April 11, 1995

FACTS:



You are counsel to the Metropolitan Area Planning Council.
You seek an opinion concerning whether the council is a state,
county, municipal or regional municipal agency for purposes of the
conflict law.

The Metropolitan Area Planning Council ("MAPC") was
established by Chapter 668 of the Acts of 1963 to conduct research
and prepare and compile data, maps, charts, tables and plans for
the physical, social and economic improvement of the metropolitan
area planning district. Under the 1963 Act, the metropolitan area
planning district consisted of "each city or town which is a member
of the metropolitan sewage district, the metropolitan water
district or the metropolitan parks district" ("Member
Municipality"), each city or town which is contiguous to a Member
Municipality and which applies to the MAPC to be included, and any
other city or town whose application to the MAPC is approved by a
majority vote of the representatives on the MAPC. The MAPC was
funded by an appropriation of the General Court, "charged as
assessments upon the various cities and towns comprising the
district," such assessment to be certified by and paid to the state
treasurer. Chapter 668 amended G.L. c. 6, s.17 so as to place the
MAPC under the supervision of the Governor.

In 1970, the powers and duties of the MAPC were further
defined by Chapter 849 of the Acts of 1970, now codified under G.L.
c. 40B, s.s. 24 - 29. Under G.L. c. 40B, s.26, the metropolitan
area planning district, is "a public body politic and corporate,"
which consists of 98 cities and towns, and any city or town which,
in accordance with the statute, applies to and is approved by a
majority vote of the council. Such municipalities may leave the
MAPC only by legislative act. Three towns have joined the MAPC
voluntarily.

The MAPC "shall maintain the fullest cooperation with cities
and towns in the district and shall render them all possible
assistance in their planning activities, especially where two or
more of the municipalities have common problems." G. L. c. 40B,
s.25. It "shall have and exercise the same powers and duties of
the" Southeastern Massachusetts Regional Planning District, which
is established by the Executive Director of the Massachusetts
Office of Business Development pursuant to G.L. c. 40B, s.9. Id.
Thus, among other things, the MAPC is empowered to conduct research
and/or studies and to compile information necessary for identifying
problems and needs of the district, and for the formulation of
goals, objectives, policies, plans and programs in relation to the
development and redevelopment of the district's resources and
facilities. G.L. c. 40B, s.14. While the MAPC is empowered to
approve or disapprove plans for the development or redevelopment of
the district or portions thereof, such powers are largely advisory.
Id.

Pursuant to state statutes, e.g., the Subdivision Control Law
(G.L. c. 41, s.s. 81K - 81GG) and the Zoning Act (G.L. c. 40A),
Massachusetts cities and towns regulate planning locally. For
example, subdivision control is regulated exclusively on a town-by-
town basis by local planning boards. Decisions to grant or deny
zoning special permits and variances are likewise made at the local
level by such bodies as planning boards, zoning boards, boards of
aldermen, etc. The MAPC's planning activities do not replace
or in any way regulate the activities of these local boards. Neither
does the MAPC take over or assume the zoning authority of local
legislative bodies. Each MAPC Member Municipality continues to
exercise autonomous planning powers which are neither subject to
MAPC control nor controlled by MAPC. The MAPC performs only a
state-mandated regional planning function, which, as noted above,
is generally advisory in nature. It conducts its affairs
autonomously. G.L. c. 40B, s.26. For example, the MAPC is no
longer under the Governor or his supervision. See St. 1970, c.
849, s.1. However, the MAPC is required to make annual reports
both to member municipalities and to the General Court.

MAPC members, who are uncompensated, include one
representative from each city and town of the district[1], 21
gubernatorial appointees, a sufficient number of whom shall
represent the viewpoints of minority and low-income groups, and the
following officers or their designees, who shall be members ex
officiis: the Chairman of the Massachusetts Bay

Page 610

Transportation Authority, the Chairman of the Massachusetts Port
Authority, the Chairman of the Massachusetts Turnpike Authority,
the Commissioner of Public Safety, the Commissioner of the
Metropolitan District Commission, the Chairman of the Board of
Directors of the Massachusetts Water Resources Authority, the
Commissioner of Highways, the Executive Director of the
Massachusetts Office of Business Development, the Secretary of
Communities and Development, the Commissioner of Environmental
Management, the Commissioner of Environmental Protection, the
Chairman of the Boston Redevelopment Authority, the Commissioner of
Public Works of the City of Boston and the Executive Director of
the Boston Water and Sewer Commission.

The MAPC Executive Committee is composed of individuals
elected from among the representatives of the cities and towns, the
gubernatorial appointees and the ex officio members. Pursuant to
G.L. c. 40B, s.28, this Committee takes action in the name of, and
on behalf of, the MAPC and is generally responsible for the conduct
of MAPC's affairs. The member municipalities have no veto power in
the affairs of the MAPC or its Executive Committee.

