This page, Section 23(b)(2) Legal Opinions, is offered by

Section 23(b)(2) Legal Opinions

This section of the conflict of interest law prohibits public employees from knowingly, or with reason to know, using their official positions to secure unwarranted privileges or exemptions of substantial value for themselves or others.
  • EC-COI-82-33

    Section 4 of the conflict of interest law does not prohibit a state employee who is also an attorney in private practice from participating as an attorney in civil matters in federal district court or in matters before a municipality provided that the state neither was a party nor had a direct and substantial interest in those matters. Under section 23 of the law, the state employee should refrain from representing private clients in any proceedings which involve parties with whom he had dealings in his state capacity.

  • EC-COI-82-176

    May a state employee perform classroom instruction for a driver education course while simultaneously employed by the RMV?

  • EC-COI-83-4

    The Worcester Civic Center Commission is advised that it may not adopt a ticket reservation policy which would allow municipal and state officials to reserve Centrum event tickets.

  • EC-COI-84-78

    How the conflict of interest law applies generally to an assistant town counsel's private practice of law.

  • EC-COI-84-80

    Public agency employees may be allowed to accept a discount of nominal value from a sandwich shop that leases space in the public agency building.

  • EC-COI-84-127

    A justice of the District Court Department of the Trial Court of the Commonwealth may not be identified in a television advertisement as a member of the judiciary  by an advertising agency that is producing an advertising campaign for a Corporation.

  • EC-COI-86-3

    A state employee at the Secretary of State's office is considering a real estate venture that may seek limited partners which is overseen by the Secretary of State's office. Permissible but restrictions apply under sections 4, 5(d), 6 and 23.

  • EC-COI-86-11

    An associate justice of the Superior Court may not accept honoraria for participating in a law school seminar because the associate justice used leave time to attend the seminar.

  • EC-COI-86-14

    A car dealership selected to sell police vehicles to police departments pursuant to a collective bid is prohibited by sections 3 and 23(b)(2) from offering discounts to those officials involved in selecting the dealership to participate in the collective bid.

  • EC-COI-86-17

    A government transportation agency is prohibited under § 23(b)(2) from providing free passes for transportation services to agency board members, spouses of board members, three surviving spouses of former agency heads, county finance advisory board members, agency employees and their spouses, retired agency employees and their spouses, and to two legislative liaisons employed by the General Court, if used for non-job-related purposes.
  • EC-COI-86-22

    A special state employee is subject to the restrictions of §§ 4(c), 6 and 23 of the conflict of interest law in matters involving her private business interests that may involve state agencies.
  • EC-COI-86-24

    A member of the General Court may represent his family farm in connection with applying for an agricultural restriction from the Department of Food and Agriculture subject to the restrictions of §§ 4, 6, 7 and 23(b)(2) of the conflict of interest law.
  • EC-COI-87-1

    A selectman who is an officer of an organization which operates a private club may participate in the liquor license application of a restaurant which does not compete with the club.

  • EC-COI-87-3

    Two members of the board of directors of the Community Economic Development Assistance Corporation are special state employees and may continue their outside activities, subject to certain conditions.

  • EC-COI-87-4

    A member of the General Court may continue employment as a consultant to a company as long as his compensation is not derived from any contracts between the company and the state, and he refrains from appearing before state agencies in connection with state contracts or other particular matters.

  • EC-COI-87-5

    A state employee may serve as a paid member of the board of directors of a bank.

  • EC-COI-87-6

    The chief executive officer of a company which has performed services for the campaign committee of the head of a state agency may accept employment with that agency.

  • EC-COI-87-7

    A municipal official who is invited to attend an out-of-state event in his official capacity would, by receiving payment or reimbursement for transportation, lodging, and even admission from a private sponsor would violate section 23(b)(2) unless the municipality authorizes the payment or reimbursement

  • EC-COI-87-10

    A municipal treasurer who has been named as an unpaid corporator of a savings bank is prohibited by section 19 from official participating in matters affecting the board's financial interests, and from acting as the ban's agent in connection with matters in which the municipality is a party or has a direct and substantial interest.

