September 15, 1999



FACTS:


The Board of Selectmen of the Town of Amherst appointed
you the Town's representative (Councilor) to the Hampshire Council
of Governments (Council).

Pursuant to St. 1998, c. 300, Hampshire County government
was dissolved. Following the provisions set forth in St. 1998, c.
300, s. 45, adding s. 30(b) to c. 48 of the Acts of 1997, a
majority of voters in the twenty municipalities of the former
Hampshire County approved the Hampshire Council of Governments
Charter
(Charter) which created the Council. The Charter's Preamble
states that the twenty municipalities that were within the former
County "have vital common concerns that transcend the borders of
individual municipalities" and have adopted the Charter to
establish "the means to serve [the] municipalities effectively, and
to place the Council of Governments on a firm financial footing in
order to deal with regional issues which transcend the existing
boundaries of municipal governments." The Council retains powers
and duties previously conferred upon Hampshire County and its
County Commission except those powers concerning functions
transferred to the Commonwealth. See St. 1998, c. 300, s.s. 11, 13,
16
. As a result of the County's dissolution, the operation and
management of the County Jail and the House of Correction, the
Registry of Deeds and the court houses were transferred to the
Commonwealth. Id. at s. 11. However, the Council acquired the
"historic courthouse at 99 Main Street in the city of Northampton,
the Hampshire Care nursing facility on River Road in Leeds, and the
land on which they are situated .... and the fixtures and
improvements located thereon" and leased the court house to the
Commonwealth for its continued use as the trial court's law
library. Id. at s. 20, amending s. 7 of c. 48 of the Acts of 1997.
If the Charter had not been approved, "all powers and duties of
Hampshire county government [would have been] transferred to the
commonwealth effective January 1, 1999." St. 1998, c. 300, s. 13,
amending s. 3 of c. 48 of the Acts of 1997
.

The Charter describes the Council as a "body politic and
corporate for the purposes of regional cooperation in matters of
common interest among the members of the Council." Some of the
Council's powers include: the power of eminent domain with respect
to any powers of the former County; the power to construct and
maintain public improvements; the power to administer trust funds
of the former County and to have all possible protections from tort
liability afforded to municipalities; the powers of municipalities
with respect to creating special fund accounts for the purpose of
providing any service authorized by the Charter; the power to
establish membership assessments and service charges; the power to
retain the powers and authorities of the former County's

Page 736


executive and legislative bodies including any responsibility of
the former County for which the Commonwealth has no explicit
jurisdiction; and the powers of town selectmen under G. L. c. 41,
s.s. 52, 56 for approval of bills and warrants. Charter, Article
One
. See also St. 1998, c. 300, s. 45, adding s. 30(b) to c. 48 of
the Acts of 1997
.

The Council may accept or participate in any grant,
donation or program available to any political subdivision of the
Commonwealth as well as in any grant, donation or program made
available to counties by any other governmental or private entity
St. 1998, c. 300, s. 45, adding s. 30(d) to c. 48 of the Acts of
1997; Charter, Article Five, s. 7
. The Legislature authorized the
Commonwealth to provide a grant of $950,000 to the Council. St.
1998, c. 300., 45 adding s. 35 to c. 48 of the Acts of 1997
. The
grant, however, has not been funded in the state budget and it is
funded, no additional such legislative grants are anticipated.
Although the Council currently has received grant, from the
Department of Public Safety and the Department of Public Health,
most of its funding comes from its member municipalities, described
below.

To "provide, purchase or otherwise make available
services on a regionalized basis." the Council may impose a
regional assessment. as set forth in the Charter, which shall be
allocated among, the members of the Council in proportion to their
respective equalized valuations as reported to the General Court b~
the Commissioner of Revenue. The regional assessment shall be based
upon the budget the Council adopts and shall be used to provide
regional or municipal services or programs, or for planning,
organizing and administering such services or programs, and
maintaining property in connection with such services or programs.
St. 1998, c. 300, s. 45, adding s. 30(i) to c. 48 of the Acts of
1997; Charter, Article One, s. 2(c) vii.[1/]


The Council may "sue and be sued ... contract and be
contracted with... buy, sell, lease, hold and dispose of real and
personal property" as well as "appropriate and expend funds for
Council ... purposes, retain, administer and release trust funds of
the former County." Charter, Article One, s. 2(c) v.[2/] The former
County Treasurer has been designated as the Council's Director of
Finance and has the power and duties of a municipal treasurer
pursuant to G. L. c. 41, 35 and G. L c. 44,
54, 55 and 55A.

