April 7, 2005

 

QUESTION:

 

Are members and employees of the School Building Authority and members of the School Building Advisory Board created pursuant to St. 2004, c. 208 (Act) subject to the conflict of interest law, G. L. c. 268A?

 

ANSWER:

 

Yes. Our conclusion that the Authority is subject to the conflict of interest law is based on express language in the Act which specifies that the School Building Authority's operations "shall be subject to G. L. c. 268A." In addition, as discussed in detail below, we conclude that the School Building Advisory Board is subject to G. L. c. 268A because the Board was created by statute; will have formal procedures and work product, the clear intent of the Legislature to have the Authority's operations subject to c. 268A; and the Board's role in developing governmental policy.

 

FACTS:

 

The Massachusetts Municipal Association (MMA) has designated you as its appointee to the new School Building Advisory Board (Board), described in detail below. You are the Deputy Town Administrator for the Town of Brookline.
 

School Building Authority

Pursuant to the Act, the Commonwealth created the "Massachusetts School Building Authority" (Authority) as a "public instrumentality" to serve as "an independent public authority not subject to the supervision and control of any other executive office, department, commission, board, bureau, agency or political subdivision of the commonwealth except as specifically provided in any general or special law. The exercise of the authority of the powers conferred . . . shall be considered to be the performance of an essential public function." [1]

The Authority consists of the State Treasurer (who serves as chairperson), the Secretary of Administration and Finance, the Commissioner of Education, and four (4) additional members appointed by the State Treasurer. Two of these additional members "shall have practical experience in educational facilities planning, school building construction, or architecture and school design." The two other members "shall be persons in the field of education with demonstrated knowledge of Massachusetts curriculum frameworks and other relevant federal and state educational standards." [2]

Members of the Authority serve without pay. The chairperson of the Authority must report, at least annually, to the Governor and the Legislature, "to assist the executive and legislative branches in coordinating educational, community development and fiscal policies of the commonwealth." [3] The chairperson of the Authority appoints an executive director, who supervises the administrative affairs and general management and operations of the Authority. [4]

The Act specifies that "the operations of the authority shall be subject to chapter 268A and chapter 268B and all other operational or administrative standards or requirements to the same extent as the office of the state treasurer." [5]

The Authority must "do all things necessary or convenient to carry out the purposes" of G. L. c. 70B, as amended by the Act. Chapter 70B of the General Laws is the "School Building Assistance Program," established as the "largest capital grant program operated by the Commonwealth" to assist municipalities in meeting the cost of constructing school facilities. [6] The Authority's powers include: collecting and maintaining data on all public schools facilities in the Commonwealth; performing or commissioning a needs survey to ascertain capital construction, reconstruction, maintenance and other capital needs; developing a long term capital plan; adopting and amending bylaws and rules, regulations and procedures for conducting business of the trust [7] as the Authority shall deem necessary to carry out c. 70B; establishing and maintaining reserves; disbursing amounts due to municipalities and school districts; investing funds of the trust; obtaining insurance; suing and being sued and prosecuting and defending actions relating to the trust; engaging accounting, management, legal, financial, consulting and other professional services necessary to the operations of the trust. [8]

The Authority must "complete final audits on all projects on the list . . . for which a final audit had not been completed as of the effective date" of the Act and must "adjust payments in accordance with the result of those audits." [9] The Authority must provide financial assistance under the Act for the "projects on the list . . . and not yet approved by the board of education prior to the effective date" of the Act. However, the Authority "may deviate from the order [on the list] if it determines that it is necessary to do so in order to comply with federal income tax laws or regulations related to the tax exemption of indebtedness incurred by the authority or to provide grants to municipalities or districts whose short-term borrowing would otherwise terminate prior to the award of a grant." [10]

The Authority must file a progress report, and a final report no later than April 1, 2005, "along with any regulatory and legislative proposals necessary to carry its recommendations into effect," with the Secretary of Administration and Finance, the House and Senate Clerks, the chairpersons of the House and Senate Committees on Ways and Means, and the House and Senate chairs of the Joint Committee on Education, Arts and Humanites. [11] In turn, the Secretary of Administration and Finance shall submit a report on recommended changes to G. L. c. 70B, § 10, no later than May 1, 2005, with proposed legislation, to the Clerks of the House and Senate, the House and Senate Committees on Ways and Means, and the Joint Committee on Education, Arts and Humanities.

