January 19, 1990 Number 4

January 19, 1990 Number 4 William A. Delahunt District Attorney, Norfolk County P.O. Box 309 360 Washington Street Dedham, Massachusetts 02026 Dear District Attorney Delahunt: You have requested my opinion whether the so-called "Testimonial Dinner Law" prohibits the solicitation of money for a campaign fund-raising event on behalf of a candidate for public office who is employed as an assistant district attorney.' The Testimonial Dinner Law, G.L. c. 268, § 9A (1988 ed.), provides a criminal penalty for persons who solicit money for a "testimonial" of any kind on behalf of someone who is employed in any state or local "law enforcement, regulatory or investigatory" agency.- Your concern appears to be that many campaign fund-raising events, while not promoted as "testimonials" or in similar terms, nevertheless involve expressions of tribute to the candidate or to his or her past achievements. You have asked whether solicitations for all such campaign events would run afoul of section 9A. For the reasons set forth below, I conclude that a campaign fund-raising event is not a "testimonial" within the meaning of the Testimonial Dinner Law merely because it involves expressions of tribute to the candidate. I further conclude that whether a particular campaign event is a "testimonial" will depend on its purpose and how it is promoted, and I offer some general guidelines for compliance with section 9A. Since the term "testimonial" is not defined in chapter 268, the ordinary mean- ing of that term must serve as the primary indicator of its meaning. See Bronstein V. Prudential Insurance Company of America, 390 Mass. 701, 704 (1984). The American Heritage Dictionary (2d College ed. 1985) defines a testimonial as "[sjomething given as a tribute for a person's service or achievement." Similarly, Webster's New World Dictionary (2d College ed. 1978) defines a testimonial as "something given or done as an expression of gratitude or appreciation." It is true that a campaign fund-raising event may involve expressions of grati- tude or tribute to the candidate. A speech, for example, which is given in support of a candidate's bid for office will generally extol the candidate's virtues and praise his or her achievements. Nevertheless, the essential purpose of most campaign fund-raising events is not to honor a person for his or her past achieve- ments but to further the political future of the candidate. A campaign fund- raising event, therefore, the primary focus of which is to promote a political candidacy rather than to honor the candidate, does not fall squarely within the definition of "testimonial." See 1965/66 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 369-370 (1966) (looking to primary purpose of an event to determine whether it was a "testimonial" and determining that the sale of tickets to an event at which presen- tation of an award to a public law enforcement employee was "merely an incidental part of the evening" would generally not violate the Testimonial Dinner Law). I recognize that campaign fund-raising by public employees could be subject to abuse of the kind sought to be prevented by the Testimonial Dinner Law. A 1963 P.D. 12 27 Opinion of the Attorney General has identified two main objectives of section 9A. "One is to remove persons in the public service in any of the described categories in the statute from any suspicion of being influenced in any way because of the sponsorship, purchase of tickets, attendance or non-attendance at such affairs. The other is to relieve the public from the actual and implied pressures to purchase dinner tickets imposed knowingly or unknowingly by the honored guest or persons sponsoring such affairs." 1962/63 Op. Att'v Gen., Rep. A.G., P.D. No. 12 at 110, 111 (1963). Although these objectives might be further served were section 9A to cover all campaign fund-raising events which involved words of tribute to the candidate, the ordinary meaning of the word "testimonial" simply does not, as 1 have already discussed, encompass all such events. Moreover, even were there some uncer- tainty as to the scope of the word "testimonial," 1 would be required, given the penal nature of section 9A, to adhere to the rule that "penal statutes must be construed strictly and not extended by equity, or by the probable or supposed intention of the legislature as derived from doubtful words." Collates v. Boston Retirement Board, 396 Mass. 684, 686-687 (1986) (quotations and brackets omit- ted). See 1964/65 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 275-276 (1965). Strictly construed, the word "testimonial" clearly does not apply to the typical campaign fund-raising event merely because words of tribute are spoken. In any case, the dangers inherent in political fund-raising on behalf of public employees have not gone unaddressed by the Legislature. Campaign fund-raising is subject to regulation