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Introduction to the Conflict of Interest Law for the Public Officials and Public Employees
Chapter 268A of the General Laws governs your conduct as a public official or employee. Below are some of the general rules that you must follow. You could face civil and criminal penalties if you take a prohibited action. There are some exemptions to these rules, so you may wish to seek legal advice from the State Ethics Commission or your agency's legal counsel regarding how the law would apply in a particular situation.
In general:
· You may not ask for or accept anything (regardless of its value), if it is offered in exchange for your agreeing to perform or not perform an official act.
· You may not ask for or accept anything worth $50 or more from anyone with whom you have official dealings. Examples of regulated "gifts" include: sports tickets, costs of drinks and meals, travel expenses, conference fees, gifts of appreciation, entertainment expenses, free use of vacation homes and complimentary tickets to charitable events. If a prohibited gift is offered: you may refuse or return it; you may donate it to a non-profit organization, provided you do not take the tax write-off; you may pay the giver the full value of the gift; or, in the case of certain types of gifts, it may be considered "a gift to your public employer", provided
it remains in the office and does not ever go home with you. You may not accept honoraria for a speech that is in any way related to your official duties, unless you are a state legislator.
· You may not hire, promote, supervise, or otherwise participate in the employment of your immediate family or your spouse's immediate family.
· You may not take any type of official action which will affect the financial interests of your immediate family or your spouse's immediate family. For instance, you may not participate in licensing or inspection processes involving a family member's business.
· You may not take any official action affecting your own financial interest, or the financial interest of a business partner, private employer, or any organization for which you serve as an officer, director or trustee. For instance: you may not take any official action regarding an "after hours" employer, or its geographic competitors; you may not participate in licensing, inspection, zoning or other issues that affect a company you own, or its competitors; if you serve on the Board of a non-profit organization, you may not take any official action which would impact that organization, or its competitors.
· Unless you qualify for an exemption, you may not have more than one job with the same municipality or county, or more than one job with the state.
· Except under special circumstances, you may not have a financial interest in a contract with your public employer. For instance: if you are a town employee, a company you own may not be a vendor to that town unless you meet specific criteria, the contract is awarded by a bid process, and you publicly disclose your financial interest.
· You may not represent anyone but your public employer in any matter in which your public employer has an interest. For instance, you may not contact other government agencies on behalf of a company, an association, a friend, or even a charitable organization.
· You may not ever disclose confidential information, data or material which you gained or learned as a public employee.
· Unless you make a proper, public disclosure -- including all the relevant facts -- you may not take any action that could create an appearance of impropriety, or could cause an impartial observer to believe your official actions are tainted with bias or favoritism.
· You may not use your official position to obtain unwarranted privileges, or any type of special treatment, for yourself or anyone else. For instance: you may not approach your subordinates, vendors whose contracts you oversee, or people who are subject to your official authority to propose private business dealings.
· You may not use public resources for political or private purposes. Examples of "public resources" include: office computers, phones, fax machines, postage machines, copiers, official cars, staff time, sick time, uniforms, and official seals.
· You may not, after leaving public service, take a job involving public contracts or any other particular matter in which you participated as a public employee.
Examples of Cases Decided by State Ethics
Family Members as Issues
In the Matter of Harry L. Brougham
In the Matter of Hugh K. Hubbard~~ (May 4, 1999)
The Commission cited Belchertown Water District commissioners Harry L. Brougham and Hugh K. Hubbard for violating the conflict law by signing warrants for payments to family members. Brougham signed warrants authorizing payments to his son Michael Brougham who owns M. Brougham Excavating Company. Hubbard signed warrants approving salary payments for his wife, Carol Hubbard, the water district clerk treasurer. In Disposition Agreements, Brougham and Hubbard admitted that they violated G.L. c. 268A, §19 by signing the warrants. According to the Disposition Agreements, between 1994 and 1997, M. Brougham Excavating Company performed work totaling $34,470 for the District. During this time period, Brougham signed 25 warrants approving a total of $17,350 in payments for bills to the company. Hubbard’s wife, Carol, was appointed
clerk treasurer in September 1994. She is supervised by the commissioners, including her husband, and receives an annual salary of approximately $10,000, as set by town meeting. During the period of 1992 through 1998, Hubbard as a water district commissioner approved weekly warrants authorizing his wife to receive a total of $45,000 in salary payments. Section 19 of the conflict law generally prohibits a municipal employee from officially participating in matters, such as employment decisions, in which an “immediate family” member has a financial interest.
