Code of Conduct PO 436.docx

Code of Conduct

PPENDIX D: CODE OF CONDUCT FOR PUBLIC EMPLOYEES

The Office of the Inspector General has developed the following Code of Conduct, which sets standards of conduct for public employees engaged in official business relationships. We recommend that public jurisdictions adopt the Code to preserve the integrity of business relationships and to maintain the highest level of public confidence in the impartial operation of government. You can obtain information and advice regarding the requirements of the Massachusetts conflict of interest law, M.G.L. c. 268A, at the website of the State Ethics Commission, www.mass.gov/ethics.

CODE OF CONDUCT FOR PUBLIC EMPLOYEES

INTRODUCTION

The Massachusetts Office of the Inspector General has developed this Code for use by public agencies throughout the Commonwealth. Five major areas are addressed by this Code: gifts and gratuities, reimbursement of travel expenses, honoraria, testimonial and retirement functions, and groundbreaking and dedication ceremonies. This Code is not all-inclusive. It does not regulate every conceivable situation in which a public employee may be offered gifts or other items of monetary value. It does not address other activities prohibited by the conflict of interest law, such as bribery, participation in official matters affecting one’s financial interests or those of one’s family or business and misuse of one’s official position. (Applicants for employment by the Commonwealth must disclose all persons who are related to the applicant who are also state employees.) Information and advice on the Massachusetts conflict of interest law, M.G.L. c. 268A, may be obtained from the State Ethics Commission at www.mass.gov/ethics. As used in this Code, “we” and “our” refer to the agency adopting this Code; “you” refers to the agency’s employees or members.

I. GIFTS AND GRATUITIES

A. General Restrictions You may not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or other item of monetary value from a person, public agency or private entity you know or have reason to know:

1. Has had, has, or is seeking to obtain contractual or other business or financial relations with us;

2. Conducts or is seeking to conduct business or other activities that are regulated or monitored by us; or

3. Has interests that may be or may give the reasonable impression of being substantially affected by the performance or nonperformance of your official duties.

Example: You may not accept a restaurant lunch from a consultant employed by a firm under contract to us.

Example: You may not accept a Christmas gift from a vendor seeking business with us.

Example: You may not accept a ticket to a sporting event from an individual whose business we regulate.

B. Exceptions

1. You may accept gifts in cases involving a family or personal relationship when the circumstances make clear that the relationship is the motivation for the gift.

2. You may accept nonalcoholic beverages, such as coffee or tea, from public or private entities.

3. You may attend and accept food and beverages at seasonal or celebratory functions, such as Christmas, birthday or retirement parties, hosted by public entities.

4. You may accept food and beverages in connection with attendance at working meetings held in the office of a public entity.

5. You may accept food and beverages in connection with attendance at widely attended meetings or gatherings held by a private trade or professional association in an office or other business setting when you are attending the meeting or gathering in your official capacity for informational, educational or other similar purposes.

Example: You may accept a modest meal served in a restaurant function room in conjunction with an informational, widely attended meeting hosted by a professional association.

Example: You may not accept food and beverages at a hospitality suite hosted by one or more private firms.

6. You may accept loans from banks or other financial institutions to finance proper and usual customer activities, such as home mortgage loans and automobile loans. If the bank or financial institution is an entity with which you have or might reasonably expect to have dealings in your official capacity, you must be able to demonstrate that the loan has been granted on current customary terms. You must also provide written disclosure of the loan to your supervisor. The previous sentence does not apply if your duties or anticipated duties with respect to the bank are limited to obtaining third-party records.

7. You may accept unsolicited advertising or promotional materials of nominal value.

Example: You may accept an unsolicited, inexpensive promotional pen or calendar.

Example: You may not accept a leather portfolio.

II. REIMBURSEMENT OF TRAVEL EXPENSES

A. General Restrictions You may not accept reimbursement for travel expenses from a person or entity who falls within the scope of Section IA, above.

B. Exceptions

1. If you deliver a speech or participate in a conference, we may elect to accept reimbursement from the sponsor of the speech or conference for your actual and necessary travel expenses. In this case, we – not the sponsor – will pay or reimburse you in accordance with our travel policy, and bill the sponsor for the appropriate amount.