  • EC-COI-87-18

    An attorney may serve as special municipal counsel representing a board of health in a state lawsuit.

  • EC-COI-87-20

    A state employee who is on a leave of absence from a private firm which provides contractual services to state agencies must abstain from participating in matters which will financially affect his firm.

  • EC-COI-87-21

    A selectman whose son is a patrolman in the police department may not approve collective bargaining agreements which include salary increases for patrolmen.

  • EC-COI-87-22

    Section 3 prohibits a state agency head from receiving for himself a gift of substantial value relating to duties which the official has performed.

  • EC-COI-87-23

    Section 3 prohibits a state agency head from receiving for himself a gift of substantial value relating to duties which the official has performed. By establishing a charitable trust which will receive and expend such gifts, the official will not have received for himself a gift in violation of section 3. He must observe the safeguards of section 23, however, in his official dealings with the donor.

  • EC-COI-87-31

    A municipal board of health member who owns a local restaurant may not participate officially on matters which concern either the restaurant, the restaurant's competitors, or the member's financial interest. Section 17 also prohibits the board member from installing septic systems locally as this work is presumptively in relation to the septic permit, a matter in which the town has a direct and substantial interest. (legislation passed in 1988 to allow this in certain cases)

  • EC-COI-87-37

    State employees may participate in a discount negotiated by a state agency for all state employees where similar discounts are negotiated in the public and private sector and the process by which the benefit accrued to state employees was competitive, public and fair.

  • EC-COI-87-38

    An employee of a state agency may accept an award of a trip for education purposes paid for by a private company if the state agency does not directly or indirectly regulate the activities of the company, the award is given to the agency and is not a personal gift offered to any particular employee.

  • EC-COI-88-12

    A former employee of a state agency who has recently become a state official in a second state agency must comply with the safeguards of section 23, including public disclosure, prior to his participation as a state official in matters in which his former state agency is now involved.

  • EC-COI-88-15

    A state employee who is also a partner and part owner of a private development company is subject to the following provisions: (1) Under section 4 the employee cannot act as an agent for or receive compensation from the company in relation to any applications for funds from state programs; (2) an exemption under section 7(b) must be filed with the Ethics Commission if the company wishes to apply for funding under state programs; and (3) under section 23(b)(3) the employee must not be unduly influenced by his private business in his official actions.

  • EC-COI-88-16

    Members of the Massachusetts Museum of Contemporary Art (MOCA) Commission are considered municipal employees of the City of North Adams because the Commission is an agency of the City. A MOCA Commission member is thus subject to sections 17, 19, and 23 with respect to his private positions as adjunct professor at Williams College and as Director of the Guggenheim Foundation.

  • EC-COI-88-22

    A state agency that operates a transportation facility would not violate sections 3 or 23 by enrolling the agency in a corporate care rental discount program where the car rental company is a tenant of the agency and would be the only car company used by the agency because the discount would not be an item of substantial value given to an individual employee and would be available because of the agency's organizational status rather than because of any landlord-tenant relationship. However, the agency's employees would violate section 23(b)(2) by accepting "frequent flyer bonus points" accruing from their state-funded car rentals because the cumulative value of such points could constitute an item of substantial value and would constitute an unwarranted privilege not available to similarly situated individuals.

  • EC-COI-89-3

    The executive director of the state group insurance commission may accept, for official use by the commission, a donation of consultant services from to a life insurance company which currently holds a contract with the commission. The Commission must observe the safeguards of 23 in connection with its monitoring of the company's performance under the contract.

  • EC-COI-89-4

    A member of the General Court may accept promotional rate tickets for himself and his spouse to conduct a series of substantial speaking engagements. The spouse promotional rate is permissible under an established industry-wide practice available to similarly situated individuals.

  • EC-COI-89-10

    A county commissioner may also represent clients in real estate and health care issues before municipal, state and federal agencies, inasmuch as these matters are not of direct and substantial interest to the county.

