February 14, 1991

FACTS:


Page 339

The Martha's Vineyard Commission (MVC) was created as a
"public body corporate" by Chapter 831 of the Acts of 1977, "to
further protect the health, safety and general welfare of island
residents and visitors by preserving and conserving for the
enjoyment of present and future generations the unique natural,
historical, ecological, scientific, and cultural values of Martha's
Vineyard ... by protecting these values from development and uses
which would impair them, and by promoting the enhancement of sound
local economies." s.s.1, 2.[1] Every local municipal land
regulatory agency is governed by the standards, regulations and
criteria established by the MVC in considering applications for
development permits relating to areas and developments subject to
Chapter 831. s.5.

The MVC is comprised of twenty-one members, of which six
members are Selectmen in the member towns, or their designees; nine
members are elected island-wide; one member is a Dukes County
Commissioner; one member is appointed from the Governor's Cabinet;
and four, non-voting members whose principal residence is not on
Martha's Vineyard, are appointed by the Governor. s.2.

The MVC receives its funding through the yearly property tax
levies in the individual municipalities. s.4. The MVC may also
accept private contributions and state or federal grants. s.s.3,
4.

One of MVC's statutory responsibilities is the designation of
critical planning districts within Martha's Vineyard and the
regulation of development within these critical planning districts.
Districts of critical planning concern are areas which require
protection for natural, cultural, ecological or historical reasons
or which may be unsuitable for intensive development. s.8.
Following nominations from individual towns or from seventy-five
taxpayers, the MVC may designate specific areas to be districts of
critical planning concern. s.8. The legislation requires the MVC
to adopt regulations for the control of districts of critical
planning concern,[2] and to specify broad guidelines for the
development of the district. s.s.3, 7, 8. The Secretary of the
Executive Office of Environmental Affairs is required to approve
the standards and criteria which the MVC proposes to use in
designating an area as one of critical planning concern.

When the MVC approves a critical planning district, the
municipalities in which the district is located may adopt
regulations governing development within the district in accordance
with the MVC guidelines and submit the regulations to the MVC for
approval. If the regulations are not in conformance with MVC
guidelines, or if a municipality fails to adopt regulations the MVC
will adopt regulations. All adopted regulations are incorporated
into the municipality's official ordinances or by-laws and are
administered by the municipality. s.10. A municipality may only
issue a development permit in a district of critical planning
concern in accordance with regulations provided by MVC. s.9.

The MVC's second statutory responsibility is to develop
criteria and standards to determine when a development project will
be considered a development of regional impact[3] and to review and
approve all applications for developments of regional impact.
s.s.12, 14. Generally, developments of regional impact (DRI) are
those developments which, because of their magnitude or the
magnitude of their effect on the surrounding environment, are
likely to present development issues which are significant to more
than one municipality. s.12.

If a municipality determines that a development application
meets the MVC DRI criteria, it must refer the development
application to the MVC. s.13. The MVC is required to review all DRI
permit applications, hold a hearing, and make findings concerning
whether the probable benefits of the project outweigh the probable
detriments, whether the proposed development will substantially
interfere with the objectives of a municipality's or the county's
general plan, and whether the proposed development is consistent
with any municipality or MVC regulations. s.14. Absent approval by
the MVC, a municipality may not grant a development permit for a
DRI. s.16. Furthermore, the MVC may specify conditions to be met
by the developer in order to minimize any economic, social or
environmental damage. s.16.

In the spring of 1987, the MVC considered a DRI permit
application presented by a realty trust for the development of a
50,000 square foot bank headquarters and supermarket, 324 parking
spaces and off-site access. After a public hearing, the MVC
approved the project with a number of conditions. Subsequently, two
citizens' groups - the Vineyard Conservation Society and Citizens
for a Liveable Island, as well as individual citizens, commenced
a civil suit appealing the MVC's approval. This appeal is currently
pending in Superior Court.

