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Opinion

Opinion EC-COI-93-23

Date: 12/07/1993
Organization: State Ethics Commission

A municipal agency may enforce, as personnel policy, ethics standards that are more stringent than 268A. 

Facts

You are the Director of Maintenance for the Brockton Housing Authority. The Authority owns and manages seventeen public housing developments in Brockton. Most of the developments have a full time maintenance staff assigned for the care and upkeep of the buildings. This staff maintains housing authority property in such areas as heating, plumbing, and grounds. Housing Authority tenants, under their leases, are responsible for the installation and repair of personal property inside of their apartments, such as the installation of air conditioners and fans, interior painting, and washing windows.

You have been informed that Housing Authority tenants have solicited Authority employees to perform private repair and maintenance work on behalf of the tenants. Authority employees may have also solicited such private work from the tenants who live in developments which the employees maintain as part of their official duties. Employees have entered into private business arrangements with tenants, have performed the work outside of normal working hours and have been compensated by the tenants for the services.

Upon the advice of the Housing Authority legal counsel, you have instituted a written policy forbidding Housing Authority employees from accepting anything of value from tenants for maintenance work, and from maintaining or repairing a tenant's personal property. The policy states: 

Employees are prohibited from soliciting or accepting payment of money, gratuities, gifts, or anything of value from residents for work done in the resident's apartment. This is true whether the work is accomplished on your own time or company time. Employees are prohibited from installing, removing, diagnosing, repairing, or maintaining the private personal property of residents, at any time. 

In promulgating this policy, you have relied on G.L. c. 268A, s. 3 and s. 23. You have articulated several reasons why you have issued this policy. You believe that a unique superior/subordinate relationship exists between Housing Authority maintenance employees and tenants, particularly in elderly housing developments, as the relationship is supervisory in nature. Maintenance employees are usually the only Housing Authority personnel on-site and are called upon by tenants to initially respond to various issues, such as a disruptive tenant. In eviction cases, the housing authority maintenance person may be the initial witness. There are also issues concerning access to tenant's apartments, possible coercion of tenants, and unfair competition. You also indicate that tenants have contacted the Housing Authority office in order to obtain private work from Housing Authority employees or to make complaints regarding dissatisfaction with some private work that was done in an apartment. In your view, this practice involves the use of official resources to facilitate private business dealings.

Question

May the Housing Authority impose standards governing Housing Authority employees' private business arrangements with Housing Authority tenants which are consistent with the purposes of G.L. c. 268A but which are more stringent than G.L. c. 268A?

Answer

Yes.

Discussion

Housing Authority maintenance employees are municipal employees for purposes of G.L. c. 268A. G.L. c. 268A, s. 1(g); see also, G.L. c. 121B, s. 7 (housing authority shall be considered a municipal agency for purposes of c. 268A). As municipal employees, they are subject to G.L. c. 268A, s. 23(b)(2), which prohibits a municipal employee from using his official position to obtain unwarranted privileges of substantial value [1] for himself or others which are not available to similarly situated individuals.

The Commission has consistently interpreted s. 23(b)(2) to prohibit public employees from soliciting private business relationships from individuals over whom the public employee has authority or a regulatory relationship. See e.g., EC-COI-93-6 (police officers prohibited from using position to solicit from private citizens); 92-7 (legislator prohibited from soliciting his aide for campaign activities); 84-61; 84-

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56; 83-156; 82-64 (agency employee prohibited from soliciting from clients and their families on behalf of private business); 81-66. Our concern in each of these opinions has been the "inherently exploitative" or "inherently coercive" nature of the relationship. See EC-COI-92-7. Any attempted private solicitation by a public employee from individuals "who may be directly and significantly affected by the authority of a [municipal] employee at a given time . . . exploits an inherent pressure on those individuals, resulting from that authority." EC-COI-84-61; 83-43; see also EC-COI-83-156 ("s. 23 prohibits commercial arrangements involving inherent exploitation by state employee of individual with whom employee has acquired a relationship which turns on trust or reliance in carrying out his state responsibilities"). A public employee, who receives a private gain as a result of a business relationship with one whom he oversees, "capitalizes" upon his public position over the private individual. EC-COI-82- 64; see also EC-COI-93-6 (privilege obtained by police officer "special consideration from potential donors that police officers are able to obtain for private purposes by exploiting their official powers"). In these circumstances, one may never know whether the private party is objectively responding to the solicitation or whether his decision is influenced by a pressure to maintain good relationships with the public employee, or whether any official dealings are affected by the private dealing. See EC-COI-83-156; 82-64.

