June 8, 1987

 

FACTS:


The Water Resources Management Advisory Committee (Committee)
of the Department of Environmental Quality Engineering (DEQE) was
established as a mandatory committee by St. 1985 c. 592 (the Act)
to review the development of standards, rules and regulations for
water resources management and to recommend methods by which
existing water management practices and the laws regulating them
may be supplemented and improved and their administration financed.
Included in this general power is the authority to review and make
recommendations concerning the adoption or amendment of regulations
establishing procedures and forms for filing notifications and
registration statements. The Committee may also adopt, review and
amend: regulations establishing criteria, standards and procedures
for issuing permits; requirements for the content and form of
permit applications; reasonable permit application fees, and
requirements for monitoring inspection and reporting of water
withdrawals and usage by permitted water users. The Act requires
that these regulations be developed in two phases within certain
time frames: first, the regulations establishing a water withdrawal
registration system, and second, the regulations establishing a
permit system for withdrawals of water.

DEQE must consult with the Committee before it adopts such
regulations. The requirement of registration statements or permit
applications will not commence until initial regulations are
established, and the Committee will continue to review the
development and may make recommendations concerning supplementation
or amendment. Under St. 1985 c. 592, a representative of each of
eleven different organizations or constituencies serves on the
Committee. Committee members are appointed by the Governor and
serve without compensation. Members are representatives of the
following organizations: Associated Industries of Massachusetts,
the Massachusetts Municipal Association, the water works industry,
an agricultural association, a consumer organization, a water well
drill association, an environmental organization, a regional
planning agency, and two representatives knowledgeable in water
management affairs. Mr. X was chosen as the member knowledgeable
in water management. He is a partner in a consulting engineering
firm and he anticipates the possible receipt of compensation
regarding registrations or permit applications on behalf of
clients. Another potential appointee is Mr. Y who would represent
the water works industry; Mr. Y is the superintendent of the
ABC Board. He anticipates filing registrations and permit applications
which would be required by the regulations drafted by DEQE. There
is no requirement in the Act which would mandate the water works
industry representative be employed by a water system operator.

The Committee is given explicit authority to consult regarding
the enforcement of the Act and the regulations adopted thereunder.
By policy of the Commissioner, dated May 11,1987, excluded from the
Committee's role is advice on specific, individual cases, whether
such cases involve permit or enforcement issues or both. Committee
members are prohibited from reviewing specific permit applications
at any time while those applications are pending, and from advising
the DEQE regarding the modification, supplementation or revocation
of a specific permic Committee members are also prohibited from
advising the DEQE on specific enforce-

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ment decisions about compliance with a particular regulation.
Individual permit or enforcement decisions are intended by the
Commissioner's policy to be outside the scope of the Committee's
official responsibility.
 


QUESTIONS:


1. Are the members of the Committee "state employees" within the
meaning of G.L. c. 268A, s.1(q)?

2. Does G.L. c. 268A permit Committee members to file with DEQE
registration statements or permit applications on behalf of their
organizations?
 


ANSWERS:


1. Yes.

2. Yes, provided the Commissioner's policy dated May 11, 1987
remains in full force and effect.
 


DISCUSSION:


1. Jurisdiction


In EC-COI-86-4, the Commission concluded that members of the
Administrative Penalties Advisory Committee (Committee) of DEQE are
state employees within the meaning of the conflict law. The
analysis herein is essentially the same as in that opinion. In both
cases, the Committees are mandatory and permanent components to
the implementation of a state statute, as opposed to temporary
advisory committees which the Commission has regarded in other
cases as exempt from the definition of state agency. In both cases,
the functions of the Committees appear to be permanent and ongoing,
and include a review of the development of regulations on a
continuing basis.

