1 : Whom Does Public Order And Morality Serve REPACK
This Advisory explains the restrictions placed by the conflict of interest law on public employee political activity. This Advisory addresses " election-related political activity," which is activity directed at influencing people to vote for or against candidates and/or ballot initiatives. This Advisory also addresses " non-election-related political activity," which is activity directed at influencing governmental decision-makers which does not involve an election. Non-election-related political activities include, for example, supporting or opposing: town meeting warrant articles, municipal bylaw changes, user fees for public services or school activities, changes to funding for public services, the renovation or construction of public buildings, roads, bridges, and other public infrastructure, closure of public libraries, schools or fire stations, and changes to state and local tax rates, laws, regulations, and budgets.
1 : Whom Does Public Order and Morality Serve
Which parts of this Advisory apply to you depends on the type of public position you hold. Different rules apply to elected and appointed public employees. Different rules apply to policy-making public employees and non-policy-makers. A "policy-making" position is one in the top management level of a governmental agency in which the holder actively participates in determining the agency's policies or plans of action. A non-policy-maker does not participate in determining agency policy, but instead carries out or puts into action policies determined by others. All elected positions are policy-making. Chief executives, town and city managers, department heads and board members are presumed to hold policy-making positions.If you are an ELECTED public employee, the following sections of this Advisory apply to you: Sections 1, 2, 3, 4, and 5.If you hold a POLICY-MAKING public position, the following sections of this Advisory apply to you: Sections 1, 2, 3, and 5.If you were APPOINTED to your public position and are not a policy-maker, the following sections of this Advisory apply to you: Sections 1, 2, and 5.If you have a question about election-related political activity by public employees, see Sections 1 through 4 of this Advisory.If you have a question about non-election-related political activity by public employees, see Section 5 of this Advisory.
In general, public employees of all types may engage in private political activity, subject to the restrictions on political fundraising imposed by G.L. c. 55. The conflict of interest law does not prohibit a public employee from engaging in political activity on his own time, using his own or other private resources, and when he is acting for himself and not as an agent or representative of anyone else.
Example: An appointed Assistant District Attorney may run for State Representative, as long as he does so on his own time and without using his paid public work time, his official title, or public resources such as his office email address or copy machine. The conflict of interest law does not, however, prohibit the Assistant District Attorney from including the fact of his public service in biographical information contained in his campaign literature or in his party primary nomination papers (and on the primary ballot) as allowed by state elections law. [1] The conflict of interest law does not require him to take a leave of absence from his Assistant District Attorney position to run, although the District Attorney's office may have its own policy that does so.
Example: A public school teacher may support a local ballot question, such as a tax limit override question, if she does so on her own time, and without the use of public resources. She may serve on a ballot question committee, so long as she does so without pay and does not fundraise or act as the agent for the campaign in any matter involving her town. She may distribute campaign literature, make get-out-the vote telephone calls, conduct campaign polls and research, drive voters to the polls, and display or hold signs.
Example: A state agency employee may support the election (or reelection) of a candidate for elected public office on his own time, and without the use of public resources. He may serve on a candidate's campaign committee (in an uncompensated capacity not involving fundraising or acting as the agent for the campaign in any matter involving the state), distribute campaign literature, make get-out-the vote telephone calls, conduct campaign polls and research, drive voters to the polls, and display or hold signs.
Example: A member of a town Conservation Commission, acting as a private citizen and without using his title or any public resources, may participate in a grass roots group's efforts to convince local government to build a new public school, provided that he does not act as the group's agent or representative and is not compensated for his participation. He may attend and speak on his own behalf at meetings concerning political issues; use his own stationery, computer, or wireless account to write letters to the editor or blogs; distribute advocacy literature or hold a political sign; use his own computer, email, or wireless account to send emails or text messages expressing his political views; draft and propose a warrant article for town meeting; attend public hearings concerning the proposal; and vote at town meeting.
Any public employee, acting in her official capacity and using public resources, and acting in a neutral and non-partisan manner, may notify the public that a state, county or federal election will be held on a certain date and encourage all voters to vote. A public employee may also neutrally notify the public generally that a town meeting will be held on a certain date and neutrally encourage all voters or members to attend. Public resources may not be used to notify only a subset of voters in order to influence the outcome of the vote or meeting. For example, notifying only the parents of school children of a ballot question whether to fund a new public school, and not notifying childless homeowners, would be prohibited, because it would not be neutral.
In general, a public employee may not use his public position to engage in political activity. Section 23(b)(2)(ii) of the conflict of interest law prohibits the use of one's public position to engage in political activity, because a public employee who does so is using his official position to secure for himself or others (such as a candidate or a ballot question committee) unwarranted privileges of substantial value that are not properly available to similarly situated persons.
For example, on the municipal level, municipal police chiefs, fire chiefs, library directors and school superintendents, although appointed, serve in policy-making positions and are customarily expected (if not required) to take positions on matters within the purview of or affecting their respective agencies. A police or fire chief is expected to take a position on whether a new public safety building is needed. A library director is expected to have a view on whether the public library should be expanded. A school superintendent is expected to recommend to the School Committee and the town's voters whether the public high school should be renovated or replaced. Therefore, by taking these actions, these policy-making public employees do not obtain or confer any unwarranted privileges of substantial value in violation of Section 23(b)(2)(ii).
By contrast, rank and file police officers and firefighters, public school teachers, and librarians serve in non-policy-making positions, and it is not part of their responsibilities to use public resources or their official positions to inform and guide the public discussion on these issues (although they may of course do so as private citizens).
The conflict of interest law does not define the scope of a public employee's official responsibility. Such scope may be defined by applicable statute, precedent, bylaw, job description or practice. For example, the official responsibility of a state agency commissioner may be defined in the agency's enabling law. The official responsibility of a police chief may be defined by state statute, local ordinance or bylaw, or employment contract. Because the conflict of interest law does not define it, the Commission's Legal Division will not advise on the scope of a public employee's official responsibility and will refer the employee to agency or municipal counsel for a determination as to whether the public employee is in a relevant policy-making position with respect to a particular ballot question. Municipalities vary in how they define the official responsibilities of particular positions. For instance, one city may want its police chief to take public positions on renovating a public safety building, while another may draft its chief's employment contract to include a provision forbidding her from doing so.
Example: A question concerning legalizing medical use of marijuana will be on the statewide ballot at the next election. The Colonel of State Police, acting in her official capacity, may assign her staff to use paid work time to analyze the impact of this proposal on agency operations. In her official capacity, on behalf of the State Police and without any compensation apart from her State Police salary, the Colonel may also: provide the resulting analysis to persons requesting it or attending public meetings of the agency or visiting its office; post the analysis on a governmental bulletin board or website, provided that it does not advocate for or against the ballot question; hold an informational forum, or participate in such a forum held by a private group; and communicate with the press concerning the ballot question and its potential impact on the State Police, but only in a manner and to a degree consistent with the established practices of the State Police. The conflict of interest law forbids the Colonel from doing any of these things for pay apart from her State Police salary; she may not be paid by a ballot question committee to do the actions listed in this example. 041b061a72