Section 23(b)(2) Improper Use of Public Position
Section 23(b)(2) provides that a public employee may not knowingly, or with reason to know, use his official position to secure unwarranted privileges or exemptions of substantial value for himself or others. Under section 23(b)(2), the Commission has consistently prohibited public employees from using their titles, public time and public resources to promote private interests.
Section 23(b)(2) provides that a public employee may not use his official position to secure unwarranted privileges or exemptions of substantial value for himself or others. This prohibition has been applied by the Commission to restrict a number of political activities involving, for example, campaign use of public resources, campaigning on the job, and certain types of solicitation and fundraising.
Pursuant to section 23(b)(2), public employees may not use any public resources or facilities in conducting political campaigns. Public resources include such things as stationery, office supplies, utilities, telephones, and office equipment that may be available to public employees as a result of their positions. Public employees may not use public office space or other public facilities for political campaign purposes. In addition, public employees are prohibited from engaging in any campaign activities during their normal working hours.
Additionally, public employees may not solicit campaign contributions, services or anything else of substantial value from other employees whom they supervise, vendors they oversee or anyone over whom they have regulatory power. Such activities are prohibited generally because of the inherently coercive nature of such solicitations.
Section 23(b)(3) Appearances of a Conflict of Interest
Section 23(b)(3) prohibits a public employee from knowingly, or with reason to know, engaging in conduct which would cause a reasonable person to conclude that any person or entity can improperly influence the employee 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.
For example, issues may arise under this section if a matter involving a non-immediate family relative, a close friend or business associate, or a civic organization in which a public employee is a member comes before the public employee in his official capacity, even if the public employee is not otherwise required to abstain under G.L. c. 268A, sections 6, 13 or 19. The public employee's private relationship with such an individual or organization creates an impression that he could be biased in his official actions as a result of the private relationship.
Under section 23(b)(3), a public employee has two choices: (1) he may abstain from participating in the matter or, (2) after first filing a full written disclosure with his appointing authority, he may participate, assuming he is able to be impartial.
The purpose of filing a disclosure prior to participation in a matter is to dispel the appearance of a conflict. The public employee should include in his disclosure all the facts that would make a reasonable person perceive that he has a conflict. The public employee also may include any facts that would show why his judgment would not be affected by the apparent conflict. Such disclosures are public records.
If, after making the required written disclosure, a public employee does participate in a matter in which there is the appearance of a conflict, he should take care under section 23 to base any decisions in the matter on the merits, using objective standards and following all requisite procedures. If the public employee is unable to judge the matter impartially, then he should abstain.
Solicitation and Private Business Relationships Under Section 23(b)(2) and 23(b)(3)
The Commission has recognized that an inherently exploitable situation is created whenever a public employee solicits or enters into a private business relationship with an individual or entity whom the employee regulates, supervises or oversees. The Commission has, under section 23(b)(2), prohibited public employees from making such solicitations.
In EC-COI-92-7, the Commission stated that a public employee may only enter into a private business relationship with an individual or entity under the public employee's jurisdiction if it: (1) is initiated by the person under the public employee's jurisdiction; (2) the relationship is entirely voluntary; and (3) the public employee makes a full written disclosure pursuant to section 23(b)(3) indicating that these three requirements were met.
Section 23(c) Use of Confidential Information
Section 23(c) prohibits a current or former public employee from accepting other employment or engaging in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority and from improperly disclosing such confidential materials or using such information to further his private interests. See EC-COI-83-154; 84-9.