The state's conflict of interest law, G. L. c. 268A, restricts gifts and gratuities given to Massachusetts public employees. Section 3(a) prohibits anyone from offering to a public employee anything of substantial value which is given for or because of an official act or an act within the public employee’s official responsibility, whether the gift is given as an incentive to perform such an act or as a reward for having performed such an act. Here, the phrase "public employee" includes all Massachusetts state, county and municipal officials and employees, whether part-time or full-time, paid or unpaid, elected or appointed. (Similarly, these public officials and employees are prohibited by G.L. c. 268A, § 3(b) from requesting, agreeing to receive or accepting such gifts.)
Section 23(b)(2)(i) of the conflict of interest law prohibits public employees to accept a gift of substantial value received for or because of the public employee’s official position unless the gift is authorized by statute or regulation. Giving such a gift to a public employee will create a problem for the public employee. For example, an inspector who works for a state agency may not accept a gift worth $50 or more if she is receiving it because she is an inspector. If you give a public employee a gift worth less than $50, the public employee may have to file a disclosure.
The financial disclosure law, G. L. c. 268B, § 6 specifically prohibits lobbyists from giving gifts to certain public employees. Executive agents and legislative agents may not offer or give gifts of any kind to certain elected public officials or public employees in major policymaking positions or members of their immediate families, with certain exceptions regarding gifts given because of a family relationship or personal friendship.
Public employees may accept specific types of gifts, either because they are not prohibited by the conflict of interest law or because an exemption from G.L. c. 268A, § 3 and § 23 or G.L. c. 268B, § 6 makes it possible to accept them. For information about gifts which public employees may receive, see our Primer on Receiving Gifts and Gratuities.
What are gifts and gratuities?
G.L. c. 268A does not define the terms gift and gratuity; instead, the law prohibits "anything of substantial value." Gifts may include honoraria and any free or discounted items or services, such as meals, entertainment event tickets, golf and travel expenses, for which payment is normally required.
Anything given to a public employee is an unlawful gift or gratuity if it is: (a) of substantial value and (b) offered for or because of a public employee’s official act, or (c) given for or because of a public employee’s official position.
What is substantial value?
Anything worth $50 or more is considered to be "of substantial value" for purposes of the conflict law. To determine substantial value, the Commission may consider, for example, the cost per person of entertainment hosted by the giver, the purchase price of an item for the public or the actual cost incurred by the giver in acquiring the gift given to the public employee. In some situations, the value of a gift will not be its retail price. The giver may have paid more, for example, than the face price of a ticket. Similarly, the value of a two-year old computer is likely to be significantly less than its cost while the value of an item purchased many years ago that has become a collector's item may be significantly greater than its cost. Finally, some items, e.g. ordinary and customary plaques or similar items honoring a public employee's dedication or outstanding service, may, due to the inscription honoring the employee, have little intrinsic value once so inscribed.
There are also other special cases that public employees should keep in mind. For example, where the gift is a meal, the value of the meal will include the tax and gratuity paid as well as the retail (menu) price of the meal itself. In addition, where a gift is given to the public official and a person accompanying the official, such as a spouse, family member or guest, the value of the official's companion is included towards the $50 "substantial value" threshold. Finally, under some circumstances, the Commission will consider a group or series of gifts, individually less than $50 in value but adding up to $50 or more, to be in aggregate a gift of substantial value for G.L. c. 268A purposes. For example, a meal and an entertainment event ticket, each valued at less than $50, together could be valued at more than $50. For more information and examples about how value is determined, see 930 CMR 5.05.
What is an "official act?"
The term "official act" is defined as "any decision or action in a particular matter or in the enactment of legislation." Official acts would include, for example, voting on a matter before a governmental body, preparing a Request For Proposals or RFP for a public agency, serving on a hiring committee or making a policy recommendation to one's supervisor.
What makes a gift of substantial value unlawful?
The Supreme Judicial Court has stated that there must be a "link" between a gift and a particular official act. Gifts offered and accepted solely as a gesture of goodwill would not violate § 3 (although the acceptance of such gifts raises issues under § 23 for the public official). In general, therefore, a gift offered as a reward for an official act that a public employee has taken or will take, or to influence or induce any such official act will be considered to be for or because of the official act. Whether a gift is given for or because of an official act depends on the giver's intent as determined by the circumstances surrounding the gift. Such circumstances could include the identities or relationship of the giver and the recipient, the giver's and recipient's expressed intents, the timing of the gift, whether the recipient has acted or will act on matters affecting the giver, and the effect, if any, of the gift on the employee's official acts. Other factors may include whether the gift is "repeated, planned and targeted," whether it is a business expense, whether a personal friendship or reciprocity exists, the nature, amount and quality of the gift or the location of the entertainment and the sophistication of the parties. In conclusion, the Commission will look at all of the circumstances surrounding the gift.
Gifts from executive agents and legislative agents
Lobbyists are subject to specific restrictions on giving gifts. Executive agents and legislative agents, as defined in G.L. c. 3, § 39, may not offer or give gifts of any kind or nature to an elected public official who is nominated at a state primary or chosen at a state election. They also may not give any gifts to a state or county employee in a major policymaking position. Finally, they may not give any gifts to members of the immediate family member of such a public official or public employee. In G.L. c. 268B, a gift is defined as a payment, entertainment, subscription, advance, services or anything of value, unless consideration of equal or greater value is received. The definition excludes a reported political contribution, a commercially reasonable loan, and an inheritance or gifts from certain family members.
Also, a lobbyist may give specific types of gifts if they are given solely because of a family relationship or established personal friendship. These gifts include meals in the giver’s home, gifts on occasions of religious significance, such as a confirmation or bar mitzvah, and gifts on occasions of personal significance, such as a wedding, engagement, the birth or adoption of a child, or the illness or death of relative, but not a birthday. The lobbyist must purchase the gift with personal funds, and not with funds belonging to the lobbyist’s employer, client or institution, and the public official or employee must reasonably believe that only the lobbyist’s personal funds were used.
In addition, a lobbyist who is an immediate family member or other relative, an intended spouse, or a member of the household may give a gift to a public official or public employee so long as the lobbyist purchases the gift with personal funds and the gift is given and received solely because of the family or comparable relationship. Such a lobbyist also may leave an inheritance to a public official or public employee.
(Note: Gifts that violate G.L. c. 268B, § 6 are also prohibited by G.L. c. 3, § 43, which applies to executive agents and legislative agents. For more information regarding the application of G.L. c. 3, § 43, public employees should contact the Lobbyist Division of the Secretary of the Commonwealth.)
Conclusion
The conflict of interest law's gift and gratuity provisions prohibit anyone from giving anything of substantial value to influence or induce a public employee to take an official act or to thank him or her for taking an official act. Gifts of substantial value to any public employee -- whether paid or unpaid, elected or appointed -- are not expected or required in order to do business with the government. Where receipt of a gift is not prohibited, there are instances where the conflict of interest law may require a public employee to make a public disclosure regarding the gift.
Please contact the Ethics Commission's Legal Division at (617) 371-9500 for advice.