Session Laws

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to immediately regulate the conduct of public officials, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The general court recognizes that in connection with standards for the conduct of public officials it should be recognized that under our democratic form of government, public officials and employees should be drawn from all of our society; that citizens who serve in government cannot and should not be expected to be without any personal interest in the decisions and policies of government; that citizens who are government officials and employees have a right to private interests of a personal, financial and economic nature; that such standards of conduct should separate those situations of conflicting interest which are inherent in a free society from those which are unacceptable.

SECTION 2. Chapter 268A of the General Laws is hereby amended by striking out section 23, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 23. (a) In addition to the other provisions of this chapter, and in supplement thereto, standards of conduct, as hereinafter set forth, are hereby established for all state, county, and municipal employees.

(b) No current officer or employee of a state, county or municipal agency shall knowingly, or with reason to know:

(1) accept other employment involving compensation of substantial value, the responsibilities of which are inherently incompatible with the responsibilities of his public office;

(2) use or attempt to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals;

(3) act in a manner which would cause a reasonable person, having knowledge of the relevant circumstances, to conclude that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. It shall be unreasonable to so conclude if such officer or employee has disclosed in writing to his appointing authority or, if no appointing authority exists, discloses in a manner which is public in nature, the facts which would otherwise lead to such a conclusion.

(c) No current or former officer or employee of a state, county or municipal agency shall knowingly, or with reason to know:

(1) accept employment or engage in any business or professional activity which will require him to disclose confidential information which he has gained by reason of his official position or authority;

(2) improperly disclose materials or data within the exemptions to the definition of public records as defined by section seven of chapter four, and were acquired by him in the course of his official duties nor use such information to further his personal interest.

(d) Any activity specifically exempted from any of the prohibitions in any other section of this chapter shall also be exempt from the provisions of this section. The state ethics commission, established by chapter two hundred and sixty-eight B, shall not enforce the provisions of this section with respect to any such exempted activity.

(e) Where a current employee is found to have violated the provisions of this section, appropriate administrative action as is warranted may also be taken by the appropriate constitutional officer, by the head of a state, county or municipal agency. Nothing in this section shall preclude any such constitutional officer or head of such agency from establishing and enforcing additional standards of conduct.

(f) Upon qualification for office following an appointment or election to a municipal agency, such appointed or elected person shall be furnished by the city or town clerk with a copy of this section. Each such person shall sign a written acknowledgement that he has been provided with such copy.

SECTION 3. Section 3 of chapter 268B of the General Laws, as so appearing, is hereby amended by striking out clause (d) and inserting in place thereof the following clause:-

(d) make statements and reports filed with the commission available for public inspection and copying during regular office hours upon the written request of any individual who provides identification acceptable to the commission, including his affiliation, if any, at a charge not to exceed the actual administrative and material costs required in reproducing said statements and reports; the commission shall forward a copy of said request to the person whose statement has been examined.

SECTION 4. Said section 3 of said chapter 268B, as so appearing, is hereby further amended by striking out clause (i) and inserting in place thereof the following clause:-

(i) act as the primary civil enforcement agency for violations of all sections of chapter two hundred and sixty-eight A and of this chapter.

SECTION 5. Said chapter 268B is hereby further amended by striking out section 4, as so appearing, and inserting in place thereof the following section:-

Section 4. (a) Upon receipt of a sworn complaint signed under pains and penalties of perjury, or upon receipt of evidence which is deemed sufficient by the commission, the commission shall initiate a preliminary inquiry into any alleged violation of chapter two hundred and sixty-eight A or this chapter. At the beginning of a preliminary inquiry into any such alleged violation, the general counsel shall notify the attorney general of such action. All commission proceedings and records relating to a preliminary inquiry or initial staff review to determine whether to initiate an inquiry shall be confidential, except that the general counsel may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. The general counsel shall notify any person who is the subject of the preliminary inquiry of the existence of such inquiry and the general nature of the alleged violation within thirty days of the commencement of the inquiry.

