The Code of Conduct
Section by Section
Respecting and honoring the public trust placed in those who work in state government is an issue of paramount importance. In order to ensure that state managers and employees are cognizant of their obligations and have full understanding of the implications of their actions and/or omissions, the Executive Office for Administration and Finance is issuing a Code of Conduct for managers and non-union employees. This Code is similar to a number of Codes which affect union employees, as included in applicable collective bargaining agreements.
The Code serves as a guide to educate covered personnel to understand the kinds of situations that may arise both inside and outside of the workplace and provides specific information concerning violations of the Code and the resulting penalties. It is essential that each covered employee receives a copy of the Code and is instructed to read it and request clarification in cases where the employee is unsure of a Code provision. Please pay particular attention to section 3.01 (e) which discusses the Receipt Form to be signed by all managers and employees covered by the Code, attesting to their understanding and acceptance of the Code.
The Code of Conduct is divided into sections as described below:
SECTION 1 provides definitions for some of the terms used in the Code.
SECTION 2 establishes the legal authority for the issuance of the Code.
SECTION 3 explains the General Rules that apply to the Code, including applicability, scope, requirements of knowledge of the code for managers and affected employees, the effect of the code, distribution of copies of the Code, and the effective date.
The section also requires conformity to the law, and to the policies, procedures, and directives of the agency. It sets out standards for conduct, attitude, and demeanor. It requires response to administrative inquiries and, where required, prompt adherence to State Ethics Commission Financial Disclosure requirements.
SECTION 4 covers conflicts of interest, and conforms to the Commonwealth’s Conflict of Interest Law, Chapter 268A.
SECTION 5 sets out standards of conduct, and is closely related to Chapter 268A. It quotes Chapter 268A in several instances, and gives guidance to managers and employees as to the conduct which is prohibited and conduct which is permitted.
SECTION 6 sets out rules regarding gifts and gratuities, and addresses, with specificity, those limited instances where the acceptance of items, food, or services is permitted.
SECTION 7 governs outside employment and business activity, addressing not only possible conflict of interest concerns, but those of loyalty and duty to the Commonwealth. It includes the issue of bribery and the duty to report violations of law and the Code to one’s agency head.
SECTION 8 addresses miscellaneous issues, including the making of false statements in the course of one’s employment, referrals to professional persons or agencies in the private sector, the requirement of referring public record requests to agency heads or designees, the prohibition of drug or alcohol intoxication on the job, prohibition of the possession of any weapon with improper intent, the proper and improper use of departmental identification cards, badges, or other official identification items, prohibited political activities, testimonial dinners, and the addressing of legislative requests.
Any questions that arise concerning the content or application of this Code may be directed to: William Appel, Human Resources Division, Legal Department, Ashburton Place, 2nd Floor, Boston, MA. Phone: 727-3555, ext. 214.
1.00 Definitions 1
2.00 Regulatory Basis 2
3.00 General Rules 3
4.00 Conflict of Interest 9
5.00 Standards of Conduct 11
6.00 Gifts and Gratuities 13
7.00 Outside Employment and Business Activity 17
8.00 Other Standards of Conduct 22
As used in this Code, the following terms have these meanings unless the context requires otherwise:
“Administrative inquiries” - means questions about the operation of the agency/department which the employee has been directed to answer by his or her appointing authority or that authority’s designee.
“Disciplinary action” - means any action taken by the appointing authority to discipline an employee. Where applicable, the action may be required to conform to civil service law.
“Employees” - means any manager or employee on the current personnel roster of the agency/department whose employment is not subject to a collective bargaining agreement. This shall include those employees who are on any form of leave of absence and employees who are serving suspensions.
“Immediate family” - means the employee and his or her spouse and their parents, children, brothers and sisters.
“Nominal value” - means monetary worth not exceeding twenty-five dollars (25.00).
“Official act” - means any decision or action in a particular matter.
2.00 REGULATORY BASIS
This Code of Conduct is issued pursuant to the powers of the Commissioner of Administration, as set forth in Chapter 7, Section 4 of the General Laws, and in accordance with, but not limited to G.L. Chapter 268A, Opinions of the Attorney General, State Ethics Commission Rulings and applicable management rights provisions of any relevant collective bargaining agreements.