In November, 1988, two of the named plaintiffs in the Superior
Court action were elected as MVC Commissioners. These two
individuals state that they originally opposed the 1987 project and
joined the lawsuit as private citizens because of environmental and
policy concerns. This lawsuit is being funded by a Vineyard
Conservation Society Legal Defense Fund from private donations and
proceeds from fundraising events. The named plaintiffs are not
required to pay for legal fees. The two individuals state that they
do not have any personal financial interest in the development or
in the realty trust which is the developer/applicant. One of these
individuals resigned his membership in both citizens' groups when
he became a Commissioner. The other individual continues to be a
member of the Vineyard Conservation Society.

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The permit applicant/trust has been unable to fulfill the
conditions imposed in the 1987 permit and it has submitted a new
DRI permit application which is currently pending before the MVC.
The new application differs from the 1987 application in that the
new application proposes a single 19,600 square foot supermarket
with 145 parking spaces. The new proposal will also provide on-site
access and will reduce the amount of pavement and increase the
percentage of landscaping and green space.


QUESTIONS:


1. Is the Martha's Vineyard Commission a public
instrumentality within the jurisdiction of G.L. c. 268A?

2. May elected MVC Commissioners officially participate in a
DRI permit application when they are named plaintiffs in a legal
action challenging the MVC approval of a prior permit concerning
the same piece of property?


ANSWERS:


1. For purposes of the conflict of interest law, the MVC is
a municipal agency as defined in G.L. c. 268A, s.1(f).

2. The Commissioners may participate in the new permit
application if they make the public disclosure required by G.L. c.
268A, s.23(b)(3).


DISCUSSION:


1. Jurisdiction


The threshold issue is whether the MVC is a public or private
agency. In its determination of public status, the State Ethics
Commission will consider:

(a) the means by which the entity was created (e.g.,
legislative or administrative action);

(b) whether the entity performs some essentially governmental
function;

(c) whether the entity receives and/or expends public funds;
and

(d) the extent of control and supervision exercised by
government officials or agencies over the entity. EC-COI-90-2;
89-1; 88-24; 88-16
.

No one factor is dispositive as the Ethics Commission considers the
totality of the circumstances. We conclude that c. 831 manifests
a legislative intent to create a public entity. The MVC was created
by special legislation which expressly establishes the MVC as a
"public body. " The MVC's purpose is to control land use
development in a manner that will protect the public health, safety
and welfare which is an obligation shared by and generally
delegated to local municipalities. See, In the Matter of Richard
L. Reynolds
, 1989 SEC 423 (discussion of municipality's interest
in G.L. c. 41). Additionally, the MVC has been delegated
traditional governmental powers, such as the ability to promulgate
regulations which have the force of law, and to review and approve
development permits. See, Chapter 831, s.s.3, 8, 10, 12;
EC-COI-90-2
(Martha's Vineyard Land Bank a municipal agency where
it performs functions similar to conservation commissions); 89-1
(non-profit corporation state entity where it performs essentially
governmental functions); 88-16 (Commission assists city in
fulfilling statutory mandate). The majority of MVC's funding is
derived from public sources. Finally, control of the MVC is vested
with Commissioners who are elected or appointed to represent the
public interest across Martha's Vineyard. See, Chapter 831, s.2.
Accordingly, we conclude that the MVC is a public instrumentality
for purposes of G.L. c. 268A.

The next issue is whether the Commission is a state, county or
municipal entity. As one commentator has indicated, the focus of
analysis is on "the level of government to be served by the agency
in question." Buss, T he Massachusetts Conflict of Interest Statute:
An Analysis
, 45 B.U.L. Rev. 299, 310 (1965). When an agency
possesses attributes of more than one level of government, the
State Ethics Commission will review the interrelation of the agency
with the different government levels in order to determine the
agency's status under c. 268A. EC-COI-89-20; 83-157; 82-25. For
example, in EC-COI-82-25, we concluded that a regional school
district organized under G.L. c. 71 was an independent municipal
agency under the conflict of interest law where the entity was
supported solely by public funds and engaged by the member towns
to provide a service mandated by G.L. c. 71. In EC-COI-83-74, we
concluded that local private industry councils established under
the Federal Job Training and Partnership Act were municipal
agencies for purposes of G.L. c. 268A based on the decision-making
role the councils shared with municipal officials, the role local
officials played in selecting Council members and the Council's
expenditure of public funds. See also, EC-COI-89-20 (interpreting a successor
statute to the Federal Job Training and Partnership Act).

