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The state's conflict of interest law, G. L. c. 268A, restricts gifts and gratuities that public employees may receive. 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.
With regard to gifts of substantial value – in other words, gifts with a value of $50 or more -- issues may be raised under G.L. c. 268A, § 3 or § 23(b)(2)(i). Section 3(b) prohibits a public employee from requesting or receiving anything of substantial value for or because of an official act or an act within the public employee’s official responsibility, whether the public employee will perform such an act or already has performed it. (Similarly, under § 3(a), no one may give or offer such gifts to public employees.) Section 23(b)(2)(i) prohibits a public employee from soliciting or receiving anything of substantial value for such employee for or because of the employee’s official position unless it is authorized by statute or regulation.
In addition, the financial disclosure law, G. L. c. 268B, § 6 prohibits certain elected public officials and state and county employees in policy-making positions or members of their immediate family to accept gifts of any kind from lobbyists, i.e., executive agents and legislative agents. (Executive agents and legislative agents are likewise prohibited from offering or giving such gifts.) Some exceptions are made for gifts that an executive agent or legislative agent purchases with personal funds so long as they are given because of a family relationship or established friendship.
Public employees may accept specific types of gifts with a value of $50 or more either because the conflict of interest law does not prohibit them or because exemptions to § 3 and § 23 or G.L. c. 268B, § 6 allow public employees to accept them. Rules about gifts that public employees may accept are explained below.
In addition, if a public employee receives a gift worth less than $50, in some instances it is necessary to file a disclosure prior to performing duties relating to the giver.
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 a public employee accepts is an unlawful gift or gratuity if it is: (a) of substantial value and (b) solicited or received for or because of an official act or an act within the public employee’s official responsibility performed or to be performed by the public employee, or (c) solicited or received for or because of the employee’s official position.
Anything worth $50 or more is considered to be "of substantial value" for purposes of the conflict of interest law. To determine substantial value, the Commission may consider, for example, the cost per person of entertainment hosted by the giver, what it would cost the public to purchase an item 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 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 public employee is accompanied by a spouse, family member or guest, the value of the meal of the companion of the public employee is included as part of the $50 "substantial value" threshold. Finally, under some circumstances, the Commission will consider a group or series of gifts from the same source, that are individually less than $50 in value but add up to $50 or more, to be in the aggregate a gift of substantial value for G.L. c. 268A purposes. For example, a meal and an entertainment event ticket from the same giver, 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.
The term "official act" is defined in the conflict of interest law 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.
The term "official responsibility" is defined in the conflict of interest law as "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action.” Official responsibility turns on the authority to act, not on whether that authority is, in fact, exercised. Even if a public employee abstains from all participation, he or she cannot shed his or her "official responsibility" for those matters if such responsibility exists.
Section 3. For a gift to violate § 3, 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 employee).
In general, therefore, a gift received as a reward or a thank you for an official act that a public employee has taken or will take, or to influence or induce any such official act or act under the public employee's official responsibility will be considered to be for or because of the official act.
Whether a gift is unlawful depends on the circumstances surrounding the gift. Such circumstances could include the identities and relationship of the giver and the recipient, the intent of the giver and the recipient, 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 summary, the Commission will look at all of the circumstances surrounding the gift.
Section 23(b)(2)(i). A public employee will violate § 23(b)(2)(i) by soliciting or receiving a gift of substantial value for or because of the public employee’s official position unless the gift is authorized by statute or regulation. For example, an inspector who works for a state agency may not accept a gift given to her because she is an inspector.
A public employee may accept a gift that is entirely unrelated to official action by the public employee, and to the public employee’s official position, and to the public employee’s performance of official duties so long as they are not given by a lobbyist in violation of G.L. c. 268B, § 6. Usually, no disclosure is required. If the public employee took any official action involving the giver in the six months before receiving the gift, or if the public employee is called upon to perform official duties regarding the giver in the six months after receiving the gift, the public employee must file a disclosure under 930 CMR 5.06.
Unless a gift is given by a lobbyist in violation of G.L. c. 268B, § 6, exemptions to § 3 and § 23(b)(2)(i) permit a public employee to accept certain specific types of gifts of substantial value. Exemptions include conditions that must be met, so it is important to find out details about when it is acceptable to receive the gifts listed below. In some instances, disclosures are required, and for non-elected public employees, some disclosures require approval by the appointing authority.
Disclosures are required to accept the following types of gifts of substantial value:
A disclosure sometimes is required to accept the following gifts of substantial value:
Elected public employees and their staff may accept the following gift of substantial value without filing a disclosure:
No disclosure is required when a public employee receives the following gifts of substantial value:
Whenever a public employee is offered or receives anything of value, even if it is not of substantial value, the conflict of interest law is still implicated. A public employee who receives a gift with a value of less than $50 may have to file a disclosure. If a reasonable person, having knowledge of the relevant circumstances, would conclude that the public employee could unduly favor the giver or be influenced by the giver when performing official duties related to the giver in the future, the employee must file a disclosure prior to taking any official action relating to the giver. 930 CMR 5.07. The disclosure must disclose the gift and the public employee’s relationship to the giver. Appointed public employees file the disclosures with their appointing authority, and elected employees file them in a public manner. 930 CMR 5.04. The intent of these requirements is to let the public employee’s appointing authority and/or the public know the relevant circumstances in advance of the public employee’s performance of official duties, so the issue regarding receipt of a gift will be recognized and there is an opportunity to address it. Public agencies may make their own stricter rules about acceptance of gifts with a value of less than $50.
For certain public employees, G.L. c. 268B, § 6 sets restrictions on taking gifts from lobbyists. An elected public official who is nominated at a state primary or chosen at a state election and a state or county public employee with a major policy-making position and their immediate family members may not solicit or accept a gift of any kind from an executive agent or legislative agent as defined by G.L. c. 3, § 39. (Executive agents and legislative agents are also prohibited from offering or giving gifts of any kind to these public employees.) 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 made in the ordinary course of business, an inheritance, or gifts from certain family members.
Also, the public officials and employees to whom G.L. c. 268B, § 6 applies may accept specific types of gifts from lobbyists 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 the lobbyist only used personal funds.
In addition, a public official or employee may accept a gift from a lobbyist who is an immediate family member or other relative, an intended spouse, or a member of the household 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. A public official or public employee also may receive an inheritance from such a lobbyist. (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.)
Gifts to any public employee -- whether paid or unpaid, elected or appointed -- are not expected or required in order to do business with the government. For additional information, see Advisories 04-01: Free Tickets and Special Access to Event Tickets and 04-02: Gifts and Gratuities.Please contact the Ethics Commission's Legal Division at (617) 371-9500 for advice.