2. If we determine that employee travel is a necessary component of a vendor evaluation process, we may elect to require competing vendors to reimburse us for actual and necessary travel expenses incurred in connection with the evaluation. In this case, we – not the vendors – will pay or reimburse you in accordance with our travel policy. The publicly advertised request for proposals or bids must set forth our procedures for calculating and billing all competing vendors for the appropriate amounts.

III. HONORARIA

A. General Restrictions You may not accept honoraria or other monetary compensation from an outside source in return for a public appearance, speech, lecture, publication or discussion unless all of the following conditions are met:

1. Preparation or delivery of the public appearance, speech, lecture, publication or discussion is not part of your official duties;

2. Neither the sponsor nor the source, if different, of the honorarium is a person or entity who falls within the scope of Section IA, above;

3. You do not use office supplies or facilities not available to the general public in the preparation or delivery of the public appearance, speech, lecture, publication or discussion; and

4. You do not take office time for the preparation or delivery of the public appearance, speech, lecture, publication or discussion.

Example: You may accept an honorarium for a magazine article prepared outside working hours.

Example: You may not accept an honorarium for delivering a speech in your official capacity.

B. Exceptions

1. You may accept awards, certificates or other items of nominal value given for a speech, participation in a conference, or a public contribution or achievement.

Example: You may accept a framed certificate of appreciation.

Example: You may not accept an engraved pewter bowl.

IV. TESTIMONIAL AND RETIREMENT FUNCTIONS

A. General Restrictions

1. You may not solicit contributions, sell tickets or otherwise seek or accept payment for a testimonial or retirement function, or any function having a similar purpose, held for yourself or any other employee, if the contributor is a person or entity who falls within the scope of Section IA, above, and the admission price or payment exceeds the actual per-person cost of food and beverages served at the function.

Example: You may not offer or sell tickets to a testimonial dinner to contractors doing business with us if the ticket price includes a contribution toward a gift.

2. You may not accept food, beverages or gifts at any testimonial or retirement function, or any function having a similar purpose, if such food, beverages or gifts are paid for or subsidized by a person or entity who falls within the scope of Section IA, above.

Example: You may not accept a free admission to a retirement luncheon if the cost of your admission is paid, directly or indirectly, by one or more contractors doing business with us.

Example: You may not accept a retirement gift if the gift was paid for with the proceeds of tickets purchased by contractors doing business with us.

B. Exceptions None.

V. GROUNDBREAKING AND DEDICATION CEREMONIES

A. General Restrictions

1. You may not request or require any person or entity who falls within the scope of Section IA, above, to sponsor or contribute to any groundbreaking ceremony, dedication ceremony, or similar occasion involving a public works project. If we determine that a groundbreaking or dedication ceremony for a public works project serves a legitimate public purpose, we may elect to fund such a ceremony. We may plan and pay for the ceremony. Alternatively, we may include the ceremony-related services in the construction bid specifications for the public works project.

2. You may not accept food, beverages or gifts at any groundbreaking ceremony, dedication ceremony, or similar occasion involving a public works project if the food, beverages, or gifts are paid for or subsidized by a person or entity who falls within the scope of Section IA, above.

B. Exceptions None.

APPENDIX E: CODE OF CONDUCT FOR CONSULTANTS ON PUBLIC BUILDING PROJECTS

INTRODUCTION

The Massachusetts Office of the Inspector General, in collaboration with the Massachusetts School Building Authority (MSBA), has developed this Code of Conduct for Consultants on Public Building Projects for project designers, interior designers, owner’s project managers (OPMs), and other consultants under contract to public agencies to work on public building projects, as well as for key subconsultants assigned to the projects. The services and assistance that these consultants provide to public owners typically includes advice on procurement-related matters. For example, designers and their subconsultants often develop specifications for construction materials and furniture, fixtures, and equipment (FFE); evaluate bidder responsibility; and review change order requests. OPMs are required by M.G.L. c. 149, § 44A½, to assist the owner with selection and oversight of designers and the contractors on public building projects, and the MSBA’s regulations require OPMs to assist public owners with procurements of other contracts. Thus, consultants and subconsultants on public building projects may influence procurement and contracting decisions affecting the quality and cost of public building projects.

