November 8, 1994

FACTS:


The Governor's Advisory Commission on Domestic Violence
("Advisory Commission") was established in July, 1993, pursuant to
Executive Order No. 357. It succeeded the Domestic Violence Policy
Group ("DVPG") created in 1992 by Executive Order No. 334. The
Advisory Commission's work was broadened from that of DVPG to
include the response of the health, human services, educational and
business communities, as well as law enforcement and the judiciary,
to the problem of domestic violence. The Advisory Commission is
charged with preparing recommendations regarding domestic violence,
evaluating the success of state agencies and other public entities
in responding to domestic violence victims, and recommending policy
initiatives to improve services for victims and batterers. The
Executive Order does not specify a formal work product to be
prepared or completed by the Advisory Commission. The Governor and
executive branch agencies are not required to adopt or implement
any of the Advisory Commission's recommendations.

Under the Executive Order, the Advisory Commission is
comprised of the Lieutenant Governor or his designee, the Secretary
of Public Safety or her designee, the Secretary of Health and Human
Services or his designee, and at least one representative from each
of the following: the Attorney General's Office, the district
attorneys, victims' assistance agencies, police departments,
certified batterers' treatment programs, the Trial Court and such
other members as the Governor may appoint. At this time, the
Advisory Commission includes the Commissioner of the Department of
Probation, the Commissioner of Public Health, the Secretary of
Education, several legislators, advocates for the victims of
domestic violence and several service providers. The inclusion of
"private members" (i.e., victim advocates and service providers) is
designed to give the Advisory Commission a fuller understanding of
and appreciation for the unique issues facing providers of services
to both batterers and their victims. These private members provide
the Governor with opinions and expertise which is not otherwise
available within the Executive Branch.

The Executive Order designates the Lieutenant Governor as
Chairman of the Advisory Commission. There is no fixed number of
members, term of service, or required number of meetings per year.
Members serve at the discretion of the Governor. The order
specifies no voting protocol. In practice, the Commission has made
recommendations based on a simple majority of those present, and
has no established quorum. Several subcommittees have been
established, and a number of interested parties who have not been
officially appointed are participating in the work of the
subcommittees. Parties who have previously worked with the
subcommittees include executive branch employees who have been
called upon to lend their expertise to the subcommittees, other
interested public employees such as district attorneys and state
and local police, and private individuals such as advocates and
victims. The Executive Director of the Advisory Commission, which
is not a formal position, is a state employee. None of the
"private members" of the Commission are compensated for their work
or reimbursed for their expenses, nor do they expend or control
public funds as members of the Advisory Commission.

Recently, the Advisory Commission has become increasingly
active in providing recommendations to a wide range of governmental
bodies on issues involving domestic violence. These
recommendations have focused on developing legislation, policies
and programs to coordinate better the work between the criminal
justice system and the social service programs. The following is
a summary of these recent activities:

(1) Batterers' Treatment Subcommittee: This subcommittee,
co-chaired by the Commissioner of the Department of Public Health
("DPH"), has been reviewing the guidelines for the certification of
batterers' treatment programs by DPH. Pursuant to the Abuse
Prevention Act, 1990 Mass. Acts c. 403, a special judicial
commission was created to develop batterers' treatment program
certification standards and guidelines. The initial set of
guidelines provided that DPH could develop additional guidelines
and could amend the current ones. Under c. 403 of the Acts of
1990, DPH has ongoing responsibility for certification and
monitoring of batterers' treatment programs. Working with the
Women's Health Division of DPH and with the Advisory Commission
Subcommittee, DPH has developed a set of proposed amendments to the
current guidelines and DPH will be holding public hearings before
finalizing the guidelines.