Similarly, we conclude that the MVC is an independent
municipal entity. Our conclusion rests on the substantial
interrelationship between the MVC and local municipalities. The
level of government with the most direct and substantial interest
in MVC decisions is the municipal level, as each municipality is
concerned with land use within its borders. The MVC shares
regulatory authority and decision-making with local municipalities
in matters concerning areas of sensitive land use and large
development projects. The MVC is accountable to the municipalities
as it derives most of its funding from a portion of each member
municipality's property tax revenues. Chapter 831 also provides
for significant municipal control as a plurality of the voting
members are selectmen or their designees and if an elected at-large
Commissioner fails to fulfill his term, the selectmen in

Page 341

that Commissioner's town will appoint a Commissioner to fill the
term. s.2. Based on these facts, we conclude that the MVC is an
independent municipal agency and that the Commissioners and MVC
employees are municipal employees for purposes of G.L. c. 268A."
See also, EC-COI-90-2 (Martha's Vineyard Land Bank is an
independent municipal agency); 89-2 (water district is an
independent municipal agency); 87-2 (fire district is an
independent municipal agency); 82-25 (regional school district is
an independent municipal agency).


2. Commissioner's Participation


All MVC Commissioners are municipal employees[5] for purposes
of G.L. c. 268A. Two sections of G.L. c. 268A regulate the scope
of official participation by municipal employees.


(a) Section 19


Under s.19, a MVC Commissioner is prohibited from
participating as a Commissioner in any MVC proceeding affecting his
financial interest or the financial interest of a member of his
immediate family, a partner or organization in which he serves as
an officer, director, trustee, partner or employee, or any person
or organization with whom he is negotiating or has an arrangement
for prospective employment.[6] As the State Ethics Commission has
noted "The abstention requirement recognizes that a [municipal]
employee cannot be expected to remain loyal to the public interest
when matters affecting the financial interest of certain personal
relationships comes before him for decision." EC-COI-89-16. For
example, if the lawsuit in which the Commissioners are named
plaintiffs seeks money damages, and if any subsequent action taken
by the MVC regarding the property at issue can be used as evidence
in the lawsuit, then the Commissioners would have a reasonably
foreseeable financial interest in subsequent proceedings and must
abstain from participation. EC-COI-87-9; 82-34. Similarly, if any
Commissioners are direct abutters to the property under
consideration, are parties in interest as defined by G.L. c. 40A,
or are "parties aggrieved" as defined by the Wetlands Protection
Act the State Ethics Commission will presume that these individuals
have a financial interest in the property under G.L. c. 268A, s.19
and must abstain. See, EC-COI-89-33; 84-96.

Under the facts presented[7] we conclude that the two
Commissioners do not have a reasonably foreseeable financial
interest in the current permit application. The two Commissioners
state that they, their families and their businesses do not have
a financial interest in the applicant/trust or the development
project. Nor do we find that the MVC Commissioners have a financial
interest in the new application based on the legal challenge of the
prior application. The parties indicate that the lawsuit does not
seek monetary damages, but rather requests judicial review based
on policy grounds. Furthermore, the new permit application is
substantively different from the prior application in such
characteristics as size of the project, functional use, amount of
greenspace and the new application will involve a de novo hearing
and judicial review. Accordingly, the Commissioners are not
required to abstain from participation in the new permit
determination. See, EC-COI-89-19 (husband's stock interest not
sufficiently identifiable); 87-16 (financial interest speculative);
87-1.