Local funding of MAPC is made via an assessment voted by MAPC,
with no review by the individual municipalities. The MAPC's
budgetary decisions are not subject to local control.
Significantly, the General Laws give the MAPC direct taxing
authority, and the per capita assessments voted by MAPC are
collected by the state Treasurer through the "cherry sheet" issued
annually to each city and town under G.L. c. 59, s.20. Municipal
payments are made to the state Treasurer and credited to the MAPC
fund. G.L. c. 40B, s.29. The MAPC may also accept funding "by
gift, grant or contract from any source including grants, bequests,
gifts, or contributions made by any individual, corporation,
association, public authority, or agency or subdivision of the
federal or state governments." Id.; see also G.L. c. 40B, s.14.[2]
It may sue and be sued "upon the same conditions that a town may
sue or be sued." G.L. c. 40B, s.14.

The MAPC has spent the last seven years developing MetroPlan
2000, which is a regional plan for the development of the
infrastructure of eastern Massachusetts. The MAPC has also
conducted regional studies concerning the impact of the Central
Artery/Third Harbor Tunnel project. Currently, pursuant to its
Work Program for 1994 - 1995, the MAPC is, among other things,
coordinating with state and other agencies in the development of
the Regional Transportation Plan and the State Implementation Plan,
and with state water resource policy forums, including the MWRA
Wastewater Advisory Committee, the Water Resources Commission, and
the Massachusetts Bays Program, regarding regional water systems
planning.


QUESTION:



Is the MAPC a state, county, municipal or regional municipal
entity for purposes of the conflict law?



ANSWER:



The MAPC is a state agency and its members, who are
uncompensated, are "special state employees."


DISCUSSION:



Clearly, the MAPC is a government instrumentality. It is
created by statute as "a public body politic and corporate." G.L.
c. 40B, s.26. Its members are chosen by government officials and
perform essentially governmental functions, and it receives and
expends public funds. See EC-COI-94-7; 89-24; 89-1. Thus, we are
left to consider whether the MAPC is a state, county, municipal or
regional municipal entity. The focus of such analysis is on "the
level of government to be served by the agency in question." EC-
COI-90-2, quoting Buss, The Massachusetts Conflict of Interest
Statute: An Analysis
, 45 B.U. Law Rev. 299, 310 (1965).
Previously, 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. See, e.g.,
EC-COI-90-2; 83-74; 82-25
. For example, in EC-COI-83-74, we
concluded that a local private industry council ("PIC") is a
municipal agency because municipal elected officials played a role
in the selection of PIC members and, together with the PIC, in the
implementation of the federal job training act. In EC-COI-82-25,
we concluded that a school district was a municipal agency because
it carried out the municipal function of providing public
education.

Having reviewed the enabling legislation for the MAPC, we
conclude that, although the MAPC has certain local characteristics,
it is a state agency for purposes of the conflict law. This
conclusion rests on the fact that the MAPC performs a state
regional planning function that is separate and distinct from each
of its member municipalities' local planning bodies. The MAPC, and
not the member municipalities, exercises exclusive control over the
MAPC's affairs. With regard to funding, member municipalities make
their contributions to the MAPC through the state Treasurer, but
play no role in the formulation or implementation of the MAPC's
budget.

Page 611

Member municipalities are not the MAPC's sole funding source,
however. Rather, the MAPC is empowered to accept funds from other
levels of government (e.g., federal and state agencies or
authorities) and from private individuals, corporations and
associations. Further, although each Member Municipality elects a
representative to the MAPC, approximately one-quarter of MAPC
members and ex officio members are selected by the Governor or are
employees of state agencies and authorities. Lastly, our review of
the history of the MAPC's enabling statute persuades us that this
entity originally existed as a state agency. St. 1963, c. 668.
Although the MAPC's structure was changed as a result of St. 1970,
c. 849, s.3, nothing in that Act evinces a legislative intent to
make the MAPC an agency of a county, city or town.

To the extent that EC-FD-79-2 and EC-COI-81-48 reach a
different result, we decline to follow these opinions.

In EC-FD-79-2, we were asked to consider whether the MAPC is
a "governmental body" subject to the financial disclosure
requirements of General Laws Chapter 268B. Section 1(h) of Chapter
268B defines a governmental body as "any state or county agency,
authority, board, bureau, commission, council, department,
division, or other entity, including the general court and the
courts of the commonwealth."[3] The Commission concluded that "the
MAPC is a hybrid agency, having both state and local
characteristics. However, its membership, control,
responsibilities and objectives are primarily local, rather than
state-wide or county-wide, in nature. For these reasons, MAPC is
not a `governmental body' as that term is defined in Chapter 268B.
The `multi-municipal' character of the MAPC renders it a `special
district' under Section 21 of that Chapter."[4] In EC-FD-79-2,
however, we declined to express an opinion "as to the appropriate
characterization of the MAPC under any other statute."