(2) Transition Subcommittee: This subcommittee has developed
draft guidelines for visitation centers. The guidelines, which are
general in nature, include recommendations for the training of
personnel and standard procedures for dealing with victims and
batterers. In addition, the Subcommittee will review a needs
assessment study conducted by Abt Associates on behalf of the
Department of Social Services ("DSS").[1] That study identifies
the most pressing

Page 598

needs in shelters and related service programs. The Subcommittee
will evaluate, research and develop programmatic recommendations
concerning gaps in services, which, pursuant to outside section 51
of Chapter 126 of the Acts of 1994 (the final supplementary
appropriations bill for fiscal year 1994),[2] will be forwarded to
the House and Senate Committees on Ways and Means.

(3) Uniform Enforcement Subcommittee: This subcommittee has
drafted and circulated suggested guidelines for district attorneys
in handling domestic violence cases. The Subcommittee has
incorporated into its draft guidelines comments it has received
from the district attorneys. In addition, the Subcommittee has
prepared guidelines for police in responding to domestic violence
incidents, including standardized report forms and investigation
checklists.[3] This work has involved the Domestic Violence Unit of
the State Police. Both sets of guidelines have been approved by
the Advisory Committee and are being forwarded to district
attorneys and local police departments to use at their own
discretion.

(4) Legislation Subcommittee: This subcommittee has reviewed
all legislation relative to domestic violence, and has presented an
overview to the Advisory Commission. Based on the Subcommittee's
recommendations, the Advisory Commission has endorsed a number of
legislative initiatives. The Advisory Commission's endorsement was
cited by the Administration in an effort to gain passage of
legislation. Subcommittee members have also worked on draft
legislation regarding long-term housing assistance for victims of
domestic abuse.

(5) Community Education Subcommittee: This subcommittee is
preparing recommendations on violence in teen dating. These
recommendations will likely focus on the role of the Executive
Office of Education ("EOE") in assisting schools to prevent dating
violence. For example, the Advisory Commission may recommend that
the EOE provide schools with information concerning programs and
services on teen dating violence.

(6) Other Advisory Commission Projects: The Advisory
Commission is involved in serving as a clearinghouse for "best
practices" and new initiatives to combat domestic violence. Using
funding from the Massachusetts Commission on Criminal Justice
("MCCJ"), the Advisory Commission and the MCCJ have produced and
distributed a domestic violence newsletter.[4] Finally, the
Advisory Commission has made recommendations to the Governor
concerning Administration budget requests.

 


QUESTIONS:


1. Will Advisory Commission members, who are not otherwise
state employees (so-called "private members"), be considered
special state employees for purposes of the conflict of interest
law?

2. If yes, what limitations will G.L. c. 268A place on the
activities of those Advisory Commission members?
 


ANSWERS:


1. Yes, private members will be considered special state
employees.

2. As special state employees, the private activities of
private members will be restricted by the conflict of interest law
in a limited manner as detailed below.

 


DISCUSSION:


1. Jurisdiction


For purposes of the conflict of interest law, a state employee
is defined as "a person performing services for or holding an
office, position, employment, or membership in a state agency,[5]
whether by election, appointment, contract of hire or engagement,
whether serving with or without compensation, on a full, regular,
part-time, intermittent or consultant basis, including members of
the general court and executive council." G.L. c. 268A, s.1(q).

As we recently stated in EC-COI-93-22, we examine four factors
in determining whether an advisory committee will be considered a
state agency or instrumentality thereof. Those factors are:

1) the impetus for the creation of the committee (whether
required by statute, rule, regulation or otherwise);

2) the degree of formality associated with the committee and
its procedures;

3) whether members of the committee perform functions or
tasks expected of government employees, or will they be
expected to represent outside viewpoints; and

4) the formality of the committee's work product, if any.
EC-COI-86-4; 86-5.