  • EC-COI-89-11

    A state employee who wishes to resign and accept a consultant contract with the same state agency must comply with sections 4, 6 and 23.

  • EC-COI-89-15

    An unpaid member of a state authority is a special state employee. He may retain his membership on the board of overseers of an institution that falls under the jurisdiction of his state authority because, in this case, the overseers do not have management authority over the institution, but instead have advisory authority. Therefore, the employee's status as a board member does not require his abstention under section 6, although proper disclosures under section 23 could be necessary in certain instances. As a special state employee, he must avoid acting as agent or attorney for the institution in connection with anything under his official responsibility at the authority.

  • EC-COI-89-16

    A state employee may participate in a matter involving a person who was, 10 years ago, a member of the same athletic club as the state employee, and whom the state employee has not seen in 10 years with the exception of three chance social occasions. To dispel the appearance of favoritism, however, the employee should make a public disclosure to his appointing authority of his past friendship, and be guided by the standards of conduct set forth in section 23.

  • EC-COI-89-19

    A municipal official may participate in a local zoning amendment decision where the municipal official's spouse does not have a reasonably foreseeable financial interest in the decision because it is unknown how the decision will affect the real estate of a corporation in which the spouse owns stock.

  • EC-COI-89-23

    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.

  • EC-COI-89-30

    A police chief may work 15 hours a week as a security consultant to a new resort in the town subject to the restrictions in sections 23, 3, 17 and 19.

  • EC-COI-89-31

    A member of the General Court who is also an attorney would be subject to section 4 if he were to become "of counsel" to a large law firm which either currently or potentially represents clients before state agencies. Unless the Legislator is deemed to have "partner" status at the private law firm, the section 4 restrictions will not apply to other attorneys in the law firm.

  • EC-COI-89-32

    A special municipal police officer who owns the only garage in the town with a tow truck is considered a "special municipal employee" in his part-time police officer position. As a special, the officer may repair town fire trucks if his police duties do not include matters concerning the fire department, and if he files a written disclosure with the Town Clerk. He may provide towing services to the town, provided he complies with the exemption requirements of section 20(d).

  • EC-COI-90-3

    Members of the board of directors of a foundation created and supported by a state college to perform a governmental function for the college are special state employees of a state agency under G.L. c. 268A, section 1(p). Directors must observe the limitations of sections 7 and 23 in their dealings with other state agencies.

  • EC-COI-90-4

    Section 4 of G.L. c. 268A permits housing court specialists to perform code inspection work for a housing authority.

  • EC-COI-90-5

    Partners in a law firm may perform legal services for a state agency subject to sections 6 and 23.

  • EC-COI-90-9

    The head of a public agency is advised of the restrictions section 23 of the conflict of interest law will impose on his working as an unpaid advisor to candidate for public office.

  • EC-COI-90-14

    The superintendent of a regional school district who also owns a software company may donate to the district a software package, subject to certain restrictions. In particular, he may not officially participate in the matter as superintendent nor may he act as his company's agent in its dealings with the district.

  • EC-COI-91-6

    A county employee may engage in part-time employment with a private company which, by permit from a city and the Commonwealth, provides disposal and treatment services for waste water. For purposes of section 11, the county employee's activities do not involve the interests of the county in any direct or substantial way because the company has no dealings with the county or any county agency.

  • EC-COI-91-8

    A town administrator could apply for and accept from town employees under his supervision a generally available federal housing rehabilitation grant for his personal residence. He was exempt from section 20 by virtue of subsection (e), and section 17 did not apply as he was acting on his own behalf. The town employees were required to disclose the relevant facts to avoid violating section 23(b)(3).

  • EC-COI-91-13

    G.L. c. 268A, section 23(b)(2) prohibits selectmen from accepting a token donation from a private party for the purpose of eligibility in the municipal agency health insurance program.