3.00 GENERAL RULES
3.01 (a) Applicability of Code
The Code applies to all managers and non-union employees of the Commonwealth, including those on any type of leave status (e.g., leave without pay, military leave, civic-duty leave, etc.).
Employees are required to conduct themselves ethically at all times during the employment relationship. An employee on unpaid leave is not exempt from the Code of Conduct.
(b) Scope of Code
This Code is not to be considered all-inclusive. The absence of specific published Rules of Conduct does not mean or imply that any act of misconduct tending to discredit an employee or the Commonwealth is condoned or permissible or would not result in disciplinary action, up to and including termination.
Employees should not assume that, just because certain types of unethical conduct are not specifically mentioned in the Code, that such conduct will not result in the immediate termination of their employment.
(c) Knowledge of Code
Each employee subject to this Code is required to know and understand the Code of Conduct and Rules contained herein, and to seek information from his or her appointing authority, the appointing authority’s designee, personnel office, or legal office in case of doubt or misunderstanding as to its application.
Decisions in personnel matters involving disciplinary action will be based on the presumption that each employee has familiarized himself or herself with this Code and that he or she is aware of the obligation to abide by it.
Ignorance of the Code is no excuse for violating the Code. An employee cannot avoid the consequences of violating the Code of Conduct by simply failing to read or comprehend the Code, and it is the responsibility of the employee to seek guidance when he or she does not understand any part of the Code.
(d) Effect of Code
Employees whose conduct does not conform to the Rules and guidelines contained in this Code may be subject to disciplinary action up to, and including, termination. Any disciplinary action taken will conform to civil service law, if applicable.
An appointing authority is not required to impose progressive discipline for violation of the Code, nor is there a right to a hearing if the employee’s employment is terminated for violation of the Code, unless an employee is entitled to hearing rights under civil service law.
(e) Distribution of Code
Each appointing authority or his or her designee will see that each employee receives a copy of this Code. Employees will acknowledge receipt of the Code by signing a Receipt of Code of Conduct Form in the space provided. In each instance, the signed Receipt Form will be returned to the employee’s appointing authority or his or her designee within ten days of the employee’s receipt of the Form, and filed in the employee’s personnel folder. The employee’s signature on the Receipt Form is notice of his or her obligation to familiarize himself or herself with the contents of the Code of Conduct and to abide by it.
By signing the Receipt Form for the Code, employees are attesting to the fact that they have read or will read the Code and either understand the Code or have sought or will seek help on those parts they do not understand. Employees cannot later claim that they didn’t know what the Code requires or that they did not understand the Code.
Each appointing authority or his or her designee will be responsible for providing accurate information and guidance to his or her employees with regard to the specifics of the Code and shall, when necessary, offer training sessions on the Code to his or her employees as the need arises.
If employees make inquiries to appointing authorities about the Code, those appointing authorities have an obligation to make sure the employee is given accurate information. If necessary, the appointing authority will train employees about the Code.
(f) Effective Date of Code
The effective date of this Code shall be ten days after the copies of it and the Code of Conduct Receipt Form are distributed to employees.
(g) Failure to Sign Receipt Form
If an employee willfully or negligently fails to sign and return the Receipt Form within ten days after receiving the Code and the Form, he or she will be subject to disciplinary action, up to, and including, termination of employment.
Employees are not permitted to refuse to sign the Receipt Form. If they do, or if they attempt to avoid signing the Receipt Form by alleging that they didn’t receive a copy, or that they forgot to return the Form, or that they didn’t have an opportunity to return the Form, they may be subject to discipline, including firing. The reading of the Code and signing of the Form is not a trivial matter, and refusing to sign the Form will be dealt with severely. It is the responsibility of the employee to read the Code and return the Form to the appointing authority. It is recognized that there may be instances when employees may not be able to sign the Form, such as when they are on extended illness leaves or other authorized leaves. However, they should sign the Form as soon as they can after returning from the leave.
3.02 Conformance to Laws
Employees shall obey the laws of the United States and the Commonwealth of Massachusetts. Any employee who is convicted of a crime relating to his or her employment shall be subject to disciplinary action prescribed or permitted by this Code.
If an employee is convicted of any crime which has anything to do with his or her employment, he or she may be disciplined under the Code. Public employees are under an obligation to obey the law scrupulously.