under the terms of another statute, chapter 55 of the General Laws. Section 9A, therefore, cannot be read in isolation, but must be read, if possible, in conjunction with chapter 55 so as to constitute an harmonious whole consistent with its legislative purpose. See Registrar of Motor Vehicles v. Board ofAppeal on Motor Vehicle Liability Policies and Bonds, 382 Mass. 580, 585 ( 1981). A review of chapter 55 further supports the conclusion that sections 9A was not intended to prohibit all campaign fund-raising events which in any way involve expressions of tribute to a candidate. Chapter 55 is a generally comprehensive statute regulating the financing of political campaigns. In that chapter, the Legislature has evinced a desire to permit public employees to run for public office without having to resign their employment and to permit political committees organized on their behalf to raise funds for that purpose. See G.L. c. 55, § 13 (prescribing how funds may be raised on behalf of public employees). See also Director of the Oflftce Campaign and Political Finance Advisory Opinion No. 88- 1 6 ("A public employee is not required to relinquish his or her employment with the Commonwealth in order to seek elected office").^ If campaign fund-raising events which in any way paid tribute to a political candidate were "testimonials" and thus prohibited by section 9A. it is fair to say that campaign fund-raising on behalf of the public employees described in section 9A would be severely hampered. Given the legislative intent expressed in chapter 55 that public employees be permitted to run for public oflRce and raise campaign funds through their political committees, I do not believe that the Legislature in enacting section 9A could have intended to achieve such a result. Indeed, had the Legislature wished to so severely restrict the campaign fund-raising activities on behalf of the huge subset of public employees covered by section 9A, it would have done so in plainer terms.^ 28 H.L). 12 Instead, I conclude that the Legislature in enacting section 9A intended to prohibit fund-raising for "testimonials" in the ordinary sense of that term, that is, events held in honor of a person's past achievements, including such events as retirement dinners or tributes for years of public service. See, e.g., 1964/65 Op. Att y Gen.. Rep. A.G., P.D. No. 12 at 275 (1965). It did not intend to prohibit all campaign fund-raising events which incidentally involved tributes to the candi- date through campaign speeches and the like. As to the dangers either that campaign contributors could bring undue influ- ence to bear on public employees running for office, or that persons raising money on behalf of public employees could exert undue pressure in soliciting campaign funds, the Legislature has, through chapter 55, provided numerous safeguards.'' It is to these restrictions that campaign fund-raising events are generally subject, and solicitations for such events do not violate the Testimonial Dinner Law provided the campaign purpose of the event is clearly and prominently disclosed and the trappings of a "testimonial" are avoided. Whether a given solicitation of funds for a campaign event would violate the Testimonial Dinner Law depends, of course, on the facts of the individual case. In order to avoid a violation of section 9A, it is imperative that solicited funds actually be used exclusively for campaign rather than personal purposes.'^ More- over, the manner in which the event is promoted by persons orally soliciting funds or on printed advertisements or tickets must make clear that the purpose of the event is to promote the political candidacy of the person on whose behalf the event is organized. Thus, in order to steer clear of a section 9A violation, promotions for the event as well as actual solicitations of funds should clearly and prominently advertise the event as a campaign event, the purpose of which is to promote a political candidacy and the proceeds of which are to be exclusively used for campaign purposes. Conversely, all advertisements and solicitations should avoid use of words like "testimonial," "retirement dinner," or other language which might suggest that the event is primarily tributary in character or which might tend to obscure the campaign purpose of the event. See, e.g. , 1965/66 Op. Att'y Gen.. Rep. A.G., P.D. No. 12 at 369-370 (1966) (manner in which event is promoted on tickets and advertisements is a prime factor in determining whether event is a "testimo- nial"). Provided these guidelines are followed in letter and in spirit, the mere fact that an event will include speeches which urge support for the candidate by praising the candidate and his or her achievements will not render that event a "testimonial." In sum, therefore, I conclude that a campaign fund-raising event is not a "testimonial" for the purposes of G.L. c. 268, § 9A, merely because it