The Authority shall propose draft regulations, after holding no fewer than five public hearings, and submit draft regulations to the Legislature's Joint Committee on Education, Arts and Humanities for its review and comment. The Authority shall promulgate regulations by July 1, 2006. [12]
 

School Building Advisory Board

In addition, the Act created, as part of the Authority, the "school building advisory board" (Board) made up of the following: "the state auditor or his designee, the inspector general or his designee, and the executive director of the authority, who shall serve as the secretary to the advisory board and shall be a nonvoting member of the board, and 15 members to represent the following nongovernmental organizations, to be appointed by those organizations." The MMA, which designated you, is one of the "non-governmental" organizations specified in the Act. [13]

"The [Board] shall assist the authority in the development of general policy regarding school building construction, renovation, reconstruction, maintenance and facility space, preservation of open space and minimization of loss of open space, thoughtful community development, cost management and shall provide technical advice and input to the authority." [14]

The Board is to provide input to the Authority about a wide variety of matters. For example, the Board will consult with the Authority in the review of existing regulations, cost and size standards, the appropriate formula for facilities grants, the best means to encourage energy-efficient schools, the advisability of allowing municipalities and school districts to establish funds for building maintenance, and the advisability of further changes to G. L. c. 70B in accordance with construction reform.

In addition, the Authority and the Board will consider the feasibility of requiring prototype designs for schools, the feasibility of allowing public-private partnerships to construct schools, the feasibility of the use of lease-purchase in providing educational space, and the best means to assist in meeting the building needs of charter schools and educational collaboratives. Further, both the Authority and the Board will consider the feasibility of requiring future school buildings to be constructed to facilitate early education and care programs, full day kindergarten, proper tutorial space, and services beyond instructional services that may be best provided to students in a school setting. Finally they will consider uses that extend beyond the typical school day, recreational and other purposes for community uses, the introduction of wireless technology in the classroom, and the feasibility of providing financial incentives to communities that have adopted zoning policies or other initiatives that encourage increased affordable housing production. [15]

"Notwithstanding any general or special law to the contrary, the [Authority], with the advice of the [Board], shall conduct a comprehensive analysis of the needs of municipal and regional school districts for projects eligible for reimbursement under chapter 70B of the General Laws beginning July 1, 2007." [16] Although the Authority decides pending applications, it is your understanding that the Board will review and comment on pending applications and ongoing approved projects.

In consulting with the Authority about the above subjects, the Board will review and be able to provide written comments to the Authority. It is our understanding that the Board will not be tasked with drafting regulations. However, the Board, as part of its consulting function, will review and provide written comments to regulations the Authority drafts. The Board must meet at least every quarter. It is our understanding that the meetings shall be public, contain formal agendas, and minutes will be kept.

 

DISCUSSION:

 

The issues are whether members and employees of the Authority and/or members of the Board are subject to G. L. c. 268A.
 

The Authority

The Act states, "The operations of the authority shall be subject to chapter 268A . . . and all other operational or administrative standards or requirements to the same extent as the office of the state treasurer," which evidences a clear legislative intent to apply the conflict of interest law to the Authority's members and employees. In addition, the Act specifies that the Authority is a "public instrumentality" and performs "an essential public function." State officials control the Authority and it expends state funds. Considering these attributes, we conclude that the Authority is a "state agency" [17] for purposes of the conflict of interest law.
 

The Board

With respect to the Board, we also conclude that it is a "state agency" as that is defined in the conflict of interest law. In determining whether an advisory board is a state agency, or otherwise a governmental agency, subject to G. L. c. 268A, the Commission has applied a multi-factored analysis. The analysis considers the following factors:

(1) the impetus for creation of the committee (e.g. by statute, rule, regulation or otherwise);

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

(3) whether committee members will perform functions or tasks ordinarily expected of state employees, or will they be expected to represent outside private viewpoints; and

(4) the formality of the committee's work product, if any.

Although advisory committees created by law are generally considered to be public agencies, such a factor, alone, is not dispositive. [18] We consider all of these factors. [19]

Here, the Board was created pursuant to the Act. It was not created as a temporary body to meet for a single purpose. When "a committee is a permanent and mandatory component to the implementation of a state statute," [20] the Commission has considered that fact to be an important factor in determining state agency status.

As Sections 16, 54, and 56 of the Act make clear, the Board will provide substantive input to the Authority. The Board will provide written comments to the Authority about draft regulations, and a wide variety of policies and considerations the Authority must review in developing school facilities. There will be formal meetings, at least on a quarterly basis. Meeting minutes will be kept, and meetings will be open to the public. Votes will be taken, with the executive director of the Authority operating as secretary to the Board and as a nonvoting member of the Board. The Act requires the Authority to accomplish tasks by certain dates, in consultation with the Board. Considering these facts, we conclude that the Board will not be functioning on an informal basis.

