Opinion  EC-COI-00-2

Date:	06/21/2000
Organization:	State Ethics Commission

A municipal retirement board is a municipal agency for conflict of interest law purposes, and retirement board employees are municipal employees.

Facts

You are legal counsel to the Town of ABC ("Town") Retirement
Board ("Board"). You ask: Is the Board a "municipal agency" and are
individuals who hold positions on or perform services for the Board
"municipal employees" within the meaning and subject to the
restrictions of G.L. c. 268A, the conflict of interest law?[1]

Chapter 32 of the General Laws (Law) establishes a uniform
framework and comprehensive statutory scheme providing for
retirement systems and pension rights and benefits for public
employees in the Commonwealth. The Law governs the creation,
structure, administration, operation and supervision of such
retirement systems. The regulations, 840 CMR 1.00 (Regulations),
promulgated by the Public Employee Retirement Administration
Commission (PERAC or its predecessor pursuant to G.L. c. 32, s.21
and G.L. c. 7, s.50, further elaborate on the Law.

PERAC has "general responsibility for the efficient
administration of the public employee retirement system." G.L. c.
7, s.50. PERAC also has broad-ranging oversight, guidance,
monitoring and regulatory responsibilities over the 106 public
employee retirement boards and systems operating pursuant to the
Law in the Commonwealth.

The Law authorizes municipalities, through the local option
process, to establish retirement systems and boards. G.L. c. 32,
s.28. Once having accepted the Law establishing a retirement system
for its employees, a municipality may not revoke its action. G.L.
c. 4, s.s.4A and 4B. Generally, the Law prescribes that-all persons
whose regular compensation is paid by a municipality and who are
"regularly employed in the service of' any such municipality, other
than public school teachers (who are members of the state Teachers'
Retirement System), are "members in service" of the retirement
system pertaining to their municipalities. G.L. c. 3 2, s. s. 1
("employee") and 3. The retirement system's "legal obligations ...
consist of liabilities for a spectrum of retirement and similar
benefits including benefits upon retirement of members for
superannuation or for ordinary or accidental disability, as well as
benefits in the form of termination allowances in certain cases of
resignation of members, failure of reelection or reappointment
removal, or discharge [and death benefits for members' survivors]."
Opinion of the Justices, 364 Mass. 847, 852-53 (1963).

The Town Retirement System ("Retirement System") has three
sources of funding. First, through payroll deductions, in-service
members contribute a statutorily prescribed percentage of their pay
to their retirement system's annuity savings fund. Second, through
annual appropriations sufficient to amortize past unfunded
liabilities and satisfy future liabilities based on actuarially
projected liabilities prepared by PERAC, the System's governmental
units contribute amounts sufficient to satisfy the legal
obligations of the system's pension fund, special military service
fund and expense fund, from which "all expenses of administration
of the system" are paid. G.L. c. 3 2, s.22(1), (3), (4) and (5).
Third, investment income augments the System's funds.

More than 60 years ago, the Town accepted the provisions of
the Law establishing the Retirement System for its employees.[2]
The Board, established pursuant to s.20(4)(b) of the Law, has five
members: the Town Accountant, serving ex officio; an appointee of
the Town Board of Selectmen[3] ("Selectmen"); two members "elected
by the members in or retired from service of such [retirement]
system from among their number in such manner and for such term,
not exceeding three years, as ... [the Selectmen] shall determine";
and a fifth member (who may not be a Town employee, retiree or
official) chosen by the other four for a 3 -year term. GL. c. 32,
s.20(4)(b). As provided by the Law, the Board members are not
compensated because Town Meeting has not accepted the local option
provision permitting Board members to be paid $3,000 annual
stipends. G.L. c. 32, s.s.20(4)(d) and 20(6).

Among its general powers and duties, the Board is authorized
to promulgate by-laws, rules, regulations and investment guidelines
consistent with the Law and Regulations and subject to PERAC's
approval; retain investment and money managers and consultants to
assist in investing funds; process death and retirement benefits
and refunds and conduct related hearings; and employ personnel to
run the system's day-to-day operations. The Law and Regulations
prescribe detailed requirements for membership in the Retirement
System, members' contributions, benefit eligibility and most other
aspects of members' rights and obligations and the Systems'
operations, including funding and accounting methods, prohibited
investments and reporting and auditing requirements.[4]

As permitted by the Law, the Board currently employs,
supervises and directs one full-time employee. The Board determines
her job responsibilities, salary and vacation time; she is not
covered by any Town collective bargaining agreement. The Board pays
her compensation out of its expense fund, which is funded by
appropriations from the Town. At the Town's expense, the Board's
employee receives all benefits that the Town's employees receive:
she is a member of the Retirement System and is covered by the
Town's group health insurance plan and the Town's workers'
compensation insurance. She is also a member of the Town employees'
credit union and participates in the Town's deferred compensation
plan. There is no municipal by-law or contract between the Town and
the Board that governs the Board's employee's benefits.