Any employee who has been indicted or arrested for a serious crime supported by a judicial finding of probable cause in a preliminary hearing when the nature of the charge with its attendant publicity reasonably gives rise to legitimate fear for the safety of other employees, the property of the Commonwealth, or jeopardizes the public trust in the ethical standards of agency/departmental employees or undermines trust in the integrity of the Commonwealth’s system of tax administration or the administration of other laws of the Commonwealth, may be subject to suspension without pay and/or loss of other employee benefits, pending resolution of the case. Such suspension will conform to the requirements of G.L. Chapter 30, §59, if applicable.
If an employee is arrested or indicted, and a clerk-magistrate, magistrate, judge or grand jury finds that there is probable cause to believe that the employee committed a crime which could legitimately cause fear for the safety of other employees or of harm to the property of the Commonwealth, or that the integrity of the employee’s department might be harmed, or that the tax system has been ignored or corrupted, the employee may be suspended without pay until the criminal charges are resolved .
If the employee is found guilty, further disciplinary action, including termination, may be taken if the crime was related to his or her employment. If the employee pleads nolo contendere, has his or her case continued without a finding, is granted immunity from prosecution, or has his or her case filed, the appointing authority shall comply with the requirements of G.L. Chapter 30, §59, including the payment of all compensation or salary for the period of suspension. However, the appointing authority may then take such action as is deemed appropriate under the circumstances, including termination. If the employee is found not guilty, or the case is nolle prosequi or dismissed for any reason other than a technical or procedural reason, the employee shall be immediately reinstated to employment retroactive to the date of suspension without loss of wages or other employee benefits, unless the appointing authority has performed, or had performed, a separate investigation into the conduct of the employee and has determined, by a preponderance of the evidence, that the employee is likely responsible for the conduct alleged in the criminal complaint or any other conduct that would be a violation of this Code. The appointing authority is not precluded from investigating the charges against the employee on its own authority, and may take such reasonable action as it deems appropriate in light of the evidence it has available to it, notwithstanding any finding of the court as to the criminal culpability of the employee.
If an employee does not contest charges brought against him or her, or his or her case is continued without a finding upon his or her admitting to sufficient facts to make a finding of guilty, or is granted immunity from prosecution in exchange for testimony, or his or her case is placed on file, he or she may be disciplined, up to, and including, termination from employment, if the case was related in any way to the performance of his or her official duties. Employees have certain statutory rights pursuant to G.L. Chapter 30, §59, but those rights do not include a guarantee of continued employment.
If the employee is found not guilty, or the prosecution officially decides not to prosecute the case, or the case is dismissed for a reason which is not technical or procedural, the employee must be reinstated to his or her title and the reinstatement is retroactive to the date of the suspension. The employee’s rights and benefits must be restored to the status existing before the suspension. However, if the appointing authority has instituted a separate investigation, and determines that the evidence, more likely than not, shows to the satisfaction of the appointing authority that the employee is guilty of the offense charged or any other offense which would be a violation of the Code, the appointing authority may take such action as it deems necessary, up to, and including, termination of employment. The criminal prosecution requires a finding of guilty beyond a reasonable doubt. The appointing authority is not required to apply that standard in its investigation.
3.03 Conformance to Policies, Procedures and Directives
Employees shall comply with all of the policies and operating procedures of the agency/department in which they work. Employees shall respond forthrightly to the work-related directives of their supervisors or superiors.
Employees must follow all policies and operating procedures of their workplace. Employees must follow the instructions of their supervisors fully, promptly, and efficiently. Employees are not permitted to determine for themselves which policies they will follow or fail to follow. Employees are under an obligation to follow instructions of supervisors.
3.04 Conduct, Attitude and Demeanor
Employees are expected to conduct themselves in their official relations with the public and with their fellow employees in a manner which will enhance public respect for, and confidence in, the employee and in the Commonwealth as a whole. They must not only perform their duties in a wholly impartial manner, but must avoid any conduct which gives the reasonable basis for the impression of acting otherwise. Specifically, all employees shall avoid any action which may result in or create a reasonable basis for the impression of:
(a) using public office for private gain;
(b) giving preferential treatment to any citizen;
(c) making work-related decisions contrary to agency/departmental policy; or
(d) using one’s official position to harass or intimidate any person or entity.