The Council performs several functions. It "may administer
and provide regional services to cities and towns and may delegate
such authority to sub regional groups of such cities and towns." St.
1998, c. 300, s. 45, adding s. 30(g) to St. 1997, c. 48
. It "may
enter into cooperative agreements with regional planning
commissions or may merge with such commissions to provide regional
services." Id. The Council shall determine what regional
services it may provide to member municipalities, which may
include, but not be limited to, engineering, inspectional services,
planning, economic development, public safety, emergency
management, animal control, land use management, tourism promotion,
social services, health, education, data management, regional
sewerage, housing, computerized mapping, household hazardous waste
collection, recycling, public facility siting, coordination of
master planning, vocational training and development, solid waste
disposal, fire protection, regional resource protection, regional
impact studies and transportation. St. 1998, c. 300, s. 45, adding
s. 30(h) to c. 48 of the Acts of 1997
. It has the power "to
contract with or enter into agreements with any other entity or
governmental unit and to provide jointly or for the other, or in
cooperation with other entities, any service, activity, or
undertaking which that entity or governmental unit is authorized by
law to perform." Charter, Article One, s. 2 (c) vi. It may
construct, acquire, operate and maintain public improvements,
capital projects, personal property and real property or other
enterprises for any public purpose. Charter, Article One, s. 2(c)
iv.


The legislative power of the Council is vested in a board
of councilors made up of members chosen at municipal general
elections for terms of two years. Councilors shall be residents and
registered voters of the municipalities that elect them, and shall
qualify for the ballot in towns in the same manner as candidates
for the board of selectmen and in cities in the same manner as
at-large candidates for the city council.[3/] There shall be at
least one councilor elected from each municipality, however, any
municipality whose population comprises more than ten per cent of
the population of the Council ... shall elect one councilor for
each ten per cent or portion thereof.". Charter, Article Three, s.
1
. The Council shall elect annually from its membership a chairman,
vice-chairman, and three other members, no more that one of whom
shall be from any single municipality, to serve as an executive
committee. The Council shall choose a moderator, who shall not be
a member of the executive committee, to preside over its meetings.
Id. at s. 2(a). The Council shall meet at least once per month. Id.
at s. 2(h). The executive committee shall meet at least twice per
month and shall report to the Council at least once per month. Id.
at s. 2 (d).

Municipalities that were not within the former County may
join the Council under the following conditions: (1) a vote by a
majority of the citizens, or a vote of the legislative body of the
municipality, at the choice of the municipal executive body; (2) a
two-thirds affirmative vote of the councilors of the Council; and
(3) a commitment to belong for at least three years. Charter,
Article Two, s. 1(h)
. After three years of membership, any
municipality may withdraw from the Council by an affirmative vote
of its legislative body. Id. at s. 2(a).

The Charter may be amended in either of two

Page 737


ways. A proposed amendment shall be submitted to the voters of each
municipality only after two-thirds of the weighted votes of the
Council approves, or after at least five per cent of the number of
residents of the member municipalities registered to vote in the
preceding state election signs a petition. Proposed amendments
shall become effective if a majority of the voters in the member
municipalities approve at a biennial state election held at least
ninety days following the Council's vote to submit the amendments.
Charter, Article Seven, s.s. 1, 2.


QUESTION:


Is the Council a state or municipal agency for purposes
of the conflict of interest law?


ANSWER:


The Council is a municipal agency for purposes of the
conflict of interest law and, as a result, you are a municipal
employee of each of the Council's member municipalities.


