June 19, 1989

FACTS:


The Boston Water and Sewer Commission (BWSC) was created by the
Boston Water and Sewer Reorganization Act of 1977, c. 436 (Act).
Pursuant to the Act, the water and sewer divisions of the
Department of Public Works of the City of Boston (City) were
abolished and the powers and duties thereof transferred to BWSC.
BWSC is charged with improving and maintaining the water and sewer
systems for the benefit of the residents of the City in order to
increase their commerce, welfare and prosperity and to improve
their living conditions. The Act empowers BWSC to charge and
collect fees for the provision of its local services. BWSC is
authorized to exercise all of the powers and privileges of, and is
subject to the limitations upon, cities and towns as provided by
the laws of the commonwealth.

BWSC Commission members are appointed by and may be removed by
the Mayor of the City, subject to approval by the City Council.
Although the Act does not specity whether BWSC employees are
municipal employees, the Act does provide that BWSC members are
deemed to be "special municipal employees" for purposes of G.L. c.
268A. The Act also provides that all BWSC employees are subject
to the residency and voting registration requirements as would
apply to such employees if employed by the City. In the event of
the dissolution or termination of BWSC, title to all funds and
other properties held by
BWSC vest in the City.


QUESTIONS:


1. Are BWSC employees "state employees" or "municipal employees
for the purpose of G.L. c. 268A?

2. Are BWSC employees subject to the financial disclosure
requirements of G.L. c. 268B, s.5?



ANSWERS:


1. BWSC employees are "municipal employees" for the purposes of
G.L. c. 268A.

2. No.


DISCUSSION:

1. Jurisdiction under G.L. c. 268A


G.L. c. 268A, the Massachusetts conflict of interest law, is
applicable to all public employees whether they serve at the
municipal, county, or state level We conclude that BWSC is a
municipal agency as that term is defined in c. 268A, s.1(f)[1] This
conclusion is based primarily upon: (i) the essentially local
character of BWSC's power and the services it provides, (ii) the
City's control of (iii) BWSC's power to collect local revenues:[4]
(iv) the fact that BWSC's yearly surpluses, if any, must be paid
over to the City to appropriate as it deems neccessary (Section
7(f); and (v) the fact that title in BWSCs property vests in the
City upon BWSC's dissolution (Section 19).

Also significant are the Act's designation of BWSC members as
"special municipal employees" (Section 19), the fact that BWSC's
original employees were transferred from the City (Section 5), and
the residency requirements applicable to BWSC's current employees
(Section 4). Given BWSC's essentially local character, and the
nature of BWSC's statutory responsibilities, the Commission
concludes that BWSC is a municipal agency for purposes of G.L. c.
268A. Accordingly BWSC's employees are municipal employees subject
to the conflict of interest provisions of c. 268A.[6] This
conclusion is consistent with In the Matter of Edward G. Brooks,
1981 State Ethics Commission 149, in which a BWSC collection clerk
was found to be a "municipal employee" for purposes of G.L. c.
268A because of BWSC's essentially local character.

Page 253


2. Jurisdiction under G.L. c. 268B


The mandatory financial disclosure requirements of G.L. c. 268B
apply to any individual who holds a major policy-making position
in a "governmental body.", G.L. c. 268B, s.1(h) defines a
"governmental body" as any state or county agency, authority,
board, bureau, commission, council, department, division or other
entity. Section 1(h) excludes from the statutory definition of
governmental body any city, town or municipal agency. For the
reasons stated in section one of this opinion, we conclude that
BWSC is a municipal agency and therefore is not a governmental body
under G.L. c. 268B. See, e.g., EC-COI-FD-87-1; 86-1; 79-3.
Accordingly, because BWSC is not a governmental body for purposes
of c. 268B, BWSC employees are not subject to the financial
disclosure requirements of G.L. c. 268B, s.5.



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* 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 agency," any department or office of a city or town
government and any council, division, board, bureau, commission,
institution, tribunal or other instrumentaiity thereof or
thereunder.

[2] The Act provides that BWSC shall have the powers and privileges
of a city or town of the commonwealth. In addition, Section 1 of
the Act established BWSC for the purpose of providing essential
services to residents of the City. These services had previously
been provided by the City's public works department.

[3] Section 3 of the Act, for example, authorizes the appointment
of commission members by the Mayor of the City (who also designates
its chairperson). Commission members may also be removed for cause
by the Mayor at any time.

[4] Section 7(e) of the Act, for example, grants BWSC all of the
powers and privileges of the City to collect and enforce fees,
rates, rents and other charges.

[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 of the
Amendments to the Constitution. G.L. c. 268A, s.1(g).

[6] This opinion is limited to finding that BWSC employees are
municipal employees for purposes of statutory jurisdiction under
G.L. c. 268A. It should not be construed as determining the status
of BWSC employees for any other purpose. The Commission must
address any other matters raised by BWSC regarding the application
of G.L. c. 268A on a case-by-case basis as requested by BWSC
employees. The Commission is enclosing herewith its published Guide
to the Conllict of Interest law for Municipal Employees for general
guidance as to how c. 268A applies to BWSC employees.

End Of Decision