Page 753

The Law provides that the city solicitor or town counsel, if
any, of the municipality shall be its retirement board's legal
adviser "except in such cases as the board deems [it] necessary" to
employ other counsel. G.L. c. 32, s.20(4)(f). The Board has
retained its own legal counsel. The Law requires the municipal
treasurer to act as treasurer-custodian of the Retirement System's
funds. G.L. c. 32, s.23(2). As permitted by the Board pursuant to
the Law, the Town Treasurer receives $1,500 per year, payable from
the expense fund, for his services as custodian of the System's
funds. G.L. c. 32, s.20(4)(g). The Town Treasurer also reconciles
all of the System's bank accounts and, at the Board's direction,
disburses funds. The Town Accountant oversees the accounting
functions of the System and, as authorized by Town Meeting through
the local option process, receives $3,000 per year (instead of
$1,500) payable from the expense fund, for his "services rendered
in the active administration of the system." G.L. c. 32,
s.s.20(4)(d) and 20(4)(d)(2). The Board does not employ its own
auditor. Rather, the Town's auditors audit the System annually. The
Board engages its own actuary to determine and report to PERAC how
much the Town must appropriate for the System each year, and PERAC
verifies this amount.

The Law provides that retirement board members and others who
handle the system's funds are "fiduciaries"[5] and subject to
fiduciary standards. G.L. c. 32, s.s.1 & 23(3). The Regulations
include separate provisions establishing a code of ethics and
standards of conduct for fiduciaries, 840 CMR 17.02-17.03, which
specifically provide that "[e]very fiduciary shall know and comply
with all applicable provisions of M.G.L. c. 268A governing the
conduct of public officials and employees and shall conform to the
standards of conduct prescribed by M.G.L. c. 268A, s.23." 840 CMR
17.03.

The Law includes many local option provisions whereby the
Town, through Town Meeting, G.L. c. 4, s. 4, may choose to accept
various procedures, rights, benefits and obligations, in addition
to those already mandated by the Law. Town Meeting has accepted at
least 10 of those local option provisions, including one providing
that the Town will indemnify Board members and one permitting the
Board to grant cost of living adjustments (COLA's). G.L. c. 32,
s.s.20A and 103.

The Board has its own federal taxpayer identification number
and "errors and omissions" insurance coverage and purchases its own
supplies. The Board occupies an office, rent-free in Town Hall.

Question

Is the Board a municipal agency within the meaning of G.L. c.
268A, the conflict of interest law?

Answer

The Board is a municipal agency within the meaning of the
conflict of interest law and, as such, individuals who perform
services for or hold offices, positions, employment or membership
in or on the Board are municipal employees within the meaning of
that law.

Discussion

There are only three definitional categories for public
agencies under the conflict of interest law: state, county and
municipal agencies. The Law does not explicitly characterize
retirement boards as "public" by contrast with many entity-creating
or -authorizing statutes[6] While separate statutes provide that
the State, Employees' Retirement Board and Teachers' Retirement
Board, both created pursuant to the Law, are to be "in" or "within"
specified state agencies[7] the Law does not expressly "place"
municipal retirement boards "in" or "within" any other public
agency or private entity.[8] As the Law was first enacted in the
mid- 1940's,[9] it could not have addressed the character of
municipal retirement boards for purposes of statutory schemes
enacted years later, such as the conflict of interest law, the
public records law, G.L. c. 66, and the open meeting law. G.L. c.
39, s.s.23A et seq.

We recognize that, for other purposes, courts have considered
retirement boards established under the Law, not as "municipal
departments," but as independent of the municipalities whose
employees they serve. See Everett Retirement Board v. Board of
Assessors of Everett, 19 Mass. App. Ct. 305, 308 (1985) (expense
fund component of city retirement system budget certified by
retirement board for payment by the city was not subject to
municipal control under any provisions of Municipal Finance Law and
that retirement board "is independent of the host municipality");
O'Connor v. Bristol County, 329 Mass. 741, 494 (1953); Stone v.
Treasurer of Malden, 309 Mass. 300, 302 (1941). See also In the
Matter of the City of Brockton, et al., 19 MLC 1139 (1992) (where
Massachusetts Labor Relations Commission decided that, for purposes
of collective bargaining under G.L. c. 150E, city's retirement
board, not city, is "public employer" because board has total
fiscal and administrative autonomy).

