December 7, 1993

FACTS:



A Governor's Advisory Council (Council) was organized to
provide the Governor with input and advice on issues related to
the Massachusetts economy. Members of the business and academic
communities, as well as individuals within the Administration,
had reason to believe that the Governor would be receptive to
private sector viewpoints on certain economic issues. The
Council, however, was never officially formed by the Governor,
nor were its members officially appointed.

The Council has submitted various reports to the Governor,
all advisory in nature, and has primarily focused on analyzing
various industries and making policy recommendations to the
Governor. One recommendation resulted in the creation of a
particular program within a state agency. That program is funded
in part by the private sector. The Council's recommendations
contributed to the Administration's decision to support two
initiatives which were incorporated into legislation filed by the
Governor, which was subsequently enacted by the Legislature. The
Council's recommendations, however, do not amount to policies and
programs which may be readily adopted and implemented by
executive branch agencies.

The Administration views the Council as representative of
one particular constituent group in the Commonwealth. The
Governor

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now wishes to publicly acknowledge the importance of the issues
on which the Council has been focusing and would like to motivate
or encourage the Council to continue the work it has been doing.
Accordingly, the Governor has decided to formally create the
Council through Executive Order as he has done with other
advisory groups representing various constituent groups [1]. The
Governor's decision to create the Council through an Executive
Order is completely discretionary.

In the future, the Council will continue to be made up of
members from the private sector and academia. They will be chosen
for their expertise in various areas relevant to the work of the
Council. As in the past, Council members will not receive any
compensation nor will they be reimbursed for expenses. The
Council will not receive, nor will it expend or control, public
funds. There is no required number of members, nor is there any
required number of meetings of the Council. Sub-committees may be
designated at the direction of the Council chair. All reports of
the Council will be advisory in nature, and the Governor will not
be required to adopt or implement them, in whole or in part.
Council members will have no authority delegated to them. The
Council's purpose will be to continue to serve as an outside
resource to the Governor and to provide him with the benefit of
members' expertise. No government officials are members of the
Council, but the Governor attends the Council meetings, usually
with the Lieutenant Governor and the Secretary of Economic
Affairs. Although these government officials meet regularly with
the Council, the work of the Council is performed by its members.


QUESTION:


Will Council members be considered state employees for
purposes of the conflict of interest law?


ANSWER:



No.


DISCUSSION:


For purposes of the conflict of interest law, a state
employee is defined as "a person performing services for or
holding an office, position, employment, or membership in a state
agency [2], 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,
including members of the general court and executive council."
G.L. c. 268A, s. 1(q).

The Commission has previously considered four factors in
determining whether an advisory committee will be considered a
state agency or instrumentality thereof. No single factor is
dispositive of this determination. Those factors are:

1) the impetus for the creation of the committee (whether
required by statute, rule, regulation or otherwise);

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

3) whether members of the committee with perform functions
or tasks expected of government employees, or will they be
expected to represent outside viewpoints;

4) the formality of the committee's work product, if any.
EC-COI-86-4; 86-5.

We must examine the Council in light of these four factors.
First, the Council was not created pursuant to statute, rule, or
regulation, but rather by the Governor in his discretion. See EC-
COI-83-21
(task force set up by Governor on his own initiative as
opposed to statutory requirement was not a public entity);
contrast EC-COI-82-157 (advisory council established by G.L. c.
7, s. 40M on a permanent basis rather than a temporary or ad hoc
basis resulted in finding of state employee status for members).
In prior opinions, we have considered the fact that a committee
is a permanent and mandatory component to the implementation of a
state statute to be an important factor in finding state agency
status. See EC-COI-87-17 (Water Resources Management Advisory
Committee of the Department of Environmental Quality Management
established as a mandatory committee under St. 1985, c. 592); 86-
4 (Administrative Penalties Advisory Committee mandatory and
permanent committee pursuant to state statute). Here, the members
of the Council will serve at the pleasure of the Governor and the
Council is not required to remain in existence for any definitive
period.