  • EC-COI-91-14

    A member of the General Court may own and operate a consulting/seminar business within the confines of G.L. c. 268A. However, certain conditions apply to the business, the most restrictive of which prohibits the business from providing any services on matters involving Massachusetts legislative activities. Those services are prohibited by section 23(b)(1) because they would be inherently incompatible with the office of a state legislator. NOTE: THE COMMISSION DID NOT ADDRESS WHETHER section 23(d) WOULD ALTER THIS CONCLUSION.

  • EC-COI-92-1

    A City Councilor may also be employed by a "community action agency," subject to the usual limitations on a regular municipal employee's outside employment, because a community action agency is not a "municipal agency" under G.L. c. 268A.

  • EC-COI-92-4

    A volunteer state employee may continue to receive compensation from his private employer, from whom he has obtained a leave of absence, provided that a specifically tailored state regulation authorizes the arrangement, notwithstanding the restrictions of G.L. c. 268A, section 4. The regulation would make the arrangement "as provided by law for the proper discharge of official duties" within the meaning of section 4. The state employee will, however, be subject to other guidelines under c. 268A.

  • EC-COI-92-5

    Public officials seeking reelection or higher office would violate section 23 of G.L. c. 268A by displaying the Seal or Coat of Arms of the Commonwealth on private stationery for fund-raising or other campaign purposes. Recipients might reasonably infer from such use of the state seal that the solicitation was supported or endorsed by the Commonwealth when in fact it is for the benefit of a personal interest.

  • EC-COI-92-7

    A state employee may not enter a private business relationship with a subordinate (nor with a vendor he supervises, nor a person within his regulatory jurisdiction) unless: (1) the relationship is entirely voluntary; (2) the subordinate initiates the relationship; and (3) the supervisor publicly discloses facts clearly showing (1) and (2).

  • EC-COI-92-8

    A member of the General Court may hold, and receive compensation for, an elective or appointive municipal office without the necessity of complying with the "purview" restrictions applicable to other state employees (found in G.L. c. 268A, section 4). Members of the General Court are exempt from the restrictions of section 4, except under limited circumstances.

  • EC-COI-92-12

    An appointed state employee, even if unpaid, may not solicit campaign contributions from persons under his regulatory jurisdiction, nor use state facilities or resources in such solicitations.

  • EC-COI-92-18

    An elected County Retirement Board member may remain a Board member and continue private employment with an investment firm if he complies with the provisions of sections 11, 12, 13 and 23.

  • EC-COI-92-21

    Section 19 prohibits a fire district prudential committee member from participating in any matter in which his son, a fire fighter in the district, has a direct and immediate or reasonably foreseeable financial interest. The committee member must refrain from participating in discussions or votes concerning the collective bargaining agreement for full-time fire fighters, as well as any other matter which will affect his son's financial interest, including but not limited to seniority rights, lay-offs, retirement, health benefits and disciplinary matters.

  • EC-COI-92-23

    Section 23(b)(2) prohibits Town Clerks from arranging to provide immediate election results by telephone to a private news agency, in return for substantial payments by the news agency to the Clerks' private association, unless a state statute or regulation explicitly authorizes the arrangement.

  • EC-COI-92-25

    A state environmental police officer may also be appointed to an unpaid municipal conservation commission, but he may not act as that commission's agent in relation to any particular matter within his state agency's purview. In effect, he may also not perform his state environmental police duties within that town.

  • EC-COI-92-28

    Under section 23(b)(2), the Governor is prohibited from signing a solicitation letter to benefit a private non-profit organization which is seeking to attract the summer Olympics to Massachusetts and which is targeted, in part, to individuals or organizations subject to the regulatory authority of the Administration because the solicitation was not authorized by statute or regulation.

  • EC-COI-92-30

    A City Council may not elect one of its members as a City Clerk until thirty days after he resigns as a Councilor, because every multi-member municipal body, including this city council, is a "municipal commission or board" for section 21A purposes. While he remains a Councilor, sections 19 and 23(b)(2) prohibit him from participating in matters related to his city clerk candidacy and from using his position to further his candidacy.