involves expressions of tribute to the candidate on whose behalf it is organized, and that solicitations for a campaign fund-raising event which conform to the guidelines set forth in this opinion would not violate the Testimonial Dinner Law. Very truly yours, JAMES M. SHANNON ATTORNEY GENERAL P.D. 12 29 ' I offer my opinion pursuant to G.L. c. 12, § 6, which authorizes me to provide legal advice and opinions to the district attorneys on matters pertaining to their official duties. The Testimonial Dinner Law is a criminal statute, violations of which are within your official duties to prosecute. I have been informed, moreover, that there is widespread uncertainty as to the applicability of this law to campaign fund-raising events. It is, therefore, particularly appropriate for me, as the Commonwealth's chief law officer, to give an opinion on this matter. - General Laws c. 268, §9A, provides as follows: No person shall sell, offer for sale, or accept payment for, tickets or admissions to, nor solicit or accept contributions for, a testimonial dinner or function, or any affair, by whatever name it may be called, having a purpose similar to that of a testimonial dinner or function, for any person, other than a person holding elective public office, whose office or employment is in any law enforce- ment, regulatory or investigative body or agency of the common- wealth or any political subdivision thereof. Whoever violates any provision of this section shall be punished by a fine of not more than five hundred dollars. ^ It is, of course, the intent of the Legislature that enacted section 9A which I seek to determine. In 1962, when section 9A was enacted {see St. 1962, c. 633), the provision of chapter 55 concerning fund-raising by public employees was then codified as G.L. c. 55, § 11 {see St. 1954, c. 644). Section 1 1, as does its present day counterpart section 13, prohibited public employees from themselves soliciting funds, directly or indi- rectly. Although section 11 did not then (as section 13 does now) expressly permit political committees to solicit contributions on the candidate's behalf, that permission was implicit. See 1964/65 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 112-116 (1964) (interpreting related section of chapter 55 prohibiting public employees from "di- rectly or indirectly" giving campaign contributions to public officeholders to implicitly permit the giving of contributions to political committees formed on behalf of those officeholders). In 1962, therefore, as now, chapter 55 both permitted public employees to seek elected office and provided a means for them to raise campaign funds. "• Section 9A applies to solicitations on behalf of all non-elective personnel in any state or local "law enforcement, regulatory or investigatory body or agency." G.L. c. 268, § 9A. This includes employees of the judicial branch, as well as "most departments, offices, boards and commissions of the State and its political subdivisions." 1962/63 Op. Att'y Gen., Rep. A.G., P.D. No. 12 at 110, 111-112 (1963). Moreover, employees are covered whether or not they actually perform duties directly concerned with the functions of the agency which place it in one of the categories described in the statute. W. at 111. ' For example, section 13 prohibits non-elective public employees from themselves soliciting campaign contributions. A political committee organized on behalf of the candidacy of a public employee may not solicit or receive money from any person who the candidate "knows or has reason to know . . . has an interest in any particular matter in which [he or she] participates or has participated ... or which is the subject of his [or her] official responsibility." G.L. c. 55, § 13. Sections 16, 16A, and 17 protect public employees and persons doing business with the Commonwealth from pressures 30 p.D. 12 to contribute to political campaigns. General provisions of chapter 55 also set limits upon how contributions may be made, how much may be given, and by whom. See. e.g. G.L. c. 55. §§6-11, 13, 15, 16. In addition, extensive reporting requirements concern- ing political contributions ensure that contributions will be open to public scrutiny. See G.L. c. 55. §§ 18,25. '^ I stress, however, that the fact that solicited funds are to be used only for campaign purposes cannot alone be determinative of whether a violation of section 9A has occurred. It is the act of solicitation that section 9A addresses, and a solicitation which did not clearly and prominently identify the campaign purpose of the event would, in my view, violate section 9A even though the funds raised were actually used for campaign purposes and reported to the Office of Campaign and Political Finance as required by chapter 55. See G.L. c. 55, § 1, "Contribution," and § 18 (requiring the reporting of campaign funds raised through any means, "including testimonials"). P.D. 12 31