Examining the Advisory Commission in light of these four
factors, we begin by noting that the

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Advisory Commission was created by the Governor by executive order
as opposed to by statute, rule, or regulation. See EC-COI-83-21
(task force set up by governor on his own initiative, as opposed to
statutory requirement, was not a public entity); contrast EC-COI-
82-157
(advisory council established by G.L. c. 7, s.40M on a
permanent basis, rather than a temporary or ad hoc basis, resulted
in finding of state employee status for members). We have
previously been more inclined to find a public instrumentality
where a committee is a permanent and mandatory component to the
implementation of a state statute. See EC-COI-87-17 (Water
Resources Management Advisory Committee of the Department of
Environmental Quality Management established as a mandatory
committee under St. 1985, c. 592); 86-4 (Administrative Penalties
Advisory Committee mandatory and permanent committee pursuant to
state statute). Here, in contrast, the Advisory Commission exists
solely at the pleasure of the Governor and exists only so long as
he deems it necessary and useful. Thus, it is neither mandatory
nor permanent. However, this factor alone is not dispositive.

Our examination of the Advisory Commission in light of the
remaining factors leads us to conclude that its structure, and more
importantly, the tasks it performs, distinguishes it from the
council analyzed in EC-COI-93-22, which we determined to be
advisory in nature. We find that the Advisory Commission functions
with a higher degree of formality than traditional advisory
committees. Here, the Lieutenant Governor is designated by
Executive Order as the chairman. The Advisory Commission is
organized into various subcommittees, each of which functions to
carry out specific tasks. Although the Governor's Executive Order
does not specify the total number of members, it does require the
appointment of specific members, many of whom are public employees
who are statutorily required to devise and administer programs
regarding domestic violence. The Executive Order therefore
contemplates a committee with a particular structure. Finally, we
find significant that the Advisory Commission functions with the
assistance of an executive director, who is a state employee. In
contrast, the council in EC-COI-93-22 did not have members who were
otherwise employed by the Commonwealth. Moreover, that council did
not have a chair designated by the Governor, nor did it utilize the
services of a state employee as executive director.

We also find that the Advisory Commission members perform
tasks ordinarily expected of public employees, rather than serving
to represent outside viewpoints. See EC-COI-87-17; EC-COI-86-5
(advisory committee, set up to ensure that agency receives the
informed opinions of a broad spectrum of the local population
concerning the impact of an agency program, would not be public
instrumentality); contrast 86-4 (finding state agency status where
permanent committee's principal function is to assist in the
drafting of regulations, a task ordinarily engaged in by public
employees). In EC-COI-93-22, we found that members of an advisory
council principally served to provide the Governor with outside
viewpoints concerning the Massachusetts economy and the status of
industry in the Commonwealth. Here, not only are a significant
portion of the Advisory Commission members, as it is currently
constituted, otherwise employed by the Commonwealth,[6] but also,
in examining the functions of the Advisory Commission, we find
that, through subcommittees, the Commission performs tasks
ordinarily expected of public employees. Rather than merely
serving as a "sounding board" to provide the Governor with a
variety of outside viewpoints, the Advisory Commission was created
to address "a need to coordinate and integrate policy on all
aspects of domestic violence at the highest levels of state
government and to broaden the scope of the Commission's inquiry to
include the response of the health, human services, educational and
business communities."[7] Pursuant to the Executive Order, the
Advisory Commission is required to consider the need for further
legislation concerning domestic violence, evaluate on a continuing
basis the governmental (law enforcement, judicial, health and human
service systems) response to victims, consider further policy
initiatives to enhance interagency communication and cooperation,
and consider measures to prevent and reduce the incidence of
domestic violence through public education. These goals are
similar to those imposed on government agencies within the
Commonwealth. See St. 1990 c. 403, s.14-16. For example, the
Batterers' Treatment Subcommittee, which is chaired by the
Commissioner of DPH, is reviewing current guidelines for the
certification of batterers' treatment programs by DPH. DPH,
working with this Subcommittee, has prepared a set of proposed
amendments to the current guidelines. DPH is planning to hold a
public hearing on the guidelines before finalizing them. We note
that, pursuant to statute, DPH is charged with amending current,
and promulgating additional, guidelines. The work of the
Subcommittee on this issue amounts to working with the DPH on a
statutorily mandated task.

