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Opinion

Opinion EC-COI-89-23

Date: 07/19/1989
Organization: State Ethics Commission

A state agency may accept a gift of a demonstration model software package worth more than $100 from a private software company because the gift is being made to the agency rather than to one or more employee for his or her personal use.  However, employees at the agency may not grant any unwarranted privileges or special consideration to the private company because of the gift to the agency.

Facts

You are a director of a special office within a state agency (ABC):  A private software company (XYZ), recently presented a seminar to ABC employees arranged by a supervisor within your office.  At the conclusion of the seminar an XYZ representative presented this supervisor with a demonstration model software package for use by your office.  The package, which you estimate to be worth in excess of $100, contains a program and manual for statistical analysis which you believe would be useful to your office and compatible with your current system.

XYZ is not generally a software vendor to ABC but is interested in becoming a ABC vendor in the future.

Question

Does G.L. c. 268A permit you to accept XYZ's software gift to your agency?

Answer

Yes, subject to certain limitations.

Discussion

ABC is a state agency for G.L. c. 268A purposes, G.L. c. 14, s.1, and its members and employees are state employees within the meaning of G.L. c. 268A, s.1(q). Two sections of G.L. c. 268A are relevant to your inquiry.

1. Section 3(b)

Under this section, no state employee may accept for himself anything of substantial value given for or because of any official act performed or to be performed by the employee. While XYZ's offer of consulting services to ABC would constitute something of substantial value, Commonwealth v. Famigletti, 4 Mass. App. Ct. (1976), the acceptance of the offer will not violate s.3(b) because the offer will be accepted for use by the agency, rather than for the personal use of an employee. This conclusion is consistent with EC-COI-89-3, in which the Commission recently advised another state agency that it could accept a gift of services from a current vendor. See also, EC-COI-84-114 (a gift of artwork donated for permanent exhibition in a government agency and not for the personal use of any employee does not violate

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s.3); EC-COI-87-23 (no violation where state employee insulates himself from any personal benefit attributable to a gift received for or because of acts performed as a state employee). While s.3 might be applied differently where a gift to a government agency also confers a personal benefit to an individual employee (such as the donation of telephones for use in an employee's personal vehicle), the XYZ offer appears to confer a benefit solely upon ABC rather than upon any employee personally.

2. Section 23

Under this section, a state employee may not use his official position to secure unwarranted privileges of substantial value for himself or others. Issues under this section may arise for you and other ABC employees in connection with your evaluation of any prospective contract application from XYZ. In evaluating the application, you may not grant to XYZ any unwarranted treatment and must keep independent the fact that XYZ has provided a free software package. As long as ABC employees evaluate the application under the same objective standards by which it considers other contract applications, they will not violate s.23(b)(2).[1]

[1] This opinion is limited to the application of G.L. c. 268A and is not intended to constitute a review of the application of your agency's internal code of conduct to the facts which you have presented.

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