DISCUSSION:


There is no question that the Council is a governmental
entity because governmental actions created it, it performs
essentially governmental functions, government officials control it
and it receives public funds. See e.g., EC-COI-95-2; EC-COI-94-7;
EC-COI-92-26
. The issue is whether the Council is a state[4/] or
municipal[5/] entity for purposes of the conflict of interest
law.[6/]

We have said that the focus of the analysis is on the
level of government a public agency serves. EC-COI-95-2;
EC-COI-91-3
. "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-91-3.
"We have considered which level of government funds and oversees
the entity, and whether the entity carries out functions similar to
those of a particular level of government." EC-COI-95-2. We
conclude, based upon the factors below, that the Council is a
municipal agency for purposes of the conflict law, although the
Council has a few characteristics which we have associated with
state agencies.

Municipalities oversee and primarily fund the Council,
and the Council's functions are aimed at serving municipalities
regarding, for example, planning, economic development and safety
issues. Most of its operating budget is funded from the municipal
assessments and service charges. The Council's Director of Finance
has the power and duties of a municipal treasurer. Municipalities,
rather than any state agency, choose members to serve on the
Council. The Legislature has expressly given the Council certain
municipal powers, duties and attributes regarding the handling of
finances and tort liability. The Legislature has no role in
amending the Charter or in a municipality's decision to join or
withdraw from the Council. None of the Council members is required
to be a state official or is appointed by state officials. Its
enabling legislation and Charter do not indicate that state
agencies control it.

We also observe that, in the enabling legislation for the
Council, the Legislature expressly allocated certain functions of
the former County to the Commonwealth while delegating other
functions to the Council. That division of functions indicates that
where a public function at the state level of government was
required, the Legislature intended the state to control those
functions. As a result, the state has determined that it should
control the Jail, House of Correction, Registry and courts that
were subject to the former County's control. Although the
Legislature determined that all of the former County's functions
would be transferred to the Commonwealth if the Council were not
created, the municipalities of the former County, rather than any
state agency, approved the Charter. Similarly, although an act of
the Legislature dissolved the County and outlined the procedure for
creating the Council, it was the decision of the member
'municipalities, rather than a state-mandated requirement, to
approve the Charter in order to continue to have some of the
regional services of the former County. See e.g. EC-COI-92-26
(Martha's Vineyard Collaborative created by municipalities as a
means by which municipalities fulfill their educational
responsibilities and is an instrumentality of those
municipalities); EC-COI-91-3 (the municipal level of government has
the most direct and substantial interest in decisions of the
Martha's Vineyard Commission). The Council is not, as the statutory
definition of "state agency" requires, an "instrumentality within
... any independent state authority, district, commission,
instrumentality or agency" because the Council is accountable to
only its members, who represent their respective municipalities,
rather than to any current state official or state agency. See
McMann v. State Ethics Commission, 32 Mass. App. Ct. 421, 424-425
(1992).

In contrast, we concluded that the Metropolitan Area
Planning Council (MAPC) is a state, rather than municipal, agency
for purposes of the conflict law in EC-COI-95-2 even though the
MAPC provides some services similar to the Council's. For example,
among other services, the MAPC conducts research and/or studies to
help identify needs and formulate goals for the development and
redevelopment of resources and facilities within MAPC's district.
Id. These services, generally advisory in nature, are intended to
supplement, rather than replace or regulate, the activities of
local bodies such as planning boards, zoning boards or boards of
aldermen. Id. We observed, however, the significance of the
state's, rather than the municipalities,' control over the MAPC.

There are major differences between the MAPC

Page 738


and the Council. Approximately one-quarter of the MAPC members and
ex officio members are selected by the Governor or are employees of
state agencies and authorities while none of the Council is or is
required to be a state employee or appointed by state officials.
The Legislature created the MAPC to provide a "state regional
planning function that is separate and distinct from each of its
member municipalities' local planning bodies." EC-COI-95-2
(emphasis added). The MAPC was established as a state agency[7/]
while the Council was established only after municipalities
accepted the Charter. Finally, the legislation that dissolved
Hampshire County government shows the Legislature retained for the
Commonwealth functions of greater interest to the state while
delegating to the Council other functions of greater interest to
municipalities.