Although the Act obviously is intended to have representatives from a variety of interested parties serve on the Board, such as representatives from construction, engineering, architectural, and taxpayer groups, the Act is not set up to allow only for outside private viewpoints, on an ad hoc, informal basis. [21] The Board "shall assist . . . in the development of general policy regarding school building construction, renovation, reconstruction, maintenance and facility space," among other functions. In addition to the state auditor or his designee, the inspector general or his designee, and the executive director of the Authority, many of the representatives from "non-governmental organizations," as noted above, are governmental employees. These include the Massachusetts Municipal Association, Massachusetts Association of School Committees, Massachusetts Mayors Association, Massachusetts Association of School Superintendents, Massachusetts Association of Regional Schools, Massachusetts Teachers Association, and Massachusetts Federation of Teachers. Thus, many of the individuals on the Board are serving because they are already governmental officials and are serving to represent various governmental interests.

Finally, the Authority must consult with the Board about a comprehensive set of regulations and laws that relate to most (if not all) aspects of constructing public schools. As a result, the Board will provide written comments about those regulations and laws. The Authority, "with the advice of the" Board, "shall conduct a comprehensive analysis of the needs of municipal and regional school districts for projects eligible for reimbursement" under G. L. c. 70B. These facts suggest that the Board also will be producing, in addition to its written comments, formal work products.

Considering these facts, including that the Act states, "the operations of the [A]uthority shall be subject to chapter 268A," we conclude that the Board is a state agency for purposes of the conflict of interest law. [22] Accordingly, because Authority members and Board members are not compensated, they are "special state employees" [23] for purposes of the conflict of interest law.

 






[1] St. 2004, c. 208, § 2.

[2] Id.

[3] Id.

[4] Act, § 15.

[5] Id.

[6] G. L. c. 70B, § 1.

[7] The "trust" is the Massachusetts School Modernization and Reconstruction Trust, as established by G. L. c. 10, § 35BB. The trust was created to hold receipts from certain sales taxes. The funds in the trust are to be use "exclusively for the purposes of the authority." G. L. c. 10, § 35BB(c), as inserted by St. 2004, c. 210, § 1.

[8] No later than June 30th each year, the Authority must submit a report to the Governor, the House and Senate Committees on Ways and Means, the Joint Committee on Education, Arts and Humanities, the Joint Committee on Natural Resources, the House and Senate Committees on Long-Term Debt and Capital Expenditures, and the Joint Committee on Local Affairs. This report will analyze the anticipated financial needs for school facilities projects that qualify for assistance and include a listing of each school building within the state, together with a description of its size, capacity, age and state of maintenance. Also, the report shall describe whether the school building is likely to require construction, enlargement, reconstruction, rehabilitation or improvement due to such factors as deterioration, lack of adequate facilities to meet educational standards and anticipated increases in school-age population. Act, § 41.

[9] Act, § 48.

[10] Act, § 50.

[11] Id.

[12] Act, § 55.

[13] Act, § 16. The non-governmental organizations are: The Massachusetts Municipal Association; the Massachusetts Association of School Committees; the Massachusetts Mayors Association; the Massachusetts Association of School Superintendents; the Massachusetts Association of Regional Schools; the Massachusetts Building Trades Council; the Massachusetts chapter of the Associated Builders and Contractors, the Massachusetts Alliance of Small Contractors, the American Council of Engineering Companies of Massachusetts, the Associated Subcontractors of Massachusetts, the American Institute of Architects-Massachusetts; the Massachusetts Smart Growth Alliance; the Massachusetts Taxpayers Foundation; Associated General Contractors of Massachusetts and acting jointly, the Massachusetts Teachers Association and Massachusetts Federation of Teachers.

[14] Id.

[15] Act, § 54.

[16] Act, § 56.

[17] "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, but not an agency of a county, city or town." G. L. c. 268A, § 1(p).

[18] EC-COI-86-4.

[19] EC-COI-93-22.

[20] EC-COI-93-22; EC-COI-87-17.

[21] Compare EC-COI-93-22 (Council members served at pleasure of the Governor and Council not required to remain in existence for any definitive period, Council not created by statute, rule, or regulation, and Council member principally serve to provide Governor with outside viewpoints was considered to be ad hoc).

[22] We found nothing in the Act that expressly or impliedly exempts Board members from any sections of G. L. c. 268A. To the extent that the application of certain sections in the conflict of interest law, such as §§ 4, 5, 6, 7 or 23, may restrict the Board from accomplishing its statutory mandate, the Legislature should address those concerns.

[23] G. L. c. 268A, § 1(o)(1).

 

End of Opinion