December 9, 1987

FACTS:


You are a member of a city Neighborhood Council (ANC) which
provides neighborhood participation in municipal government
decisions affecting land use, development and service delivery in
a particular neighborhood. Council members were initially selected
by the Mayor from residents who submitted 25 signatures from their
neighbors. Since the ANC Was created without law or ordinance, it
has no power to compel agency action. Your power is limited to
rendering advice as needed by various mandated City agencies. For
example, the director of the city Redevelopment Authority (CRA) has
from time to time invited neighborhoods within ANC's area to
participate in discussion of projects in their applicable
neighborhoods.

ANC has adopted bylaws but has not incorporated and, therefore,
it is unclear whether the ANC has any legal status. The by-laws
provide for open membership of anyone over 18 and regulates the
conduct of meetings. The by-laws further provide that "to the
extent that it is applicable in defining conflict of interest
M.G.L.

Page 164

c. 268A is applicable."[1]

Recently the city has attempted to formalize the relationship
between the City, the CRA and the neighborhood councils. This
formalization has taken the form of a draft model agreement. The
original draft agreement stated that neighborhood councils are to
provide full and meaningful participation in City government and
are to participate fully in municipal affairs. The revised draft
eliminates the language "participate fully in municipal affairs"
and substitutes "render advice in municipal affairs." Further, the
original draft agreement stated that members of the neighborhood
councils shall be special municipal employees within the meaning
of G.L. c. 268A, the conflict of interest law. The revised draft
eliminates any reference to c. 268A. The ANC is currently
considering whether to execute this revised Agreement.[2]

If the Agreement is signed, the City will delegate several
responsibilities to the ANC. For example, the City agrees that it
will notify ANC of any proposed change In zoning or land use. It
agrees that no RFP for development of land or property owned by the
City or the CRA will be issued prior to review by ANC. It also
agrees to share communications resources and to give the ANC access
to information from various City departments as well as the CRA,
to enable the ANC to suggest improvements to land use and
development decisions. The City will also obligate itself to
consider all written recommendations and to provide written reasons
for any decision inconsistent with those recommendations.[3]


QUESTION:


Are ANC members currently municipal employees within the meaning
of G.L. c. 268A?


ANSWER:


No. If the ANC executes the proposed agreement as drafted,
however, the provisions of G.L. c. 268A may apply to ANC
members.[4]


DISCUSSION:


Generally, we have found that advisory committees created by law
are public agencies, and its members are public employees. EC-COI-
86-4
(DEQE Penalties Advisory Committee and cases cited therein).
On the other hand, the Commission has generally concluded that
unpaid members of citizens advisory committees which are not
created pursuant to any statute, ordinance, rule, or regulation are
not municipal employees within the meaning of the conflict law, In
addition to taking into consideration the primary factor for the
impetus for the creation of the position (whether by statute, rule,
regulation or otherwise), the Commission also considers the degree
of formality associated with the jobs and its procedures; whether
the holder of the position will perform functions or tasks
ordinarily expected of employees, or will be expected to represent
outside viewpoints; and the formality of the person's work product,
if any. Applying these criteria to ANC as presently constituted,
we conclude that the ANC is not a municipal agency within the
meaning of the conflict law and its members are not municipal
employees.

Neighborhood councils, including ANC, were initially conceived
for discussion forums, with a purely advisory role. Membership in
the various councils has been flexible. For example, the Mayor has
appointed members of some neighborhood councils while others have
been elected, and in your neighborhood, membership is open to all
residents of the neighborhood 18 years of age and older. As
currently situated, the land use decisions to be reviewed by ANC
and other neighborhood councils are subject to the discretion of
the Mayor's office and/or the BRA. In the absence of any legal
recognition that CNC is an integral part of the City's land use
decisions, and in the absence of any legal requirements regarding
the selection of council members, terms of office, removal, or
formal recognition of the ANC's ability to act as City officials,
we conclude that ANC is insufficiently organized and structured to
be deemed an municipal agency for the purposes of G.L.c. 268A. This
result is consistent with EC-COI-86-5, in which we found that an
advisory committee organized to provide input into local land use
decisions was not a public agency. The factors present in that case
are present here: discretionary power, fluid membership, lack of
organizational requirements spelled out in law or regulation, and
the fact that committee members "are selected as representatives
of constituency groups for the purpose of representing outside
private viewpoints and for the purposes of receiving the viewpoints
of a broad spectrum of the local community involved." See, also EC-
COI-80-49; 82-81
.

On the other hand, the execution of a contract like that
currently proposed could result in the opposite conclusion, The
execution of a contract between the City, the CRA and the
neighborhood councils would reflect a determination of the
importance of ANC's functions and the need to institutionalize
ANC's input into a formal process. The proposed agreement reads
like an ordinance and may be binding and enforceable. Given the
explicit content of such an agreement, it may very well be that
G.L. c. 268A would treat ANC no differently than any other advisory
committee created explicitly by law if the contract is executed.[5]

The contention that ANC should be deemed to be a municipal
agency upon execution of the agreement is further supported by an
examination of s.8.8 of the proposed agreement. The City obligates
itself to provide resources to ANC including installation and
mainte-

Page 165

nance of telephones and the establishment of an early notification
system. These facts demonstrate an intent to have the councils
perform service to the City.

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[1] The intent of this language is unclear although it appears to
reflect an intent to have the several principles of G.L. c. 268A
apply to ANC members. Jurisdiction under G.L. c. 268A is, ofcourse,
a question of law which turns on the facts, rather that on the
contents of a by-law.

[2] A number of citizens have complained that participation in
neighborhood councils is dependent on the adminstration's good will
and that the advisory power of the councils results in their
becoming partisan political tools. For this reason, the
organization of neighborhood activists, has proposed establishment
of elected neighborhood councils which are given power to deal with
land issues. The organization has introduced an ordinance to be
voted on by the city council. The ordinance would provide the
neighborhood councils with approval powers over planning and
development decisions. If approved, the ordinance may very well
make ANC members municipal employees. See, page 4, infra.

[3] We can make no assumptions as to the enforceability of any of
the provisions of the proposed agreement.

[4] Because the proposed contract is subject to revision, we will
reserve any formal jurisdictional conclusion until a final
agreement has been approved or submitted for review by ANC or
the city solicitor. The analysis herein is intended to provide guidance
concerning the factors the Commission would deem determinative.

[5] The agreement would arguably provide ANC members with powers
ordinarily executed by governmental personnel. It spells out that
the ANC shall review draft requests for proposals (RFP's) and
solicit proposals for BRA property. The agreement provides that ANC
will play an integral role in formulating the terms that a RFP
should take. Indeed, no RFP for development of land or property by
the City or the BRA would be issued prior to review by ANC. ANC
would also be given the authority to meet with applicants who are
finalists in the consideration for designation by the City or the
BRA. The City and the BRA would be obligated to consider all
written recommendations received from ANC pertaining to matters
within its jurisdiction and to give written reasons to ANC for any
action inconsistent with a ANC recommendation.

End Of Decision