That municipal retirement boards created pursuant to the Law
are fiscally and administratively autonomous for purposes of
certain statutory schemes does not, however, control whether the
Retirement Board is a "municipal agency"[10] within the meaning of
the conflict of interest law, whose broad prophylactic purposes are
distinct and different. The conflict of interest law was "enacted
as part of 'comprehensive legislation ... [to] strike at corruption
in public office, inequality of treatment of citizens and the use
of public office for private gain." McMann v. State Ethics
Commission, 32 Mass. App .

Page 754

Ct. 421, 427 (1992), citing Everett Town Taxi, Inc. v. Everett,
366 Mass. 534, 536 (1974), quoting Report of the Special Commission
on Code of Ethics, 1962 House Doc. No. 3650 at 18.

When determining whether a body such as the Board is a public
agency within the meaning of the conflict of interest law, the
Commission has used a multi-factor analysis, which the Supreme
Judicial Court has recognized as appropriate. MBTA v. State Ethics
Commission, 414 Mass. 582, 588 (1993) (concluding that the
Massachusetts Bay Transportation Authority Retirement Board (MBTA)
is not a "state agency" within the meaning of G.L. c. 268A, s.1
(p)). Those factors are:

(1) the means by which the entity was created (e.g.,
legislative, administrative or other governmental action);

(2) the entity's performance of some essentially governmental
function;

(3) whether the entity receives or expends public funds; and

(4) the extent of control and supervision of the entity
exercised by government officials or agencies.

Also, as suggested in MBTA, we take into consideration the
extent to which there are significant private interests involved in
the entity under review or whether the state or its political
subdivisions have the powers and interests of an owner. AOTA, 414
Mass. at 588-589. See also EC-COI-95-10; 95-1; 94-7.

As to these factors, we have said that "[n]o one factor is
dispositive; rather the Commission will balance all of the factors
based on the totality of the circumstances." EC-COI-92-13. When
reviewing and balancing the factors, we are also mindful of the
prophylactic purposes of the conflict of interest law.

We now apply these factors and considerations to the facts of
this case.

(1) Was there a statutory, regulatory, administrative or
other governmental impetus for the Board's creation?

The Town chose irrevocably to establish, for the benefit of
the Town's employees, the Retirement System and Board, as
prescribed by a comprehensive statutory and regulatory scheme,
vesting the Board with its powers and duties. The Law and
Regulations generally prescribe detailed System membership
eligibility criteria; creditable service qualifications;
requirements and formulas for determining benefits; the various
retirement payment options; hearing and appeal rights; composition,
powers and duties of retirement boards, including financial and
other reporting; oversight and review by PERAC, as discussed above;
methods of financing and appropriating and accounting for, holding,
managing and investing funds. See G.L. c. 32, s.s.1-28; 840 CMR
1.00 et seq.

The Law prescribes the composition of the membership of the
5-member Board, including, the Town Accountant and the Selectmen's
appointee, who presumably (because the Law specifies no term),
serves at the pleasure of the Selectmen. Two of the three remaining
positions could be filled by cur-rent Town employees.

By contrast, it was of critical significance to the MBTA
court, when concluding that the MBTA Retirement Board was not
public, that the Board and the MBTA retirement system were
established and evolved through negotiated collective bargaining
processes, rather than pursuant to a statute, regulation or
executive order. The court found "[n]otably absent from the
creation of the [MBTA retirement] board is any action of the
Commonwealth" and could not "discern any legislative underpinning,
even indirect, for the creation of the board." MBTA, 414 Mass. at
589-590 (emphasis added).

In this case, we find abundant evidence that the Retirement
System and Board have significant "legislative underpinnings" and
that there was and remains a strong and direct governmental impetus
at the municipal level for the creation and maintenance of the
System and the Board.

(2) Does the Board perform some essentially
governmental function?