Similarly, the Transition Subcommittee planned to review a
needs assessment, conducted privately on behalf of DSS, which
identified the most pressing needs in shelters and related
services. Pursuant to s.51 of Chapter 126 of the Acts of 1994, the
Subcommittee would then evaluate the research, and develop
programmatic recommendations identifying gaps in

Page 600


service. These recommendations were required to be forwarded to
the House and Senate Committees on Ways and Means by October 1,
1994. We find that this statutory requirement constitutes
legislative recognition that the Advisory Commission (through its
subcommittees) performs tasks ordinarily expected of government
employees. Here, the Legislature has directed the Subcommittee to
perform a specific service and to report its results to the
Legislature by a particular date. Such a statutorily mandated
evaluation of state programs might otherwise be the responsibility
of DSS or other executive branch employees. Likewise, the Uniform
Enforcement Subcommittee, in creating law enforcement guidelines,
appears to be performing a task ordinarily expected of government
employees. This is because, pursuant to statute, the development
of domestic violence response guidelines would be the
responsibility of local law enforcement agencies themselves. See
St. 1990 c. 403, s.15
. We find that the services expected of the
subcommittees go well beyond merely providing a variety of private
viewpoints.

Finally, with regard to the work product of the Advisory
Commission and its subcommittees, we find significant formality.
For example, several subcommittees have drafted extensive
guidelines for use and implementation by various public agencies,
including DPH, the Commonwealth's district attorneys and state and
local police. In contrast, in EC-COI-93-22, the advisory council
analyzed various industries and crafted reports, but such reports
and the recommendations contained therein did not amount to polices
or programs which were readily adopted and implemented by executive
branch agencies. Here, the Advisory Commission's work product in
the nature of guidelines is specifically created with input from,
and for adoption by, public agencies.

Applying all of the foregoing factors, we conclude that
the Advisory Commission is an instrumentality of the Governor's Office.
With the exception of the Advisory Commission's discretionary
creation by Executive Order, we find that the Advisory Commission
functions in a manner resembling a governmental agency rather than
a mere "sounding board" to provide a variety of private viewpoints.
We therefore conclude that Advisory Commission members who are not
already state employees will be considered state employees for
purposes of G.L. c. 268A. However, because Advisory Commission
members are not compensated for their services, the "private
members" will be considered special state employees.[8]


2. Limitations Imposed by G.L. c. 268A


As special state employees, private members of the Advisory
Commission will be impacted by the conflict of interest law in a
less significant manner than those members who are otherwise
employed by the Commonwealth. Sections 4, 6 and 7 of G.L. c. 268A
are relevant in this case.


Section 4


Section 4(a) of G.L. c. 268A prohibits a state employee from
directly or indirectly receiving or requesting compensation from
anyone other than the Commonwealth or a state agency, in relation
to any particular matter in which the Commonwealth or a state
agency is a party or has a direct and substantial interest.
Section 4(c) prohibits a state employee from acting as agent or
attorney for anyone other than the Commonwealth or a state agency
in connection with any particular matter in which the Commonwealth
or a state agency is a party or has a direct and substantial
interest.

A special state employee is subject to the prohibitions of
s.4(a) and (c) only in relation to a particular matter (1) in which
he has at any time participated[9] as a state employee, or (2)
which is or within one year has been a subject of his official
responsibility,[10] or (3) which is pending in the state agency in
which he is serving. Clause (c) is applicable only to a special
state employee who serves on more than sixty days during a period
of three hundred and sixty-five consecutive days.

