October 19, 1993

 

FACTS:

You are counsel to the Auburn School Committee (Committee).
Members of the Committee are elected.

Your question concerns the Education Reform Act of 1993,
Chapter 71 of the Acts of 1993, which was signed into law on June
18, 1993 (Act). Specifically, St. 1993, c. 71, s. 53, amends G.L.
c. 71, s. 59C by requiring that each public, elementary,
secondary and independent vocational school in the Commonwealth
shall have a school council (Council). You ask whether the
Council is subject to G.L. c. 268A and, if so, how G.L. c. 268A
will apply to a Council member who also serves on a school
committee.

The Act provides that the Council shall consist of the
principal, teachers, parents, and community representatives
"drawn from such groups or entities as municipal government,
business and labor organizations, institutions of higher
learning, human services agencies or other interested groups,"
and, in secondary schools, at least one student representative.
The principal shall be a co-chair of the Council with another co-
chair selected by the Council members. Parent representatives
will be elected by the school's Parent Teacher Organization
(PTO). If there is no PTO, the school committee will approve the
representative process by which the parent representatives will
be chosen. Once elected, "parents shall have parity with
professional personnel on the [Council]." Teacher representatives
are chosen by the teachers in that school building, and the
principal will choose community representatives, subject to a
representative process approved by the Superintendent and the
School Committee. The Act also provides that non-school members
(i.e., persons other than parents, teachers, students and staff
of the school), shall not constitute more than fifty (50%)
percent of the Council. Council members will not be compensated
for their work on the Council.

The Act requires that school councils hold their first
meeting not later than forty (40) days after the first day of
school. Council meetings will be subject to the Massachusetts
Open Meeting Law, G.L. c. 39, s. 23B. The Act requires that the
school council "shall meet regularly with the principal of the
school".

A Council will review, and advise the principal on the
budget for the school; consult with the principal on the
development of a student handbook in a secondary school; assist
the principal in the identification of the educational needs of
the students attending the school; and consult with the principal
on the adoption of educational goals for the schools, consistent
with the state Board of Education's goals and standards and the
educational policies established by the School Committee.

Under the Act, the principal, with the assistance of the
Council, is required to formulate a school improvement plan
(Plan). This and other records of the Council are subject to the
Public Records Law, G.L. c. 66, s. 30. The Plan "shall include an
assessment of the impact of class size on student performance,
and shall consider student to teacher ratios and other factors
and supportive adult resources,

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and may include a scheduled plan for reducing class size." The
Plan also shall address professional development of the school's
professional staff, the allocation of professional development
funds in the school budget, the enhancement of parental
involvement in the school, safety and discipline, extracurricular
activities, and the provisions of appropriate educational
services to culturally and linguistically diverse student
populations. When completed, the Plan shall be submitted to the
school committee for review and approval on an annual basis. If
the Plan is not reviewed by the school committee within thirty
days of receipt, "the plan shall be deemed to have been
approved." A school committee may delegate other policy making
responsibilities to a school council, although collective
bargaining responsibilities under G.L. c. 150E may not be
delegated.

The Act also rewrites G.L. c. 71, s. 37, which concerns the
responsibilities and duties of school committees. Under the Act,
school committees, among other things, are responsible for
reviewing and approving budgets for public education in the
school district. School committees also establish educational
goals and policies for schools in their district that are
consistent with the requirements of law and the statewide goals
and standards established by the state board of education. St.
1993, c. 71, s. 35.

You state that a school committee member might be asked to
serve on a Council either as a parent or community
representative.
 


QUESTION:

1. Are Council members "municipal employees" within the
meaning of G.L. c. 268A, s. 1(g)?

2. Does an elected school committee member violate G.L. c.
268A by also serving on a school council?



ANSWER:

1. Yes.
2. No.
 


DISCUSSION:


Jurisdiction


The threshold question is whether Council members are
persons "performing services for" a "municipal agency [1].