Rather than being contractually negotiated undertakings, the
establishment and maintenance of the Retirement System and the
continued provision of retirement benefits administered by the
Board were undertaken irrevocably as obligations by and of the Town
when the Town decided to assure its employees of retirement and
pension benefits and rights. We consider the Retirement System's
provision of retirement benefits as mandated by the Law to
constitute the performance of an essential governmental function.
This conclusion is consistent with our precedent, in which we have
found "governmental functions where those functions were
contemplated by either state or federal legislation." See, eg.,
EC-COI-82-25 (regional school district provides educational services
mandated by law); 92-26 (nonprofit collaborative assisting school
committees in their "traditional governmental function"); (private
industry councils implement federal Job Training and Partnership
Act); 89-20 (regional employment boards implement federal Job
Training Partnership Act). Compare EC-COI-88-19 (private company's
provision of public and educational cable television access
pursuant to a contract between city and cable company not
essentially governmental function).

We also consider it significant that the Retirement

Page 755

System's retirement contributions and eventual benefits are
in lieu of those provided by the Social Security System. Public
employees of the Commonwealth and its political subdivisions
who are covered by a public employer's retirement plan are not
required to participate in or contribute to the Social Security
System[11] retirement program because the Commonwealth has
chosen not to enter into so-called "Section 218 agreements"[12]
between the state and the Commissioner of the Social Security
Administration whereby the state's public employees are made subject
to and have the benefit of the Social Security System's retirement
program. By contrast, most employees of private employers are
required to participate in and contribute to the Social Security System
even if their private employers have their own pension plans.

Thus, Town employees are not required to pay so-called FICA
taxes[13] and do not, as such, have any rights to receive
retirement benefits under the Social Security System, "a
comprehensive contributory insurance plan," conceived and designed
in large part "to protect workers and their dependents from the
risk of loss of income due to the insured's old age, death, or
disability." 70A Am Jur 2d, Social Security and Medicare, s. 14
(citations omitted). In short, the Retirement System assures
retirement benefits as a de facto substitute for those otherwise
mandated by the Social Security System.

Furthermore, we consider it significant that, if the Board had
not chosen to engage your law firm as its legal adviser, the Law
would assign that function to Town Counsel.[14] If such legal
services are provided by salaried employees of the municipality
(town counsel or city solicitor), it is PERAC's view that the Law
does not permit them to receive extra compensation for such
services to a retirement board.[15] This suggests that the
Legislature and PERAC consider it an appropriate, if not necessary,
part of town counsel's responsibilities to provide legal services
to the municipal retirement board.

When determining that the MBTA Retirement Board did not
perform an essential governmental function, the court in AOTA
wrote:

Clearly, these functions, which are fiducial in nature and
performed most often by private entities, are not "essentially
governmental" functions. The fact that the Commonwealth may
perform these functions for the benefit of certain State
employees does not transform the nature of these functions to
governmental.  MBTA, 414 Mass. at 590.

That statement followed from the court's characterization of
all aspects of MBTA's retirement program as a contractual (not a
statutory) creation, which is clearly distinguishable from the Town
Retirement System, a statutory creation. We also note that the
court did not address whether the MBTA's retirement program
substituted for or supplemented benefits under the Social Security
System. In fact, the MBTA's employees contribute to both the Social
Security System (through payroll deductions of FICA taxes) and the
MBTA's retirement program.

(3) Does the Board receive or expend public funds?

Through its annual appropriations based on actuarially
projected liabilities, the Town provides funding for the Retirement
System's pension fund, special military service fund and expense
fund, including all of the System's administrative expenses (such
as those for the Board's Us-time employee and professional services
from its actuary, your law firm and other consultants and financial
advisers). If the System has a shortfall, the Town must appropriate
funds to cover it. Furthermore, the Town may not reduce the funds
the Board requires and certifies. See Everett Retirement Board,
infra. Additional funding is provided by members' payroll-deduction
contributions (5%-9%) and investment income.

The Town's obligations to provide public funding are mandated
by the Law and Regulations; they are not contractually based.

As further indication that the Town funds or supports the
Board's operations, we note that the Board's sole employee (i) is
a member of the System, (ii) receives (at the Town's expense) all
benefits that Town employees receive, e.g., group health insurance
and workers' compensation coverage, (iii) is a member of the Town
employees' credit union and (iv) participates in the Town's
deferred compensation program.[16] In addition, the Board occupies
office space in Town Hall rent-free; although not required by the
Law, the Town auditor audits the System; and, as authorized, but
not required, by the Law, the Town has chosen to indemnify the
Board members for expenses and damages arising from the performance
of their official duties.[17]

Again, MBTA is distinguishable because the MBTA's obligation
to make the payments is a contractually determined form of employee
compensation that, once paid, becomes private in nature due to the
"significant private interests of the pension fund members and
their beneficiaries."