(b) If a preliminary inquiry fails to indicate reasonable cause for belief that this chapter or said chapter two hundred and sixty-eight A has been violated, the commission shall immediately terminate the inquiry and so notify, in writing, the complainant, if any, and the person who had been the subject of the inquiry. All commission records and proceedings from any such preliminary inquiry, or from any initial staff review to determine whether to initiate an inquiry, shall be confidential.

(c) If a preliminary inquiry indicates reasonable cause for belief that this chapter or said chapter two hundred and sixty-eight A has been violated, the commission may, upon a majority vote, initiate an adjudicatory proceeding to determine whether there has been such a violation.

(d) The commission may require by summons the attendance and testimony of witnesses and the production of books, papers and other records relating to any matter being investigated by it pursuant to this chapter or said chapter two hundred and sixty-eight A. Such summons may be issued by the commission only upon a majority vote of the commission and shall be served in the same manner as summonses for witnesses in civil cases, and all provisions of law relative to summonses issued in such cases, including the compensation of witnesses, shall apply to summonses issued by the commission. Any justice of the superior court may, upon application by the commission, in his discretion issue an order requiring the attendance of witnesses summoned as aforesaid and the giving of testimony or the production of books, papers and other records before the commission in furtherance of any investigation pursuant to the provisions of this chapter or said chapter two hundred and sixty-eight A.

(e) Any member of the commission may administer oaths and any member of the commission may hear testimony or receive other evidence in any proceeding before the commission.

(f) All testimony in a commission adjudicatory proceeding shall be under oath. All parties shall have the right to call and examine witnesses, to introduce exhibits, to cross-examine witnesses who testify, to submit evidence, and to be represented by counsel. Before testifying, all witnesses shall be given a copy of the regulations governing commission proceedings. All witnesses shall be entitled to be represented by counsel.

(g) Any person whose name is mentioned during an adjudicatory proceeding of the commission and who may be adversely affected thereby may appear personally before the commission on his own behalf, with or without an attorney, to give a statement in opposition to such adverse mention or file a written statement of such opposition for incorporation into the record of the proceeding.

(h) All adjudicatory proceedings of the commission carried out pursuant to the provisions of this section shall be public, unless the members vote to go into executive session.

(i) Within thirty days after the end of an adjudicatory proceeding pursuant to the provisions of this section, the commission shall meet in executive session for the purpose of reviewing the evidence before it. Within thirty days after completion of deliberations, the commission shall publish a written report of its findings and conclusions.

(j) The commission, upon a finding pursuant to an adjudicatory proceeding that there has been a violation of said chapter two hundred and sixty-eight A or a violation of this chapter, may issue an order requiring the violator to:

(1) cease and desist such violation of said chapter two hundred and sixty-eight A or this chapter;

(2) file any report, statement or other information as required by said chapter two hundred and sixty-eight A or this chapter; or

(3) pay a civil penalty of not more than two thousand dollars for each violation of this chapter or said chapter two hundred and sixty-eight A.

The commission may file a civil action in superior court to enforce such order.

(k) Any final action by the commission made pursuant to this chapter shall be subject to review in superior court upon petition of any party in interest filed within thirty days after the action for which review is sought. The court shall enter a judgment enforcing, modifying or setting aside the order of the commission or it may remand the proceedings to the commission for such further action as the court may direct.

SECTION 6. This act shall take effect upon its passage and, except with respect to any violation of section twenty-three of chapter two hundred and sixty-eight A of the General Laws, it shall apply to all complaints, inquiries, investigations and adjudicatory proceedings which were pending before the state ethics commission as of July ninth, nineteen hundred and eighty-five or which were filed or initiated after such date. With respect to any violation of said section twenty-three, the commission shall exercise jurisdiction of any violation occurring on or after the `t( effective date of this act.