use and contain no limit on the frequency of usage.

Question

Does G.L. c. 268A permit the continuation of the ABC's current free pass distribution policy?

Answer

The distribution of annual passes to ABC members, their spouses, the surviving spouses of former ABC and county finance advisory board members, and retired ABC employees is not permissible. Granting annual passenger passes to current ABC employees or their spouses is permissible if part of a negotiated or authorized compensation package.

Discussion

1. ABC Members

ABC members are subject to G.L. c. 268A, § 23(b)(2), which prohibits the knowing use or attempted use of their official positions to secure for themselves or others unwarranted privileges or exemptions of substantial value and which are not properly available to similarly situated individuals. The Commission concludes that ABC members would violate § 23(b)(2) by continuing to authorize the distribution to themselves of free annual passes unless the passes are restricted to use for job-related purposes.

By authorizing the free passes on an annual basis, ABC members are using their official positions to secure a privilege for themselves. The privilege is of "substantial value" because the passes can be used on an unlimited basis and would potentially exceed $50 in any calendar year. See, {Commission Advisory No. 8} (1985); Commonwealth v. Famigletti, 4 Mass. App. 584 (1976). The distribution of a free annual pass which is usable for personal, non-job-related purposes grants an unwarranted privilege because the free passage is not properly available to other members of the public. Moreover, the pass cannot be characterized as part of the members' compensation package because the ABC's enabling statute expressly prohibits members from receiving compensation and limits their reimbursement to those expenses necessarily incurred in the performance of official duties. Therefore, ABC members may not authorize for themselves or their spouses a free pass distribution which permits personal, non-job-related travel.[1]

2. ABC Employees

The Commission concludes that the continuation of the free pass policy for ABC employees would not violate § 23(b)(2).

While ABC members may not grant unauthorized privileges of substantial value to themselves or others, the free pass would not constitute an unwarranted privilege for ABC employees. The pass may be characterized reasonably as part of an employee's compensation package and a term of employment. Under its enabling statute, the ABC is empowered to establish the compensation and benefit levels for its employees. The granting of a free pass to its employees as part of a negotiated press is a permissible exercise of this agency. This conclusion also recognizes that public officials possess substantial flexibility in making personnel and benefit package decisions, and that those decisions will not customarily be "second guessed". See, EC-COI-85-71. Therefore, as long as the ABC retains the discretion to determine the compensation package for its employees the distribution of a free pass would not constitute the granting of an unwarranted privilege to its employees.

In order for the distribution of free passes to be reasonably deemed part of a compensation package, certain steps are necessary. In the case of ABC employees who are represented by an employee organization, the ABC must incorporate the availability of a free pass into collective bargaining negotiations and agreements. With respect to ABC employees who are not represented by an employee organization, the ABC must authorize the availability of a free pass as part of the employee's compensation package. Such agreements or authorization could also reasonably extend to the spouses of ABC employees.

3. Retirees

The distribution of free passes to certain retired ABC employees ABC members violates § 23(b)(2) because the free pass is an unwarranted privilege not properly available to other members of the public. Unlike benefits to current employees, the benefit package for retired ABC employees is not negotiated by the ABC; the ABC's role is limited to determining the size of its contribution to an employee organization's health and welfare plan. The inclusion of a free pass cannot therefore be regarded as a reasonable extension of a former employee's negotiated compensation package.
                                                       
4. Legislative Liaisons

The continuation of a free passenger policy to the two legislative employees would not violate § 23(b)(2) because the free passage would not constitute an unwarranted privilege. The legislative liaisons are entitled to reimbursement from the commonwealth for any travel expenses incurred in the performance of their official duties. Inasmuch as they would be entitled to free passage from the commonwealth in any event, the fact that the ABC, rather than the General Court, bears the burden of the expense does not grant an unwarranted privilege to them, within the meaning of § 23(b)(2).[2]

5. Lifetime Passes

The continued recognition of free lifetime passes grants to the user an unwarranted privilege of substantial value. To comply with § 23(b)(2), the ABC must rescind the lifetime passes and instruct its employees that such passes are invalid. In lieu of such passes, the ABC may provide free passage to guests provided that the aggregate value of such passage does not exceed $50 in any calendar year.[3]


End Of Decision

[1] To the extent that ABC members are conducting ABC business or traveling in connection with such activity, use of free passes is, of course, permissible.

[2] It is not clear whether the legislative liaisons also use the pass for personal, non-job-related purposes. To the extent that passage is sought for personal purposes, the aggregate value of any individual tickets distributed to each of the liaisons may not exceed $50 in any calendar year.

[3] The purpose of this opinion is to provide guidance to ABC members over the standard to be applied in adopting a future pass distribution policy. This opinion does not constitute a ruling concerning the past activities of ABC members or employees under this or other sections of G.L. c. 268A.

[4] To avoid confusion in the implementation of this opinion, the Commission will defer enforcement of the conditions concerning current employees until the completion of the 1986 session. This will allow time to modify existing collective bargaining or employment agreements. The other terms of this opinion must, however, be observed immediately.

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