(4) To what the extent do government officials or agencies
control and supervise the Board?

The Town does not control or supervise the 5-member Board
because, among other reasons, the Town Accountant and the
Selectmen's appointee[18] do not constitute a majority of the Board
and because, as fiduciaries, the Board members "owe their primary
loyalty to the members and beneficiaries" of the Retirement System
and "cannot be controlled in the traditional sense by any

Page 756

outside body." AOTA, 414 Mass. at 592; G.L. c. 32, s.23(3 and 840
CMR 1.01, 1.02.

On the other hand, the Law appears to give the Selectmen the
discretion to establish the terms for the two elected Board members
at less than three years and to have their appointee to the Board
serve at their plea sure. Through the Town Accountant, the Town
Treasurer, who serves as treasurer-custodian (under the direction
of the Board) of the Retirement System's funds and the Town
auditor, Town officials play significant roles in the System. Also,
PERAC has significant oversight and engages in periodic, as well as
mandatory review, of the Board's and System's operations and
certain of its determinations, e.g., grants of benefits and power
to discipline Board member, constitute governmental control[19]

We also consider it significant that the Board has authority
to undertake certain significant activities only if Town Meeting
accepts the Law's local option provisions. Town Meeting has
approved at least 10 of such local option provisions, including
those authorizing (i) the Board's granting of COLA's to retirees
and their beneficiaries; (ii) the Town Accountant's receipt of
$3,000 per year (instead of the maximum $1,500 per year otherwise
prescribed by the Law); and (iii) the Town's indemnification of the
Board members for damages and expenses incurred while acting within
the scope of their official duties (which the Law would not
otherwise require). By contrast, Town Meeting has not accepted the
local option provisions that would (i) authorize the Board to
increase from $1,500 (permitted by the Law) up to $3,000 the
compensation of the Town Treasurer for serving as custodian of the
Retirement System's funds or (ii) authorize the Board members to
receive a stipend of up to $3,000 (rather than no compensation, as
the Law otherwise provides)[20] See G.L. c. 32, s. s.20(4)(h) and
20(6). In short, the Town and Town officials continue to decide
significant aspects of the Board's operations.

Finally, as to the additional consideration, following the
reasoning in AOTA, we find that the private interests of the
Retirement System's members and their beneficiaries is significant
and that the Town does not have the powers and interests of an
owner. We do not, however, find this consideration controlling.

Beyond the factors applied above, we consider it significant
that PERAC (and its predecessor agency), the very agency charged
with oversight of the public employee retirement system in the
Commonwealth,[21] promulgated a Regulation that provides that
"every fiduciary [including Board members) shall know and comply
with all applicable provisions of M.G.L. c. 268A governing the
conduct of public officials and employees and shall conform to the
standards of conduct prescribed by M.G.L. 268A, s.23." 840 CMR
17.03. All such Regulations are subject to the approval of the
General Court with whom they must be filed, and, if the General
Court takes "no final action" within 45 days of such filing, the
Regulations are deemed approved. G.L. c. 7, s.50(a). Thus, it must
be presumed that the General Court reviewed and approved the
Regulations requiring Board members to comply with the conflict of
interest law. The Commission should not disturb that determination
absent compelling circumstances, which are not present here.

Balancing the factors applied above in light of the totality
of the circumstances and the purposes of the conflict of interest
law, we find that the Board is a municipal agency. Consequently,
individuals who perform services for or hold offices, positions,
employment or membership in or on the Board are municipal employees
for purposes of the conflict of interest law.

[1] You and, with your permission, personnel of the Public
Employee Retirement Administration Commission have provided us with
relevant information.

[2] See G.L. c. 32, s.s.28(l) and (2).

[3] The appointed member has no statutorily prescribed term.

[4] See G.L. c. 32, s.s. 3,4-5, 6-9, 12-13, 20(4), 20(5),
21(1), (3) and (5), 22 & 23(2); 840 CMR 4.00, 5.00, 10.00, 16.00,
18.00, 21.00, 25.00 and 26.00.

[5] "A fiduciary ... shall discharge his duties for the
exclusive purpose of providing benefits to members and their
beneficiaries with the care, skill, prudence and diligence under
the circumstances then prevailing that a prudent person acting in
a like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims and
by diversifying the investments of the system so as to minimize the
risk of large losses unless under the circumstances it is clearly
prudent not to do so." G.L. c. 32, s.23(3) and 840 CMR 1.01.