In previous decisions, the Commission has weighed the
following four factors in determining what constitutes
"performing services" for a municipal agency:

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

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

(3) whether the holder of the position will perform
functions or tasks ordinarily expected of employees, or will
he be expected to represent outside private viewpoints; and

(4) the formality of the person's work product, if any. See
EC-COI-87-28; 86-5; 82-81
.

In general, where an advisory council has been created by
statute, the Commission has found that it is a government agency
and its members government employees. See, e.g., EC-COI-86-4; 82-
157; 82-139
. Here, the Council is created by the Act. However,
because no one factor is dispositive, we examine the Council in
light of the remaining three factors. EC-COI-86-4.

Our examination of the remaining factors leads us to
conclude that the Council is a municipal agency. In EC-COI-86-5,
we found that an advisory committee to the Office of Real
Property within the Division of Capital Planning and Operations
was not a state agency in part because membership on the
committee "[could] be fluid and [was] generally open." Indeed,
the facts of that case indicated that the only required
membership on the committee was "an invitation" to certain
representatives to the general court.

Here, by contrast, the Act delineates who must serve on the
Council and the process by which they are to be selected. The Act
provides that membership on the council shall include parents,
teachers and community representatives. Where there is no
representative process for choosing parent and community
representatives, the Act requires that such a process be approved
by the school committee and, in the case of the community
representatives, also by the Superintendent of Schools.

The Act also provides guidelines for the conduct of Council
meetings. Most significantly, Council meetings will be subject to
the Massachusetts Open Meeting Law, G.L. c. 39, s. 23B, and its
requirements for advance public notice of meetings, public

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attendance, and the preparation of accurate records of votes and
other actions taken at such meetings. Compare EC-COI-86-5 (not a
state agency where "there [were] no provisions . . . for the
conduct of committee meetings (e.g., whether the meetings must be
open to the public).") We conclude, therefore, that the Council
has a high degree of formality both as to its membership and its
procedures.

We also conclude that Council members will perform functions
or tasks of the type ordinarily expected of municipal employees.
We have previously found that members of a committee formed in
the discretion of a state agency that had little organizational
formality and whose purpose was to provide outside viewpoints to
the agency were not state employees for purposes of G.L. c. 268A.
See EC-COI-86-5; 82-81. In comparison, the members of a committee
created pursuant to statute who played a substantive role in the
agency's regulation process were found to be state employees. EC-
COI-87-17; 86-4.

Here, Council members who are parents and/or community
representatives do provide outside viewpoints, but are also
involved in the formation of school policy. Under the Act, the
Council will review and advise the principal on the budget for
the school; consult with the principal on the development of a
student handbook in a secondary school [2]; assist the principal
in the identification of the educational needs of the students
attending the school; consult with the principal on the adoption
of educational goals for the schools consistent with the state
Board of Education's goals and standards and the educational
policies established by the School Committee; and assist the
principal in the formulation of a school improvement plan. A
school committee may also delegate other policy making
responsibilities to a school council. In short, the Act envisions
that the Council will play a substantive role in the
identification of the educational needs of the students attending
the school, and in the formulation of policies and a plan to meet
those needs. Thus, we find that the functions to be performed by
Council members are of the type ordinarily performed by municipal
employees.

Finally, we find that the school improvement plan prepared
with the Council's input and assistance is a formal work product,
requiring school committee approval. Thus, weighing all of the
relevant factors, we conclude that Council members are
"performing services for" a "municipal agency," and, therefore,
are municipal employees for purposes of G.L. c. 268A [3].


Sections 17 and 19


Having concluded that the Council is a municipal agency, we
turn to your second question, namely, whether an elected School
Committee member violates c. 268A by also serving on the Council.
In EC-COI-92-26, the Commission addressed the situation where a
municipal employee is serving on two boards. There the Commission
concluded that this dual status "eliminates certain conflict of
interest issues" under s. 17 and s. 19 of the conflict law.

