September 10, 1992

FACTS:


The Martha's Vineyard Collaborative (Collaborative) was formed
under a letter of agreement between the school committees of the
six Vineyard schools and the Regional High School, pursuant to G.L.
c. 40, s. 4E and c. 7, s. 22B. The Collaborative is organized as a
501(C)(3) corporation devoted exclusively to educational purposes.
The purpose of the Collaborative is to conduct joint educational
programs, including, but not limited to, providing services to
special needs children, cooperative purchasing of goods and
materials, and coordinating and implementing in-service education.
The Collaborative is run by a Board comprised of one person from
each Town's school committee or the Committee's designee and an
ex-officio designee of the state Department of Education. One of
the Board's principal duties is to establish and manage the
Collaborative Trust Fund which receives all funds and
reimbursements from the municipalities, as well as grants or gifts
from any source. The municipalities cover administrative costs of
the Collaborative on a pro-rata basis and cover program costs on a
per pupil cost basis.

The Chilmark School Committee wants to appoint an elected
member of the Chilmark Finance Committee to serve as the Chilmark
representative to the Collaborative.

QUESTION:


Does G. L. c. 268A permit an elected member of the Chilmark
Finance Committee to serve as the School Committee's designee on
the Collaborative?


ANSWER:


Yes.


DISCUSSION:


1. Jurisdiction


Page 437

Members of the Chilmark Finance Committee are municipal
employees[1] for purposes of the conflict law. An initial question
arises whether a member of the Finance Committee is also a public
employee as a Collaborative board member. We conclude that, within
the meaning of G.L. c. 268A, the Collaborative is an
instrumentality of each municipality which comprises the
Collaborative, similar to regional school committees, and that the
Chilmark representative is a municipal employee in that capacity.

In a determination whether an organization is a public entity
under G.L. c. 268A the Commission has not considered the corporate
structure of an entity to be dispositive of the issue. The
Commission has weighed whether the entity is created by
governmental means; whether the entity serves an inherently
governmental purpose; whether the entity is controlled or
supervised by government employees; and whether the entity is
funded by the government or expends government funds. See
EC-COI-91-12; 89-1; 88-24; 88-19
.

For example, the Commission has found private nonprofit
entities to be public entities where the entity was created by a
public agency to assist the agency in furthering its legislative
mandate. See EC-COI-91-12; 891; 88-24. Similarly, the Commission
found that a regional school district was an independent municipal
agency for purposes of the conflict of interest law as the district
was an entity supported by public funds, and its purpose was to
provide a service which each municipality in the Commonwealth is
required by law to provide. EC-COI-82-25.

Recently, the Appeals Court affirmed a Commission Decision and
Order finding that members of a regional school committee are
municipal employees under G.L. c. 268A. In doing so the Court
concluded that a regional school district is an instrumentality of
each municipal member under G.L. c. 268A, s. 1(f). McMann v. State
Ethics Commission
, 32 Mass. App. Ct. 421, 428 (1992). In reaching
this conclusion the Court considered the ordinary and approved use
of the word "instrumentality" in the statute; the formation,
operation and purpose of a regional school district; and the
purpose of G.L. c. 268A. Id. at 425-428. The Court found that the
municipalities use the school district as a means to fulfill their
statutory obligation to provide education and that the
municipalities played a substantial role in the creation of the
district and the district's financial matters. Id. at 427.

We now expressly follow the Appeals Court's reasoning in
considering whether a regional entity, such as the Collaborative,
is a municipal agency within the meaning of G.L.c. 268A, s. 1(f).
The Commission will no longer consider regional municipal entities
to be "independent" municipal entities.[2] See EC-COI-92-15. Rather
we will consider whether such entities are instrumentalities of
each municipal member based on the ordinary and approved usage of
the statutory language, the purpose of G.L.c. 268A and the form,
operation and purpose of the regional entity.

Applying this analysis to the case before us, we conclude that
the Collaborative is a municipal agency within G.L. c. 268A, s.
1(f). In light of the purpose of G.L. c. 268A to assure integrity
and honesty in government by eliminating actual and potential
conflicts between a public official's duties and private interests,
it is reasonable to conclude that c. 268A applies to the
Collaborative, an entity with public attributes. The impetus for
the creation of the Collaborative is in G.L.c. 40, s. 4E which
permits municipal school committees to enter letters of agreement
to form educational collaborative. The purpose of the Collaborative
is to assist school committees in their traditionally governmental
function of providing public education. G.L.c. 40, s. 4E. The
Collaborative receives substantial funding support from the member
municipalities, and the funding is administered by a Board of
municipal appointees from the member school committees. It is noted
that any amendment to the agreement, such as the addition of a new
member, must be approved by the other member municipalities.
Finally, G.L. c. 40, s. 4E expressly contemplates that the
Collaborative will be a public entity and that the Board will be a
public employer. G.L.c. 40, s. 4E. In conclusion, the Collaborative
is created by the municipalities as a means by which municipalities
fulfill their educational responsibilities and is an
instrumentality of those municipalities.


2. Application of the Conflict of Interest Law


A local municipal employee who is also serving as a
Collaborative Board member will be considered to be serving on two
municipal boards. This dual status eliminates certain conflict of
interest issues which would otherwise arise in dealings between the
employee's individual town and the Collaborative. Under G. L. c.
268A, s. 17(c) a municipal employee may not act as agent for
anyone, other than the municipality, in connection with a matter in
which the municipality is a party or has

Page 438


a direct and substantial interest. Section 19, in relevant part,
prohibits a municipal employee from participating in a matter in
which a business organization[3] in which he is serving as an
officer, director, trustee, partner or employee has a financial
interest.[4] These sections of the conflict law will not prohibit
a municipal employee from acting, as a Board member, in matters in
which the individual municipality has an interest, or, as a local
municipal employee, in matters in which the Collaborative has an
interest, because in each capacity the employee is acting on behalf
of the municipality. See EC-COI-90-2; 88-24.[5]

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

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

[1] "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).

[2] See McMann, supra, at 428, n. 5 (questioning the statutory
basis for municipal entities as "independent" municipal entities).
Also, note that the definition of "state agency" includes "any
independent state authority, district, commission, instrumentality
or agency . . ." (emphasis added), whereas the definition of
municipal agency does not include the word "independent." G.L. c.
268A, s. 1(f) and (p).

[3] Non-profit entities and municipalities are considered to
be "business organizations" for purposes of s. 19. See EC-COI-89-2;
88-4; 84-7; 81-62
.

[4] We note that G.L. c. 268A, s. 20 may apply to the employee
in his dual positions. We understand that the Finance Committee
member will not be compensated in either position, and therefore s.
20 will not apply to his situation. However, s. 20 issues may arise
in the future. For example, an appointed municipal employee may not
serve as a Collaborative Board member and receive compensation in
either position, unless an exemption applies. This section may be
particularly relevant in the situation of a local school teacher
who also wants to work part-time for the Collaborative. However, s.
20 will not prohibit a paid school committee member from also
serving as a Collaborative Board member because G.L. c. 40, s. 4E
expressly contemplates that school committee members, by virtue of
their positions, are required to serve as municipal representatives
on the Board. See EC-COI-84-148 (one contract forms basis for state
committee membership and agency employment). If issues arise under
s. 20, you should seek further guidance from the Commission.

[5] Sections 17 and 19 will apply to the municipal employee in
his other private activities. For example, the Board member may not
participate, under s. 19, in decisions to adopt or cancel a program
in which his child is participating. Under s. 17, the employee may
not represent private parties in their dealings with the
Collaborative or the Town.

Page 439

End Of Decision