  • EC-COI-92-35

    Section 7 prohibits an employee of a state agency from having a financial interest in state subsidized rents (or other state benefits paid directly to the state employee in exchange for goods or services) unless she can rely upon an exemption to section 7. In addition, section 23 prohibits a state employee from initiating private business relationships with person over whom she exercises official authority.

  • EC-COI-92-37

    A member of the General Court is prohibited, by section 3, from accepting free or discounted office space and office furnishings for use as a district office, which is given by an individual or private or public entity who is making the offer as a gesture of good will.

  • EC-COI-92-38

    G.L. c. 268A, section 3 will not prohibit employees of the Executive Office of Economic Affairs from soliciting funds from private businesses who have official dealings with the agency in order to fund an agency program as a statute authorizes the solicitation and the solicitation is for the benefit of the agency, not a particular public employee. Section 23(b)(3) requires that state employees who have official dealings with contributing organizations file a disclosure with their appointing authority.

  • EC-COI-92-39

    Section 23(b)(2) prohibits an appointed public official from using his official title in endorsing a political candidate.

  • EC-COI-93-1

    Firefighters may not use official resources to promote vendor sales of a product, unless the use is authorized by a bylaw, or is an explicit contract provision, or the municipality is provided with reasonable reimbursement. Firefighters may not use their official position or title to endorse a product on behalf of a vendor.

  • EC-COI-93-5

    An agent of the Division of Registration assigned to the Pharmacy Board of Registration may be employed as a registered pharmacist outside of his normal state working hours provided that he does not serve as the principal pharmacist for the pharmacy and will therefore not have dealings with any agency of the Commonwealth. Under section 6, as an agent for the Division, he may not participate in inspections or investigations of the pharmacy by which he is privately employed or of any of the geographic competitors of that pharmacy.

  • EC-COI-93-6

    Charitable solicitations by police officers and police benevolent associations are primarily regulated by G.L. c. 41, section 98E, but are further restricted by the "appearances" section of the conflict of interest law (section 23[b][3]). Section 23(b)(2) prohibits police officers, when soliciting for charitable contributions, from exploiting their official position, or implying that good or bad consequences might result from a decision whether or not to donate; it also prohibits police officers from appearing in uniform while soliciting, using a municipal or other official seal for the solicitation, or using other official resources (e.g., telephones, copying machines, paid time) to further the solicitation.

  • EC-COI-93-11

    Generally, a state Legislator (member of the General Court) may, upon the request of a public works contractor, recommend various community organizations for the contractor to work with on construction mitigation issues. Similarly, the Legislator may recommend that the contractor make financial contributions to community organizations as part of its construction mitigation measures. the Legislator may not take such actions if he or a member of his immediate family have a financial interest in the construction project, the mitigation efforts, or the community organizations; or if the Legislator is an officer, trustee, partner, board member or employee of an involved community organization.

  • EC-COI-93-17

    A Selectman who is also a teacher cannot re-negotiate a Town Manager's contract (where re-appointment or conditions upon which the Manager can continue employment are at issue), but he may participate in the mere evaluation of the Manager's performance (where re-appointment is not at issue).

  • EC-COI-93-23

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

  • EC-COI-94-2

    Section 3 does not apply to items of substantial value which are given to a public employee as the result of an official act of the Commonwealth or a political subdivision thereof. However, section 23(b)(2) will prohibit public employees from using such passes for non-job-related travel, where that usage exceeds $50 in a calendar year.

  • EC-COI-94-3

    A municipal building inspector can not display his status as a "Massachusetts Certified Inspector of Buildings" on business cards to be used in his private business activities. Where such certification is derived from his municipal position, the conflict law will prohibit the municipal building inspector's private use of the certification. In addition, under the conflict law, the municipal inspector may not privately inspect buildings within the municipality by which he is employed. Due to the statutory obligation that the municipal building inspector take action upon encountering certain situations, the inspector's independent judgment might be impaired by a private business relationship with a paying client.