A critical factor in finding jurisdiction is that the Committee
is performing essentially governmental functions by assisting in
the work product of the state agency. The Act envisions regulation
formulation, if not actual drafting, to begin at the Committee
level. Thus, the Committee is contemplated as a working committee
with a substantive role in the regulation process, and not simply
as a sounding board for constituent groups. Agency regulation
drafting is a governmental function customarily performed by
governmental employees. Therefore, the Commission concludes that
members of the Committee are state employees within the meaning of
G.L. c. 268A, s.1 et. seq., and, as a result, subject to the
restrictions set forth therein. In view of their unpaid status,
Committee members are "special state employees" which means that
certain provisions of G.L c. 268A apply less restrictively to them.


2. Application of G.L. c. 268A,


Four potential Committee members have asked whether, as special
state employees, they may appear before DEQE to file registration
statements or permit applications on behalf of their organizations
or clients while they are serving on the Committee. The section of
the conflict law directly applicable to the members' question is
s.4. Section 4, as applied to the facts, prohibits a special state
employee from receiving compensation from, or acting as an agent
for, an organization or anyone other than the state in relation to
any particular matter in which the state is a party or has a direct
and substantial interest, and which is or has been a subject of his
"official responsibility"[1] as a state employee. The state is a
party to or has a direct and substantial.interest in any
registration filing or permit application with DEQE. A registration
filing or permit application is a particular matter.[2] The only
issue remaining is whether a registration filing or permit
application is a subject of a Committee member's official
responsibility.

The keynote of official responsibility is the "potentiality" of
directing agency action and not the actual exercise ofpower.[3]
Specific registrations and withdrawal permits would be a subject
of potential action by committee members if the Committee had the
ability to review a specific user or source and recommend that DEQE
amend, supplement, or revoke a registration or withdraw a permit,
recommend agency action regarding enforcement, or participate in
the monitoring or inspecting of a specific user or water source.
In this case, withdrawal permits would be "a subject of" the
Committee's work, even if Committee members themselves do not have
the final authority forjudging the merits of a specific permit or
application request or the final say as to an enforcement decision.

The Committee has the authority to review the development of the
regulations and to make recommendations concerning supplementation
or amendment. The restriction in s.4 depends on how DEQE interprets
the Committee's authority to "review" permit applications or
filings. The Act envisions that a withdrawal permit, issued in
accordance with the regulations establishing the criteria and
standards for obtaining permits, is the beginning, not the end of
a process.[4] A permit may be modified, suspended or revoked as may
be necessary to carry out the general purposes of the Act.
Compliance with the terms of the permit may be enforced by
additional orders, civil penalties or injunctive relief. The
Committee is given explicit authority to consult regarding the
enforcement of the Act and the regulations adopted thereunder. This
authority, however, by policy of the Commissioner, does not include
the authority to consult regarding review of a specific case to
determine enforcement needs or requirements or to consult regarding
the monitoring,

Page 149

inspecting and reporting requirements of a specific user or water
source during the period of a withdrawal permit as part of DEQE's
enforcement obligation. There are explicit procedural rules, in
writing, which prohibit all Committee members from reviewing
specific permit applications at any time while they were pending
and, prohibit Committee members from consulting regarding the
modification, supplementation or revocation of a specific permit
and further from consulting regarding enforcement decisions
relating to compliance with the terms of a specific permit, or
user, or service. Therefore, the Commission concludes that
individual permit applications are not a "subject" of the
Committee's work. So long as the Commissioner's interpretation of
the Act and his policy remain in force, Committee members may
submit registrations or applications to DEQE.

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

[1] "Official responsibility," means the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and whether personal or through
subordinates, to approve, disapprove or otherwise direct agency
action.

[2] "Particular matters," means any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns counties and districts for special laws related to
their governmental organiaations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[3] Buss, The Conflict of Interest Statute: An Analysis, Boston
University Law Review, Vol 45, 299, at 321.

[4] A permit is thus unlike a judgment, decision and order, or a
court case; there is no final action since a permit is always
subject to the continuing regulatory authority of DEQE. Thus, a
permit may have conditions X,Y, and Z. A subsequent regulation may
require conditions A, B, and C. If the permit holder does not
comply with condition A the permit may be suspended or terminated
even though the terms X,Y, and Z have been complied with. The only
vested property right in a permit is the right to a hearing. see
s.11(7).

 

End Of Decision