In the Matter of J. Martin Auty~~~(April 14, 1998)
The Commission fined Mendon police officer J. Martin Auty $500 for his participation in the hiring of his stepdaughter, Sheri Tagliaferri, as a part-time police dispatcher in 1994 and as a part-time reserve police officer in 1994 and 1995. In a Disposition Agreement, Auty admitted that he violated G.L. c. 268A, §19 by screening and interviewing, as a member of a review committee, candidates other than Tagliaferri, who was one of 41 applicants for 12 police dispatcher positions. After the interviews, Auty participated in narrowing the pool to 12 final candidates; Tagliaferri was one of the finalists. On April 25, 1994, the selectmen approved all 12 candidates, including Tagliaferri. Auty also admitted that he violated G.L. c. 268A, §19 by screening and interviewing, as a member of a review committee, candidates other than
Tagliaferri, who was one of 38 applicants for four to six reserve police officer positions. After these interviews, Auty participated in narrowing the pool - this time to five final candidates; Tagliaferri was again one of the finalists. In September, 1995, the selectmen appointed the five finalists as reserve officers. Section 19 of the conflict law generally prohibits a municipal employee from officially participating in matters, such as employment decisions, in which an "immediate family" member has a financial interest. As Auty's wife's child, Tagliaferri is a member of Auty's "immediate family" for the purposes of the conflict law.
In the Matter of Eugene LeBlanc ~~~(December 30,1986)
The Commission issued a Public Enforcement letter concluding that Eugene LeBlanc, Nahant Building Inspector may have violated the conflict law by issuing permits for and inspecting the work of the construction company he owns and operates. Section 19 prohibits a municipal employee from participating in a particular matter which affects his own financial interest. Because the board of selectmen was aware at all times that LeBlanc was issuing permits for and inspecting work done by his construction company, the Commission did not levy a fine in this case.
Outside Employment Issues
In the Matter of Richard Burgess ~~~(March 24, 1992)
Richard Burgess, a real estate agent and Swansea Planning Board member, was sanctioned $500 by the Ethics Commission for violating the Massachusetts Conflict of Interest Law by acting as a planning board member on plans for properties that were ultimately sold by Burgess or his private sector employer. The Ethics Commission's Enforcement Division had charged Burgess with violating the conflict law in an Order to Show Cause issued in June of 1991. In a Disposition Agreement reached with the Commission, Burgess admitted that his actions violated Section 19 of the conflict law and agreed to pay the civil penalty. Section 19 prohibits municipal employees from participating in particular matters in which they, or a business organization with which they are associated, have a financial interest. According to the Disposition Agreement,
Burgess violated the conflict law on at least three occasions when he acted as a planning board member regarding certain plans that came before the board. Those plans involved lots under purchase and sale agreement by either Burgess himself or by his employer, M.J. McNally and Associates of Fall River. However, with regard to Burgess' participation in two of the matters -- developments known respectively as the Cheryl Drive and Warhurst Park subdivisions -- the Commission found Burgess' violations of the law to be unintentional, and therefore considered the relatively small sanction to be appropriate, the Agreement said.
In the Matter of William Turner ~~~(May 27,1988)
In a Disposition Agreement reached with the Commission, William Turner, West Bridgewater Zoning Board of Appeals (ZBA) Chairman, admitted he violated the conflict law by acting as agent for a real estate trust for which he was a trustee, and by asking the ZBA to grant permits for that trust. He was fined $1,000. Turner appeared before the ZBA on behalf of Turner Industrial Park Realty Trust (TIPRT) on three occasions between 1982 and 1986, and filed building permit and variance applications on behalf of TIPRT in 1985 and 1986, the Agreement said. At all times pertinent to the Commission's investigation, Turner was a trustee and one-third beneficial owner of TIPRT, as well as chairman of the ZBA, the Disposition Agreement said. Section 17 of the conflict law prohibits a municipal employee from acting as agent or attorney for anyone
other than the municipality in connection with a particular matter that is of direct and substantial interest to the town.