In EC-COI-81-48, we ruled that the municipal exemption
contained in s.4 of Chapter 268A prevented a state employee, who
was also a municipal representative to a planning council, from
voting on matters within the purview of his state agency. The
municipal exemption was applicable, we reasoned, because as a
city's representative to the planning council, the state employee
held "an appointive office in a district within the meaning of
Section 4."

Our thinking regarding the character of "districts" has
evolved since 1981, particularly in light of the Appeals Court's
decision in McMann v. State Ethics Commission, 32 Mass. App. Ct.
421 (1992). Prior to McMann, this Commission had been of the view
that a regional district is an independent municipal agency and is
not a "municipal agency" within the meaning of G.L. c. 268A,
s.1(f).[5] This view was rejected by the Appeals Court, which in
McMann concluded that a regional school committee is an
"instrumentality" of each of its member municipalities. "In
reaching this conclusion the Court considered the ordinary and
approved use of the word `instrumentality' in the statute; the
formation, operation and purpose of a regional school district; and
the purpose of G.L. c. 268A. Id. at 425-428. The Court found that
the municipalities use the school district as a means to fulfill
their statutory obligation to provide education and that the
municipalities played a substantial role in the creation of the
district and the district's financial matters. Id. at 427." EC-
COI-92-26
.

Applying these considerations to the MAPC, we do not find that
the MAPC is an "instrumentality" of its member municipalities.
The MAPC was created by the state Legislature, not by the Member
Municipalities in their discretion, to perform a state-mandated
regional planning function. The MAPC's enabling legislation
designates which municipalities shall be members of the MAPC.
Member municipalities may leave the MAPC only by act of the
Legislature. Moreover, membership on the MAPC is not limited to
the cities and towns, but includes 21 gubernatorial appointees, and
eleven ex officio members from state agencies or authorities.

The MAPC does not act as the means by which the member
municipalities perform mandated local planning functions. Rather,
each MAPC Member Municipality continues to exercise autonomous
planning powers which are neither subject to MAPC control nor
controlled by MAPC.

The local funds contributed to the MAPC are determined by vote
of the MAPC; such assessments are not subject to local review.
Once transferred out of the Member Municipalities' custody, the
contributed funds are not subject to local control through
oversight of the MAPC's budget or otherwise.

Finally, the individual Member Municipalities exercise no
control over the activities of the MAPC, which is an autonomous
body.

In short, to the extent that the MAPC operates as a means to
carry out a governmental function, that function is a state rather
than a municipal one. Thus, we conclude that the MAPC is a "state
agency" as it is an instrumentality thereof. G.L. c. 268A, s.1(p).

Page 612

Accordingly, members of the MAPC, who are uncompensated, are
"special state employees."[6]


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


[*] Pursuant to G.L. c. 268B, s.3(g), the requesting person
has consented to the publication of this opinion with identifying
information.

[1] The city and town representatives "shall be appointed by
the mayor or, if the city has a manager, by the city manager and in
the case of a town, by the board of selectmen or, if the town has
a manager, by the town manager...." G.L. c. 40B, s.24.

[2] According to its 1994 - 1995 Work Program and Budget:
"Almost two-thirds of the [MAPC's] budget each year is drawn from
outside resources that the [MAPC] receives under contract with
other agencies."

[3] "State agency" is not a defined term in Chapter 268B.
Chapter 268A, s.1(p) defines "state agency," as "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."

[4] The reference to "Section 21 of that Chapter" in fact
refers to s.21 of St. 1978, c. 210 which inserted G.L. c. 268B.
Section 21 of Chapter 210 provides, in relevant part: "The state
ethics commission established by chapter 268B of the General Laws,
inserted by section 20 of this act, is hereby authorized and
directed to prepare legislation establishing financial disclosure
requirements for officials and employees of cities, towns, and
special districts of the commonwealth."

[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.1(f).

[6] "Special state employee," a state employee:

(1) who is performing services or holding an office,
position, employment or membership for which no
compensation is provided, or

(2) who is not an elected official and

(a) occupies a position which, by its classification in
the state agency involved or by the terms of the contract
or conditions of employment, permits personal or private
employment during normal working hours, provided that
disclosure of such classification or permission is filed
in writing with the state ethics commission prior to the
commencement of any personal or private employment, or

(b) in fact does not earn compensation as a state
employee for an aggregate of more than eight hundred
hours during the preceding three hundred and sixty-five
days. For this purpose compensation by the day shall be
considered as equivalent to compensation for seven hours
per day. A special state employee shall be in such a
status on days for which he is not compensated as well as
on days on which he earns compensation. G.L. c. 268A,
s.1(o).


Page 613

End Of Decision