Employees must treat all members of the public and fellow employees in a manner which will not give even the slightest hint of dishonesty or favoritism. They must not be seen to deviate from agency policy to unjustly benefit or harm any individual. They must never use their official positions or powers for personal reasons. Those powers and duties are granted for the benefit of the Commonwealth and the public, not for the gratification of the employee.
3.05 Administrative Inquiries
Employees must respond promptly and fully to administrative inquiries when directed to do so.
If a supervisor directs an employee to respond to an administrative inquiry, the employee is obligated to answer the inquiry in a timely and complete manner. Incomplete or inaccurate reporting, or failing to report on time, is not acceptable and may be the subject of disciplinary action.
3.06 State Ethics Commission Financial Disclosure Requirements
Employees who are required to file a “Statement of Financial Disclosure” with the State Ethics Commission, under the provisions of G.L. Chapter 268B, shall do so in a timely manner as prescribed by the State Ethics Commission. Willful failure to make any requisite disclosure, or the willful falsification of any statement, may be the subject of disciplinary action by the department or agency, in addition to any other penalties prescribed by law. The appointing authority will notify each employee who is required to file such a statement.
The filing of financial disclosure statements is not optional. Late filing of statements is not permitted. Complete and timely financial disclosure statements are tools that protect the reputation of the agency and the employee. Inclusion of any false information, or any attempt to hide information, may result in termination.
4.00 CONFLICT OF INTEREST
The necessity for the fair and impartial administration of state government and the enforcement of its laws makes the avoidance of any conflict of interest of primary importance. A conflict of interest is a situation in which an employee’s private interest, usually financial, conflicts or raises a reasonable question of conflict with his or her official duties and responsibilities.
When an employee’s interests compete with the Commonwealth’s or the Public’s interests, the Commonwealth’s or the Public’s interests take precedence, even if that means the employee might be disadvantaged or inconvenienced. Employees must not use their office for personal gain in any manner. An employee’s salary and benefits are the only legitimate expectations of financial reward that an employee has for the performance of his or her duty.
Chapter 268A of the General Laws provides criminal and civil penalties for conflict of interest violations. The following two general categories of prohibitions are to be used as guidelines. (Chapter 268A of the General Laws contains specific details).
(a) No employee may request or receive, in any manner whatsoever, except from the Commonwealth, compensation or anything else of value: (i) for performance of his or her duties; or (ii) for influencing or appearing to influence such performance.
Employees must not accept money or anything of value from anyone, or the promise of money or anything of value, other than from the Commonwealth, for the performance of their duties or the failure to perform their duties. This is basic public policy, and every employee should be on his or her guard to recognize an attempt to influence the performance of his or her duties by the giving of money or gifts.
(b) No employee may participate in any matter relating to any entity in which, to his or her knowledge, the employee, or a member of his or her immediate family, or his or her business partner or any business organization in which he serves as an officer, director, trustee, or employee, or any person or organization with whom he or she is negotiating or has any arrangement concerning prospective employment, has a financial interest.
An employee must not take any action in his or her official capacity which would affect his or her financial interest, that of a close family member, or a person or organization with whom he or she has a business relationship, or any person or organization with whom he or she is seeking employment, in any way, if the employee knows of the relationship.
Employees have an obligation scrupulously to avoid the potential conflicts of interest which exist in their employment. If their duties require them to participate in a particular matter in which they have a financial interest, they have a duty to disclose and report promptly the existence or possible existence of a conflict of interest to their appointing authority and the State Ethics Commission. The appointing authority has the responsibility to determine whether there should be a transfer to another employee of any case which involves them, their immediate family, or any person with whom or entity in which they have some personal or financial involvement, or whether the appointing authority should assume responsibility for the particular matter, or whether to issue a written determination that the interest is not so substantial as to affect the integrity of the employees.
Employees have a positive duty to avoid even the appearance of a conflict of interest between their personal interests and that of the Commonwealth and the Public. If they think there might be the slightest possibility of a conflict of interest between themselves, their families, their business associates, or their business interests, and the interests of the Commonwealth, they must report the possibility to their immediate supervisor, and request a transfer of those responsibilities to another employee.
Employees have a right under law to have any question relating to a possible conflict of interest confidentially reviewed and decided by the State Ethics Commission. Information regarding the filing of a conflict of interest request with the State Ethics Commission is available from the agency head or his or her designee or from the Commission directly.