[6] For example, water and sewer commissions established by
local option are "independent public instrumentalit[ies]"
performing "an essential governmental function" and are municipal
agencies for purposes of the conflict of interest law, G.L. c. 40N,
s.4, as are fire districts and housing and redevelopment
authorities. G.L. c. 48, s.90 and c. 121B, s.7, respectively.

[7] The State Employees' Retirement Board serves "in" the
Department of the State Treasurer. G.L. c. 10, s. 18. Established
by G.L. c. 15, s. 16, the Teachers' Retirement Board is "within"
the Executive Office for Administration and Finance. G.L. c. 7,
s.4G. See 1989 Op. Att'y Gen. No. 2, Rep. A.G., Pub. Doc. No. 12 at
110 (1988).

[8] The Law does provide that "[t]he contributory retirement
system established in any city or town" pursuant to the Law shall
include the name of the municipality and that "[e]ach such city or
town system shall be managed by a retirement board which shall have
the general powers and duties set forth in" G.L. c. 32, s.20(5)
(emphasis added).

[9] With the enactment of St. 1945, c. 658, s. 1, the
Legislature attempted to collect in one chapter the various
statutes regulating a variety of public employee retirement
systems. 18 Randall & Franklin, Mass.

Page 757

Pract. s. 381 (4th ed. 1993) (citations omitted).

[10] 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)

[11] "Although, when first enacted in 1935, the Social
Security Act (now 42 U. S.C. s.301 et seq.) prohibited
participation by states and localities, the Omnibus Budget
Reconciliation Act of 1990, P.L. 101-508, 104 Stat. 1388, "required
coverage of all state and local government employees not covered by
a public employer's retirement plan providing benefits comparable
to Social Security." "The Cost Impact of Mandating Social Security
for State and Local Governments," Report prepared by The Segal
Company, a consulting firm specializing in actuarial, compensation
and benefit matters (May 1999).

[12] " See 42 U.S.C. s.418, originally enacted as s.218 of the
Social Security Act.

[13] The Social Security Act's related taxing provisions,
formerly incorporated into the Act, are now codified in the Federal
Insurance Contributions Act (FICA), 26 U. S.C. s.3 10 1, and the
Federal Unemployment Tax Act, 26 U. S.C. s.33 0 1.

[14] By comparison, in MBTA, the court observed that "[t]he
(retirement) board has always been advised and represented by
privately retained counsel."

[15] See March 12, 1997 and June 16, 1997 opinion letters of
John J. McGlynn and Robert F. Stainaker, PERAC's former and current
Executive Directors, respectively, relating to the Stoneham
Retirement Board, and January 28, 1999 opinion letter of Joseph I.
Martin, PERAC's current Deputy Executive Director, to the Methuen
Retirement Board.

[16] By comparison, in MBTA, the court observed that the MBTA
Retirement Board's employees "do not participate in the State
retirement system are not covered by the Commonwealth's group
insurance" and "are ineligible for the Commonwealth's deferred
compensation program and are not public employees for workers'
compensation purposes."

[17] By comparison, in MBTA, the court observed that
"[j]udgments against the board are not the obligations of the MBTA
or the Commonwealth and the MBTA does not guarantee the obligations
of the fund." MBTA, 414 Mass. at 586.

[18] "In MBTA, the court found that the MBTA's three
appointees do not control the 7-member MBTA Retirement Board.

[19] Among its responsibilities, PERAC promulgates rules and
Regulations pertaining to retirement boards' accounting,
record-keeping, investments, expenditures, payments and granting
benefits; at least every three years, reviews each system's entire
operation and performs an actuarial evaluation of each system;
conducts tri-annual audits and valuations of each system; provides
actuarial services, training and assistance to retirement boards
that choose to use its services; reviews retirement boards' grants
of retirement and death benefits; and may discipline retirement
boards. G.L. c. 7, s.49, 50; G.L. c. 32, s. s.21 and 22; 840 CMR
1.00. See also 18 Randall & Franklin Mass. Pract. s.s.381, 384 (4th
ed. 1993).

[20] According to Town records, earlier this year the Board
proposed a warrant article that would have authorized Board members
to receive $3,000 annual stipends, but withdrew it after the Town
Finance Committee indicated, consistent with its position with
respect to other Town boards, that it would not support the Board
members' receipt of stipends.

[21] By comparison, in MBTA, the court observed that the MBTA
Retirement Board has always been treated as private by state
regulators.

Page 758