Under s.4(c), for example, a private member would be
prohibited from representing a private party before the Advisory
Commission, as such representation would be in connection with a
particular matter for which the Advisory Commission members have
official responsibility. However, private members will not be
precluded from appearing before state agencies other than the
Advisory Commission with regard to matters unrelated to the work of
the Advisory Commission. As for s.4(a), a private member could not
be privately compensated to prepare a report or other documents for
submission to the Commission or any of its subcommittees. See EC-
COI-93-5
(state employee may not receive private compensation for
making submissions to state agency). Again, we emphasize that the
s.4(a) restriction on compensation would apply only with regard to
matters before the Advisory Commission. A private member would not
therefore be prohibited from preparing documents for submission to
other state agencies. Other than the limited situation described
above,

Page 601

however, it is unlikely that a private member will receive private
compensation in relation to any particular matters in which he has
participated or which are under his official responsibility as an
Advisory Commission member, thereby avoiding issues under s.4(a).
Rather, we think that the Advisory Commission's tasks are more
likely to raise issues under s.6 of the conflict of interest law.


Section 6


Section 6 of G.L. c. 268A prohibits a state employee from
participating in a particular matter in which the employee, an
immediate family member, or a business organization in which he is
serving as an officer, director, trustee, partner or employee has
a direct or reasonably foreseeable financial interest. Under this
section, for example, a private member who is employed by a
"business organization" (even if a non-profit organization) would
be subject to the s.6 restriction to the extent that the Advisory
Commission takes up matters in which his employer has a direct and
immediate, or a reasonably foreseeable, financial interest.[11] We
note that s.6 requires a state employee to notify his appointing
authority in writing of the financial interest. The appointing
authority must then (a) assign the matter to another employee, (b)
assume responsibility for the matter, or (c) make a written
determination to be filed with the State Ethics Commission that the
interest is not so substantial as to be deemed likely to affect the
integrity of the services which the Commonwealth may expect from
the state employee. Copies of both the notification to the
appointing authority and the appointing authority's determination
must be forwarded to the State Ethics Commission.

Therefore, if a matter affecting the financial interests of a
private member, or the private organization by which he is
employed, is taken up by the Advisory Commission, that private
member must abstain, make a disclosure to the Governor and await
further instruction from the Governor concerning his participation.
For example, if the Batterers' Treatment Subcommittee is
considering whether or not to require a certain number of licensed
professional staff members for state certification of a treatment
program, a private member who is employed by an organization
providing such a treatment program will be subject to the s.6
restriction. Similarly, a s.6 issue may be raised if the
Transition Subcommittee is considering a plan to supplement current
shelter services through DSS contracts with private providers.
Under such a scenario, a private member who is employed by an
agency which is likely to seek such a state contract will need to
comply with the s.6 requirements. To the extent that a private
member is aware of matters likely to be taken up by the Advisory
Commission or one of its subcommittees, and in which his private
employer will have a reasonably foreseeable financial interest,
that member may desire to seek a determination in advance from the
Governor permitting his participation in those matters when they
arise.


Section 7


Section 7 prohibits a state employee from having a financial
interest, directly or indirectly, in a contract made by a state
agency, in which the Commonwealth or any state agency is an
interested party, unless an exemption applies. Section 7 is
implicated if a private member is to receive compensation that
derives from a contract with a state agency. As a special state
employee, however, such a private member may have an interest in a
state contract as long as the contract is with a state agency in
whose activities he neither participates nor has official
responsibility for as an Advisory Commission member. Where a
private member has a financial interest in a contract with a state
agency with which he has no dealings as a Commission member, the
s.7 prohibition may be overcome by filing with the Ethics
Commission a disclosure of the financial interest, in compliance
with an exemption contained in s.7(d). For example, s.7(d) would
be applicable where an Advisory Commission member employed by a
private university has a financial interest in a teacher training
contract between the university and the Department of Education
("DOE"). As long as the Advisory Commission does not participate
in or have official responsibility for the activities of DOE, a
disclosure pursuant to s.7(d) will overcome the s.7 prohibition.
In contrast, where a private member has a direct or indirect
financial interest in a contract with a state agency with which the
Commission closely works, such as DPH, the exemption provided by
s.7(e) must be utilized. In addition to a disclosure to the State
Ethics Commission, that exemption requires approval by the
Governor.[12]


-------------------------


[*] Pursuant to G.L. c. 268B, s.3(g), the requesting person
has consented to the publication of this opinion with identifying
information.