  • EC-COI-94-4

    A court officer can also serve as a constable. Under section 4(a), she may receive compensation as a constable from non-state parties, even where the state is a party to the particular matter, as such compensation is "provided by law." (See EC-COI-03-1, which finds that such compensation is not "provided by law.") However, she must obtain a section 7(b) exemption to provide paid constable services on behalf of a state agency, and an exemption to section 20 to provide paid constable services on behalf of a municipal agency. She may not act as a constable for the Trial Court, as court officers are employees of the entire trial court, rather than the department to which they have been assigned, pursuant to the Court Reform Act. Finally, section 23 imposes restrictions on solicitation for her constable business.

  • EC-COI-95-4

    An elected municipal official, who also serves as a savings bank "corporator", is not required to abstain from official actions affecting the financial interests of the savings bank. G.L. c. 268A section 19 generally prohibits a municipal employee from taking any official action affecting the financial interests of an organization for which the municipal employee serves as a director or officer. However, the duties and powers of a bank "corporator" are not analogous to those of an officer or director, and therefore the general prohibition is not triggered.

  • EC-COI-95-5

    A Mayor is advised that City employees may receive "government rate" discounts on their private cellular phone service from the City's cellular telephone carrier, because such discounts are given as a "common industry-wide practice" to other large groups of employees, rather than because of the city employees' official positions. However, the employees may not use City resources to implement or receive bills for their private usage.

  • EC-COI-95-9

    A member of the General Court, privately employed as a residential loan officer, is advised that he may not accept commissions for initiating loans which involve state financial assistance programs. Also, his private work is subject to the restrictions of G.L. c. 268A, sections 4, 6 and 23.

  • EC-COI-95-11

    A former Chairman of a town Zoning By-Law Study Committee, who is a lawyer in private practice, may serve as paid counsel to the Committee. However, his private law practice will be subject to the restrictions of G.L. c. 268A, sections 17, 18, and 23, and his official actions subject to the restrictions of G.L. c. 268A, sections 19 and 23.

  • EC-COI-97-1

    A part-time intermittent police officer may work as a security guard in the same city where they serve as a police officer as long he is not on active police duty.

  • EC-COI-97-4

    Elected or appointing officials may identify their current or past official titles in privately funded advertisements of their services.

  • EC-COI-98-2

    Attorney General's Office Chief of Administrative Law Division may use public time and resources to perform duties as chair of the public law section of the Massachusetts Bar Association that are in furtherance of the public interest, interconnected with his official duties, and not involving partisan or political activity, as long as he obtains advance written approval from his appointing authority.

  • EC-COI-02-3

    The conflict of interest law generally does not prohibit municipal clerks who are also justices of the peace from solemnizing marriages during their municipal work day on municipal premises, and collecting solemnization fees authorized under G.L. c. 262, section 35, as long as their municipal duties are not adversely affected.

  • EC-COI-06-4

    The conflict of interest law permits a private nonprofit organization to give, and a public employee who does not regulate or otherwise exercise official power over the giver to accept, an unsolicited, "no strings attached" award of substantial value in bona fide recognition of the public employee's outstanding public service, leadership, dedication or potential. Such an award is not a gift in violation of G. L. c. 268A, section 3 or an unwarranted privilege in violation of section 23(b)(2) of the statute.

  • EC-COI-12-1

    A municipal employee may, consistent with the conflict of interest law, solicit donations to a municipal trust fund from persons and entities with whom he, or other municipal employees, has or expects to have official dealings, provided that (1) the solicitation is carried out in accordance with G.L. c. 44, § 53A; (2) the solicitation is not made in circumstances that are inherently coercive because the person or entity solicited may be directly and significantly affected by a pending or anticipated decision of the same municipality; (3) no overt pressure is exerted in connection with any such solicitation; (4) the municipality and its employees apply objective standards in all dealings with persons and entities solicited, and do not favor those who give or disfavor those who do not; and (5) the municipal employee principally responsible for making such solicitations discloses the names of all those solicited in any manner (oral, written, electronic, or other), by himself or other municipal employees; these disclosures must be made publicly and in writing pursuant to G.L. c. 268A, § 23(b)(3).