(b) Section 23


Section 23 contains general standards of conduct which are
applicable to all public employees. It provides, in pertinent part,
that no employee may use or attempt to use his official position
to secure unwarranted privileges or exemptions for himself or
others. G.L. c. 268A, s.23(b)(2). Therefore, the MVC Commissioners
may not use their official positions to secure an unwarranted
privilege of substantial value for themselves or for any group with
which they are affiliated. For example, the two Commissioners
should take special care to provide equal access to the public
forum for all interested parties at the hearing. The Commissioners
must base their evaluation and vote on the merits of the
application, using the same objective standards which the MVC
applies to other permit applications. See, EC-COI-90-2; 89-19.

Furthermore, s.23(b)(3) prohibits a municipal employee from
engaging in conduct which gives a reasonable basis for the
impression that any person or entity can improperly influence him
or unduly enjoy his favor in the performance of his official
duties. Issues are raised under s.23(b)(3) because of the
Commissioners close prior and current relationship with groups who
so strenuously oppose this development project that they have
initiated a lawsuit. These circumstances create an appearance of
a conflict of interest or bias in one's official actions as a
result of one's private activities. See, EC-COI-89-16 (past
friendship relationship); 88-15 (private dealings with development
company); 85-77 (private business). In order to dispel an
appearance of a conflict of interest, s.23(b)(3) requires that the
Commissioners publically disclose, prior to their participation in
the new permit application, their status in the lawsuit and their
relationships with any interested group. The proper procedure is
to disclose in writing all of the relevant facts and to file the
disclosure with the MVC Executive Director and with the town clerk
for the town which has referred the permit application to the MVC.
The Commissioners should also make a verbal public disclosure for
inclusion in the meeting minutes prior to any official
participation or action. See, EC-COI-90-2; 89-19; In the Matter of
George Keverian
, 1990 SEC 460.

We note that the issue concerning whether MVC Commissioners
should be subject to abstention standards which are stricter than
those contained in c. 268A is a policy question that is beyond the
scope of this opinion and can only be addressed through legislative
amendment or through the implementation of supplementary standards
of conduct by the MVC pursuant to G.L. c. 268A, s.23(e).
Notwithstanding c. 268A, the alleged bias of a

Page 342

municipal official may be addressed within the context of a
petition for judicial review of the agency's decision. See,
Attorney General v. Department of Public Utilities
, 390 Mass. 208
(1983); EC-COI-82-31.

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

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

[1] The Elizabeth Islands, certain Indian lands and land owned
by the Commonwealth are excluded from the MVC's jurisdiction. s.2.

[2] The MVC may include local municipal regulations in
adopting its regulations.

[3] The MVC's proposed criteria are subject to the approval
of the Secretary of EOEA.

[4] Although the land under the MVC's jurisdiction includes
all of Dukes County, we note that only one County official sits on
the MVC, the County has no oversight for the MVC and is not
statutorily required to contribute to the MVC's funding. Similarly,
while the Commonwealth must approve MVC criteria and guidelines,
the MVC does not statutorily receive state funding and does not
have jurisdiction over Commonwealth land. In comparison to the
large municipal representation on the MVC, the Commonwealth is
represented by one member. We conclude that the MVC's relationship
with municipal government outweighs its relationship with the
Commonwealth.

[5] "Municipal employee," a person performing services for or
holding an office, position, employment or membership in a
municipal agency, 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,
but excluding (1) elected members of a town meeting and (2) members
of a charter commission established under Article LXXXIX of the
Amendments to the Constitution. G.L. c. 268A, s.1(g).

[6] Appointed Commissioners may be eligible for an exemption
to the general s.19 prohibition. See, G.L. c. 268A, s.19(b)(1).
This exemption is not available to elected Commissioners as elected
Commissioners do not have an appointing authority. See,
EC-COI-90-2
.

[7] This advisory opinion is based on the facts as represented
by the parties. The Ethics Commission has not conducted an
independent investigation of the facts. Should any of the facts
change, the Ethics Commission's conclusions may be different and
the parties should seek further guidance.

End Of Decision