[1] Pursuant to G.L. c. 18B, s.2, DSS is required to provide
and administer temporary residential programs providing counseling
and supportive assistance for women in transition and their
children who, because of domestic violence, homelessness, or other
situations, require temporary shelter and assistance.

Page 602

[2] The outside section reads as follows:

The governor's domestic violence policy commission
transition subcommittee shall evaluate research regarding
the effectiveness of existing programs and their ability
to meet required standards, and gaps and services to
special needs populations such as cultural and linguistic
minorities, mentally ill and substance abusing battered
women, as well as teens in violent relationships and
develop program recommendations to address these needs.
Such evaluations shall be provided to the house and
senate committees on ways and means not later than
October first, nineteen hundred and ninety-four. St.
1994, c. 126, s.51.

[3] Pursuant to 1990 Mass. Acts. c. 403, s.15, each law
enforcement agency is required to adopt local guidelines for law
enforcement response to domestic violence. In addition, under G.L.
c. 209A, s.6, as amended by St. 1990, c. 403, s.7, upon
investigating an incident of domestic violence, police are required
to file a written incident report in accordance with local law
enforcement agency standards.

[4] Pursuant to G.L. c. 6, s.156, the MCCJ, among other
functions, is charged with encouraging and disseminating law
enforcement and criminal justice information.

[5] A state agency is defined as "... any department of a
state government including the executive, legislative or judicial,
and all councils thereof and thereunder, and any division, board,
bureau, commission, institution, tribunal or other instrumentality
within such department and any independent state authority,
district, commission, instrumentality or agency, but not an agency
of a county, city or town." G.L. c. 268A, s.1(p).

[6] Approximately 60% of the current Advisory Commission
members are state employees.

[7] Executive Order No. 357, July 8, 1993.

[8] "Special state employee," a state employee:

(1) who is performing services or holding an office,
position, employment or membership for which no
compensation is provided, or

(2) who is not an elected official and

(a) occupies a position which, by its classification in
the state agency involved or by the terms of the contract
or conditions of employment, permits personal or private
employment during normal working hours, provided that
disclosure of such classification or permission is filed
in writing with the state ethics commission prior to the
commencement of any personal or private employment, or

(b) in fact does not earn compensation as a state
employee for an aggregate of more than eight hundred
hours during the preceding three hundred and sixty-five
days. For this purpose compensation by the day shall be
considered as equivalent to compensation for seven hours
per day. A special state employee shall be in such a
status on days for which he is not compensated as well as
on days on which he earns compensation. G.L. c. 268A,
s.1(o).

[9] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s.1(j).

[10] "Official responsibility," the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action. G.L. c. 268A, s.1(i).

[11] We have previously decided that regulations themselves
are not particular matters, but that the decisions and
determinations made during the process of promulgation are
particular matters. See EC-COI-87-34. Here, decisions and
determinations during the process of creating statutorily required
guidelines would be particular matters even if the guidelines
themselves are not. To the extent that a private member's employer
will have a financial interest in those decisions and
determinations, s.6 is relevant.

[12] Ordinarily, when a full-time state employee holds an
additional state position, an issue under s.7 arises. Here,
however, because state employee members of the Advisory Commission
serve on the Commission by virtue of their primary state
employment, we do not find that they hold more than one state
position. See EC-COI-84-147; 84-148. In other words, those members
of the Advisory Commission who are otherwise employed by the
Commonwealth have only one state contract, thereby avoiding a s.7
issue.

Page 603

 

End Of Decision