Specifically, under 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 a direct and substantial interest. Section 19, prohibits a
municipal employee from participating in a matter in which a
business organization [4] in which he is serving an employee has
a financial interest. However, these sections will not prohibit a
municipal employee from acting as a Committee member, in matters
in which the Council has an interest, or vice versa, "because in
each capacity the employee is acting on behalf of the
municipality." EC-COI-92-26; see also EC-COI-90-2 [5].


Section 20


As noted in EC-COI-92-26, n.4, however, we must also
consider whether the employee's dual status raises issues under
s. 20, dealing with multiple municipal office holding. In
general, G.L. c. 268A, s. 20 prohibits a municipal employee from
having a financial interest, directly or indirectly, in a
contract made by a municipal agency of the same city or town,
unless an exemption applies. In applying s. 20, we must look at
each position held from the prospective of the other position
held.

The Commission has held that an elected municipal post does
not involve a contract with the municipality. EC-COI-82-26. Thus,
a Committee member does not need an exemption in his Council
position in order to hold his elected School Committee post. Nor
does the Committee member need an exemption in such position to
hold a position as a Council member, as he will be uncompensated
in Council post, and thus will not have a financial interest in
that position. Therefore, s. 20 will not prohibit an elected
School Committee member from also serving as an uncompensated
member of the Council [6].


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


[1] General Laws c. 268A defines a municipal employee as: "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 . . . G.L. c. 268A, s.
1(g). (emphasis added)

[2] See, St. 1993 c.71, s. 36. The student handbook is
intended to contain school policies concerning the use of tobacco
products, disciplinary proceedings, including procedures assuring
due process, standards and procedures for suspension and
expulsion of students, procedures pertaining to discipline of
students with special needs, and the disciplinary measures to be
taken in cases involving the possession or use of illegal
substances and weapons.

[3] Our conclusion is buttressed by our observation that in
drafting the Act, the Legislature clearly contemplated G.L. c.
268A. See, e.g., St. 1993, c. 71, s. 54 (in the Act's anti-
nepotism provision, "immediate family" shall have the meaning
assigned by c. 268A, s. 1(e)); St. 1993, c. 71, s. 32 (it shall
not be a violation of c. 268A for a member of the foundation
budget review commission to participate in commission
deliberations that will or may have a financial impact on his own
compensation). Where the Legislature did not want members of an
advisory council to be considered public employees by virtue of
that membership, it stated so expressly. See St. 1993, c. 71, s.
3
(members of advisory council to the board of education shall
not, by virtue of their membership, be considered state
employees).

[4] Municipalities and their agencies are considered to be
"business organizations" for purposes of s. 19. See EC-COI-89-2;
88-4; 84-7; 81-62.

[5] We caution that a school committee member must still be
guided by the principles in s. 23, which provides standards of
conduct for all public employees. Specifically, s. 23(b)(2)
prohibits a public official from using his position to secure an
unwarranted privilege of substantial value which is not properly
available to similarly situated individuals. Thus, s. 23(b)(2)
requires the application of objective standards when one acts as
a school committee member to review the plan one helped to
develop as a Council member. See EC-COI-89-23; 89-3. We offer no
opinion concerning whether such dual service furthers the intent
and purpose of the Education Reform Act.

[6] We point out that the result would be different in the
case of appointed School Committee members who are regular
municipal employees, and who receive compensation in their School
Committee position. Section 20(b) is the only exemption generally
available to regular municipal employees. See Commission Advisory
No. 7. Use of that exemption, among other things, requires public
advertisement of the second job, here the School Committee
position. Alternatively, the city council, board of alderman (if
there is no city council), or board of selectmen may designate
the Council members "special" municipal employees, in which case
they may utilize the less onerous exemption in s. 20(d). (The s.
20(c) exemption for "specials" is unavailable to a school
Committee member because he participates in or has official
responsibility for the municipality's school department.)

By contrast, s. 20 will not present an obstacle to
principals and teachers who serve on the Council by virtue of
those municipal positions. See EC-COI-84-147 (no issue raised
under s. 7, the state counterpart to s. 20, for members of
company board who served by virtue of their state university
affiliation); 84-148.


End Of Decision