*In the Matter of G. Shephard Bingham ~~~(February 21, 1984)
A member of a local conservation commission admitted he violated §17 of the conflict law when he appeared before that commission on behalf of a private client. During 1982 and 1983, the commissioner represented a developer in his capacity as a private attorney, and appeared on behalf of that developer, before the conservation commission on two occasions. He was compensated for his appearances. Section 17 of G.L. c. 268A prohibits a municipal employee (and a special municipal employee, which this commissioner was) from receiving compensation or acting as attorney for a private party in connection with a particular matter within his official responsibility. A $750 civil penalty was assessed.
Gift and Income Issues
*In the Matter of Patrick F. Jordan ~~~(February 4, 1983)
A selectman violated Section 3(b) of the conflict law by accepting items of substantial value given to him because of his official duties. Specifically, the selectmen received financial assistance, in the form of loans and loan guarantees, from a developer whose site plans were subject to approval by the board of selectmen. By the terms of the Disposition Agreement, the selectmen agreed to pay a civil penalty of $1,000 and an additional $900 forfeiture of the economic advantage he gained as a result of the violation. He must also refrain from participating in matters coming before the selectmen in which the developer has a financial interest until his outstanding debt to the developer has been repaid.
*In the Matter of the Collector-Treasurer's Office of the City of Boston, et al~~~(February 27, 1981)
Municipal employees violate Chapter 268A by charging private fees to expedite the preparation and issuance of municipal lien certificates. For many years, employees had collected an extra private fee to perform this service within the time limit set by statute. By so doing, they violated Sections 3 and 17 of the conflict law which prohibits public employees from receiving extra compensation for performing official acts required by their jobs. Municipal officials who authorize this improper practice violated the Standards of Conduct in Section 23 of Chapter 268A because their authorization created the impression that official acts could be influenced by those willing to pay private fees for those acts, and that employees were acting in violation of their public trust. Municipal officials put a stop to the practice of accepting private
expediting fees after being advised by the State Ethics Commission that the practice raised substantial questions under Chapter 268A. By the terms of the Disposition Agreement, this practice will not be resumed and steps will be taken to alert employees to prohibitions against the receipt of such private fees.
In the Matters of Michael Murphy and P.J. Keating Co~~~(October 20, 1992)
The State Ethics Commission fined Winchendon's Department of Public Works (DPW) superintendent and a Massachusetts asphalt manufacturer $2,000 each for the company's free paving of the superintendent's driveway. The DPW superintendent, Michael Murphy, was also required to forfeit $2,000 to the Commonwealth for the fair market value of the paving. In separate Disposition Agreements with the Ethics Commission, both Murphy and P./J. Keating Company, through company treasurer Paul J. Keating, admitted that their actions violated Section 3 of Massachusetts G.L. c. 268A, the conflict law, and agreed to pay the fines and forfeiture. Section 3 of the conflict law prohibits public employees from seeking or accepting anything of substantial value that is given to them because of their official position, and also prohibits private sector entities
from offering or providing such gifts. As DPW superintendent, Murphy is responsible for the maintenance and reconstruction of the town roads in Winchendon and for the operation of the Winchendon Highway Department. The town's paving contract is put out to bid and awarded annually by the selectmen. Murphy reviews submitted bids and makes a recommendation on awarding the contract, the Disposition Agreement said. In June of 1987, P.J. Keating Co. submitted the low bid for the Winchendon paving contract. Murphy reviewed the bids and recommended the contract be awarded to Keating, the Disposition Agreements said. Keating Co. was ultimately awarded the Winchendon contract and was paid a total of $229,554.86, the Agreements said. Murphy supervised Keating's performance of the contract, the Agreements said. At some point in 1987, Murphy approached a Keating employee who was involved in paving Winchendon streets pursuant to Keating's town contract, and asked him if Keating would pave the
driveway of his personal residence in Winchendon. On the morning of July 29, 1987, Keating employees did a certain amount of paving in Winchendon pursuant to the municipal contract. After completing that paving, the Agreement stated, Keating employees went to Murphy's house, waited for the asphalt material to be delivered from the Keating plant and then paved Murphy's driveway. Approximately 60 tons of asphalt materials were used to pave Murphy's driveway, and labor and materials for the job had a fair market value of about $2,000. The town of Winchendon did not pay for either the materials or the labor involved in paving Murphy's driveway, the Agreement said. P.J. Keating Co. absorbed the costs associated with paving Murphy's driveway.
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