Second, the Council is not organized or required to function
pursuant to formal guidelines set out by Governor. For example,
the number of members, the term of office, the number of
meetings, etc., are not specified in the draft Executive Order.
Similarly, there are no specified procedures for the conduct of
Council meetings or the participation by Council members in those
meetings. See e.g., EC-COI-82-81 (notwithstanding procedural
guidelines outlining the scope of work, goals, timetables and
anticipated work product, task force member are not public
employees where formality of procedures is merely an effort to


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have task force function in a timely and organized manner).

Third, the Commission has previously placed considerable
emphasis on whether the committee performs tasks ordinarily
expected of public employees or whether the committee serves to
represent outside viewpoints. In EC-COI-87-17 we contrasted a
committee engaged in regulation formation, an essentially
governmental function, with a committee which principally served
as a sounding board for constituent groups. The latter committee
would not be engaging in tasks ordinarily expected of public
employees. See EC-COI-86-5 (advisory committee set up to ensure
that agency receives the informed opinions of a broad spectrum of
the local population concerning the impact of an agency program
would not be public instrumentality); contrast 86-4 (finding
state agency status where permanent committee's principal
function is to assist in the drafting of regulations, a task
ordinarily engaged in by public employees). In summary, we have
traditionally focused on whether the board is serving in a
clearly advisory capacity with regard to a particular project or
program as opposed to engaging in traditional governmental
functions such as the formulation of regulations or the
evaluation of agency budgets.

Here, we find that members of the Council principally serve
to provide the Governor with outside viewpoints. It appears
that, through the Council, the Governor will have access to opinions
and expertise which is not otherwise available within the
executive branch. The Council and its subcommittees serve to
identify needs and ideas for programs, but do not provide
detailed policies and programs that may be readily adopted by
executive branch agencies. In other words, the Council does not
perform the work of executive branch agencies nor has the
Governor delegated any of his statutory authority to the Council.
See Opinion of the Justices, 368 Mass. 866 (1975) (members of
Judicial Nominating Committee established by executive order did
not hold public office where function of committee was to advise
and make non-binding recommendations to the Governor; the
Governor had not delegated his constitutional duty of judicial
appointment to the Committee). We note that, in one instance, a
subcommittee submitted draft legislation as part of its report.
We do not, however, find that the drafting of legislation
constitutes performing a function ordinarily or uniquely expected
of government employees [3]. This is especially the case where
the Governor has the option of filing his own legislation. See
EC-COI-82-81
(task force engaged in drafting legislation not a
public instrumentality where public official has option of filing
his own recommended legislation). We caution, however, that were
the Council to engage in other activities, such as the drafting
of regulations or lobbying the Legislature on behalf of an
executive agency, our conclusion as to the Council's principal
function, and therefore as to its status as a public
instrumentality, could change [4]. See EC-COI-86-4.

Finally, pursuant to the draft Executive Order, the
Council's work product may vary from recommendations to more
detailed and significant analyses. There does not appear,
however, to be any requirement that the work product take any
specific form. Moreover, you inform us that the Council's
recommendations are considered advisory in nature and the
Governor will not be required to adopt or implement them in whole
or in part. See EC-COI-83-21 (task force that created report
which contained only recommendations and which had no binding
authority over any state agency or employees was not a
governmental entity).

Applying all of the foregoing factors which we have
traditionally considered in determining whether an entity is an
instrumentality of a governmental agency, we conclude that the
Council is not an instrumentality of the Governor's Office.
Council members will not therefore be considered state employees
for purposes of the conflict of interest law.


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[1] In a like fashion, the Governor recently recognized the
work of the Hispanic American Advisory Commission by Executive
Order.

[2] A state agency is defined 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. G.L. c. 268A, s.
1(p).

[3] We do not recognize the drafting of legislation as an
exclusive task of government employees where citizens of the
Commonwealth may draft and seek to have introduced their proposed
legislation. In contrast, the drafting of regulations is a
governmental function customarily initiated by government agency
staff as recognized by the Administrative Procedures Act, G.L. c.
30A, ss. 2 et. seq. See EC-COI-86-4.

[4] Similarly, if the Governor delegated particular
functions of his office to the Council, or if the Council's

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recommendations were binding, our conclusion here concerning the
status of Council members could change.

End Of Decision