Although this is a hybrid entity, including both
municipal and state attributes, we conclude that the Council has
more attributes of a regional municipal entity. The Council,
therefore, is a municipal agency for purposes of the conflict of
interest law.

In McMann v. State Ethics Commission, 32 Mass. App. Ct.
421, 428 n.5 (1992), the Appeals Court held that a regional school
district is an instrumentality of each of its member
municipalities, rather than an independent municipal entity, and
that a member of the district's school committee is a municipal
employee for purposes of the conflict of interest law. Since then,
we have concluded that similar regional municipal agencies are also
instrumentalities of each member municipality. See e.g.,
EC-COI-92-26; EC-COI-92-27; EC-COI-92-40 (the Martha's Vineyard
Land Bank Commission, to which each member town elects a
representative, is not an independent municipal entity but rather
an instrumentality of each member town). We have further concluded
that a member of a regional municipal agency is a municipal
employee of each member municipality. See e.g., EC-COI-94-9 (a
member of the Hampden-Wilbraham Regional School Committee who was
elected by the Wilbraham voters is a municipal employee of both
Wilbraham and Hampden). It follows, therefore, that, in your
capacity as a Councilor, you are a municipal employee[8/] of each
of the Council's member municipalities for purposes of the conflict
law, although the Town of Amherst appointed you to the Council.
EC-COI-94-9.[9/]

--------------------------------
*Pursuant to G.L. c. 26813, s.3(g), the requesting person has
consented to the publication of this opinion with identifying
information.

[1/] The Council may impose a regional assessment up to the
rate of .0001 of the equalized valuation of each member
municipality as reported to the General Court by the Commissioner
of Revenue in accordance with G. L. c. 58, s. 10C. Charter, Article
Five, s. 6(a)
. The Council's operating budget is approximately S
1,000,000. The operating budget for the Hampshire Care nursing
facility is approximately $5,000,000. In addition, the Council
operates an insurance pool for municipalities. which is funded by
premiums municipalities or municipal employees pay.

[2/] The Council assumed certain unfunded pension liabilities
of former County employees. St. 1998, c. 300, s. 18, amending s. 6,
c. 48 of the Acts of 1997
. Those liabilities have been funded by
contributions from the member municipalities.

[3/] You were appointed, rather than popularly-elected,
because there was a tie in the municipal election. Under s. 5 of
the Charter, a vacancy because of a "failure to elect to the office
of Council of Governments councilor shall be filled by appointment
in the towns by the board of selectmen."

[4/] "State agency," any department of a state government
including the executive, legislative or judicial, and all councils
thereof and thereunder, and any division, board, bureau,
commission, institution, tribunal or other instrumentality within
such department, and any independent state authority, district,
commission. instrumentality or agency, but not an agency of a
county, city or town. G. L. c. 268A, s. 1 (p).

[5/] "Municipal agency," any department or office of a city or
town government and any council, division, board, bureau,
commission. institution, tribunal or other instrumentality thereof
or thereunder. G. L. c. 268A, s. 169.

[6/] We need not consider whether the Council is a county
entity because the County as a form of government dissolved
pursuant to legislation.

[7/] "First established pursuant to St. 1963, c. 668, the MAPC
was funded by an appropriation of the General Court, -charged as
assessments upon the various cities and town comprising the
district,' such assessment to be certified by and paid to the state
treasurer." EC-COI-95-2. We noted that St. 1963, c. 668 amended G.
L. c. 6, s. 17 to place the MAPC under the super-vision of the
Governor. Id.

[8/] "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 G.
L. c. 268A, s. 1 (g).

[9/] Your status as a municipal employee of each member
municipality may be significant in applying other sections of G. L.
c. 268A to your conduct. We recommend that you seek further advice
from the Legal Division concerning your specific circumstances.

Page 739


End of Decision