The State Ethics Commission has determined that an employee, officer, or partner of a business that performs services for a government agency may, under some circumstances, be a public employee under the Massachusetts conflict of interest law, M.G.L. c. 268A. The Commission has developed a multi-factor analysis for determining whether an individual, such as a designer or OPM, performing services for a government agency is a public employee.97 97 See “Advisory 06-01: Consultants and Attorneys Who Provide Services to Government Agencies May Be Public Employees Subject to the Conflict of Interest Law.“ 98 For additional information and guidance on the conflict of interest law and its applicability to consultants, you may call the State Ethics Commission at 617-371-9500 or 888-485-4766, or consult the State Ethics Commission website at www.mass.gov/orgs/state-ethics-commission.

This Code of Conduct is more restrictive than M.G.L. c. 268A with respect to acceptance of gifts, gratuities, and other items of monetary value from interested parties. This Code of Conduct is not intended to be all-inclusive and does not address all activities regulated under M.G.L. c. 268A, such as bribery, nepotism, and divided loyalties.98 This Code of Conduct is intended for all consultants on public building projects, as well as their key subconsultants, whether or not they are considered public employees under M.G.L. c. 268A. The intent of this Code of Conduct is to ensure that every consultant and key subconsultant on a public building project avoids acceptance of gifts, gratuities, and other items of monetary value from interested parties, as defined in this Code of Conduct, when acceptance of the gift, gratuity, or other item could compromise The Office of the Inspector General recommends that public agencies require consultants and key subconsultants assigned to public building projects to comply with this Code of Conduct by incorporating this Code of Conduct by reference into their contracts.

the capacity of the private individual or firm to act in the public interest, could create the appearance of impropriety, or could otherwise undermine public confidence in the integrity of those responsible for public building projects.99 99 This Code of Conduct is consistent with Rule 2.103 of the American Institute of Architects 2017 Code of Ethics and Professional Conduct, which states: “Members serving in a public capacity shall not accept payments or gifts which are intended to influence their judgment.”

RESTRICTIONS ON SOLICITATION OR ACCEPTANCE OF GIFTS, GRATUITIES, AND OTHER ITEMS OF MONETARY VALUE You may not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or other item of monetary value from a private person or organization that is an interested party. For purposes of this Code of Conduct, an interested party is a private person or organization that you know or have reason to know:

• Has had, has, or is seeking to obtain contractual or other business related to the public building project.

• Conducts or is seeking to conduct business or other activities in connection with the public building project.

• Has interests that may be or may give the reasonable impression of being substantially influenced by the performance of your duties related to the public building project.

Examples of Restrictions A project designer may not accept a holiday gift from the project construction contractor.

An FFE subconsultant to a school project designer may not accept tickets to a sporting event from a vendor of school furniture.

A project OPM may not accept a restaurant meal from the project’s construction management at-risk firm.

EXCEPTIONS

1. You may accept gifts in cases involving a family or personal relationship when the circumstances make clear that the relationship, and not your role on the public building project, is the motivation for the gift.

2. You may accept nonalcoholic beverages, such as coffee or tea, and breakfast food items of nominal value, such as muffins, pastry, and fruit, from an interested party.

3. You may accept unsolicited or promotional materials of nominal value, such as inexpensive promotional pens and calendars, from an interested party.

EXCEPTIONS THAT REQUIRE DISCLOSURE TO THE PUBLIC AGENCY

1. You may accept a modest meal paid for by an interested party in connection with attendance at a presentation, such as a “lunch and learn” presentation approved by the American Institute of Architects Continuing Education System, or in connection with attendance at a project meeting held in an office, provided that the purpose of the event serves a legitimate public purpose and that you provide a written disclosure of the meal and the donor’s identity to the public agency contracting for your organization’s services.

2. You may accept reimbursement of travel expenses from an interested party when the purpose of the travel serves a legitimate public purpose provided that, prior to the travel, you provide a written disclosure of the planned travel and reimbursement arrangements, including the identity of the interested party, to the public agency contracting for your organization’s services and provided that the public agency determines that the planned travel serves a legitimate public purpose.

The written disclosures required by the above two exceptions may be made on disclosure forms provided by the State Ethics Commission on its website, at www.mass.gov/disclosure-forms.

1. Disclosure form to report the receipt of modest meals paid for by interested parties at events that serve a legitimate public purpose: https://www.mass.gov/files/documents/2016/08/ql/disc-5-083-event-expense-apptd-new.doc.

2. Disclosure form to report travel expenses reimbursed by interested parties for events that serve a legitimate public purpose: https://www.mass.gov/files/documents/2016/08/uj/disc-5-082-travel-appointed-feb-2012.docx.

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