Additionally, this Commission has consistently interpreted G.L. c. 268A, s. 23(b)(2) to forbid the use of official resources, such as municipal telephones, copying machines, secretarial services, or facilities to promote or assist a private business enterprise. See e.g., EC-COI-93-6; Public Enforcement Letter 92-3 ("public resources may only be allocated for public business, and may not be utilized to address individual concerns of public employees"); Commission Advisory No. 4 (Political Activity) (1992) (public resources "are intended for the conduct of public business, not for advancing the personal, private or political interests of public employees").

The concerns underlying the solicitation of individuals with whom a public employee has an official relationship are not completely alleviated if the private individual, rather than the public employee, is the solicitor. In this situation, an appearance of impropriety exists, as issues are raised concerning whether the public employee's impartiality will be affected in his official dealings with the private individual and whether the private individual feels compelled to request or use a public employee's private business in order to maintain good will. See EC-COI-92-7; In re Garvey, 1990 SEC 478, 479-80. Section 23(b)(3) prohibits a municipal employee from engaging in conduct which gives a reasonable basis for the impression that any person or entity can improperly influence him or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, or position of any person. The Commission has required that, if a public employee is solicited to enter a private enterprise by a private individual with whom he has official dealings, the public employee must make a full written public disclosure to his appointing authority. See EC-COI-92-7; In re Garvey, 1990 SEC 478; In re Keverian, 1990 SEC 460. This disclosure must specifically state facts which clearly show that the relationship is entirely voluntary and that it was initiated by the person under the supervisory employee's jurisdiction. EC-COI-92-7.

Irrespective of who initiated the solicitation, such relationships also raise issues under G.L. c. 268A, s. 3, particularly if any payment to a public employee for private services is not proportional to the services rendered. G.L. c. 268A, s. 3(b) prohibits a public employee from directly or indirectly soliciting, accepting, or agreeing to accept 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. Section 3(a) places a corresponding prohibition on anyone who offers or gives something of substantial value to a public employee for or because of any official act or act within the employee's official responsibility.

For purposes of s. 3 the nexus is met even if a donor gives an item of substantial value to engender good will from a public employee, or to thank a public employee for a "job well done." EC-COI-93-8; In re Massachusetts Candy and Tobacco Distributors, Inc., 1992 SEC 609; In re State Street Bank, 1992 SEC 582; In re Stone and Webster Engineering Corporation, 1991 SEC 522, 523, n.1. Accordingly, in evaluating whether s. 3 is implicated in a private compensated business relationship between a public employee and an individual with whom the public employee has official dealings, the Commission may consider whether any fee received by the public employee is commensurate with the services rendered and whether the relationship falls within the ordinary and usual course of commercial business dealings.

 Housing Authority Conduct Policy

You question whether an agency may promulgate standards of conduct to be followed by its employees which are stricter than c. 268A. The Housing Authority Conduct Policy is stricter than c. 268A as it prohibits private business relationships between 

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housing authority employees and tenants, regardless of who initiates the relationship. For the following reasons, we conclude that an agency may institute stricter standards than c. 268A imposes.

In G.L. c. 268A, s. 23(e), the Legislature provided that "where a current employee is found to have violated the provisions of [s. 23], appropriate administrative action as is warranted may also be taken by the appropriate constitutional officer, or by the head of a state, county, or municipal agency. Nothing in this section shall preclude any such constitutional officer or head of such agency from establishing and enforcing additional standards of conduct." Accordingly, the Housing Authority Board may institute and enforce standards of conduct for its employees, in addition to the provisions of G.L. c. 268A.

The Commission, absent special circumstances, will defer to an agency code of conduct which "gives guidance to its employees in the area of conflict of interest and which is consistent with the principles and aims of s. 23." EC-COI-85-12; 80-51. The Housing Authority Conduct policy which you have implemented is consistent with G.L. c. 268A, s. 23 and is based upon the same concerns which this Commission has articulated in its longstanding precedent under s. 23. In particular, your policy addresses the problems of the use of official resources to assist private business activities and the "inherent exploitation" when a public employee enters a private business arrangement for compensation with a private individual who relies on and is directly affected by that public employee's performance of his official duties. This Commission will defer to the Housing Authority's policy. 

 [1] The Commission has defined substantial value to be $50 or more. See EC-COI-93-14; Commonwealth v. Famigletti, 4 Mass. App. Ct. 584, 587 (1976). The Commission will also aggregate amounts which are given or solicited for a common purpose in calculating substantial value. See EC-COI-93-6, n.4; 92-23; 92-2.

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