VCS is a local member-supported, non-profit, charitable corporation formed and organized under G. L. c. 180 and recognized as a tax-exempt entity under section 501(c)(3) of the Internal Revenue Code. [2] VCS is a registered public charity in Massachusetts. [3]
VCS is governed by a thirty-person board of directors and employs two full-time and one part-time employee. VCS's core mission is to protect Martha's Vineyard's natural environment through education, advocacy and land preservation.
VCS achieves its land preservation goals by assisting landowners in placing voluntary restrictions against development on their land or deeding the land or interests in the land to other entities, by contributing funds so that others may acquire such lands and, on rare occasions, by holding temporary fee interests in land and permanent conservation restrictions on land. VCS offers free legal assistance to private landowners and municipalities by drafting conservation restrictions and other legal instruments to preserve undeveloped land, directs landowners to entities that can receive gifts of land or conservation restrictions, contacts potential funding sources, contributes to acquisition costs, and temporarily holds ownership or easements in land and conveys such interests to suitable entities. VCS has never sold any land or interest in land for a profit. VCS rarely holds a permanent fee interest in property. VCS does not own the building or land where its headquarters is located. VCS does, however, hold permanent conservation restriction interests in land in which other conservation groups are not interested. VCS has the right to enforce restrictions on the development of such land. VCS does not actively manage any of the properties it owns or in which it holds an interest.
VCS pursues its advocacy objectives by monitoring and reviewing development proposals, participating in local land use permitting proceedings, offering testimony and expertise at public hearings, taking positions on public land planning issues, engaging in administrative and judicial proceedings and employing legal strategies to save land, including litigation against development VCS considers inappropriate.
VCS achieves its educational goals through the publication of its free on-line Conservation Almanac, the sponsorship of free lectures and walks, and the sale of books on trails and edible plants. VCS does not sell goods, except for a trail guide, a book on edible plants and hats and T-shirts with the VCS logo, all of which sales cumulatively raise about $3,000, slightly more than one percent of its annual operating expenses.
VCS has an annual budget of about $260,000, which it raises almost exclusively through membership donations, an annual appeal letter and an annual fundraiser. VCS does not employ a professional fundraiser or director of development. VCS occasionally applies for grants and has, for example, received a grant from a private foundation to research strategies to protect rural road and conduct title research on potential conservation land and won a grant from the state Department of Environmental Management to implement a public walking trail project on private lands. VCS does not charge for the services it provides. When VCS conveys land to third parties, it does not make a profit but rather conveys land to entities that intend to hold the land for open space preservation purposes.
A wide variety of non-profit organizations have been treated as business organizations for the purposes of G. L. c. 268A in numerous prior conflict of interest law opinions, first by the Attorney General, [4] whose opinions the General Court made provisionally binding on the Commission, [5] and subsequently by the Commission. [6] Commission opinions have construed the term "business organization" broadly to include non-profit organizations in general [7]and, more narrowly, to include non-profit organizations that "conduct business," such as "the buying and selling of commodities or services." [8]The Commission has also stated that "the plain meaning of the term 'business organization' is an organization whose purpose is to engage in 'commercial activity for gain, benefit, advantage, or livelihood.'" [9] Commission opinions have not, however, limited the term's application to profit-making entities. [10]
In responding to this opinion request, we reconsider the term "business organization" in the context of G. L. c. 268A and, as explained below, conclude that charitable non-profit organizations which, like VCS, do not substantially conduct business activities, are not business organizations for purposes of the conflict of interest law.
"Business Organization" Reconsidered
Sections 6, 13 and 19, in relevant part, respectively prohibit a state, county and municipal employee from participating as such in any particular matter in which "a business organization in which he is serving as officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest." These sections appear to be designed to ensure that governmental decision-makers are not influenced by their own financial interests, or those of their immediate family members or those of certain other persons or entities with whom they are closely associated; helping to ensure that governmental decisions are made impartially and in the public interest.
The terms "business", "organization" and "business organization" are not defined in G. L. c. 268A. [11]Accordingly, they must be construed following established principles of statutory interpretation. [12]
Ordinary Meaning
The word "organization" has a readily understood common meaning. [13] A non-profit corporation, like VCS, [14] would unquestionably be included scope of the term "organization" as the word is commonly used and understood. [15]
The common and approved usage of the word "business" is less clear. Because the word has so many meanings, the intended meaning of "business" in a given usage may be uncertain and indefinite. [16] The word may mean broadly any "serious work or endeavor;" [17] occupation, pursuit, work or trade; profession; an activity of some continuity, regularity and permanency; a means of material being and livelihood or occupation or employment; gainful activity; and "that which habitually busies or occupies or engages the time, attention, labor, and effort of men as a principal serious concern or interest or for livelihood or profit." [18] The term may also mean, in its most narrow sense, a commercial enterprise carried on for profit. [19]
Accordingly, the phrase "business organization" is susceptible to more than one construction. Construing the term most broadly, most non-profit organizations, particularly non-profit corporations, are "business organizations." That is, most non-profit entities, including non-profit corporations and associations, are "organizations" and, in a broad sense, conduct "business." In this broadest, generic sense of an entity formed for a serious purpose or activity, many, if not most, non-profit organizations would appear to be business organizations. [20]
It is not evident, however, that the broadest and most inclusive reading of the term "business organization" is its ordinary meaning in common daily usage. Thus, we think it likely that the phrase would generally be understood to refer to something more specific than an entity formed for a serious purpose. For example, a club formed to collect and distribute food to the needy or a neighborhood group formed to pool finances and oppose a local development, while both entities formed for serious purposes, would not commonly be thought of as business organizations.
Conversely, a narrow reading of "business organization" which would exclude all non-profit organizations from the term's scope would construe the term to have a meaning more narrow and technical than its common usage indicates. [21] Thus, for example, common usage would likely include a chain of hospitals within the meaning of the term business organization even if the chain were operated by a non-profit organization.
Legislative Intent
The meaning of the term business organization in G. L. c. 268A cannot be positively determined from the statute's legislative history. There is no official record of what the Legislature intended by enacting the statute with the term business organization rather than the more inclusive term organization, used in the federal conflict of interest statute. While some statutory history [22] and contemporaneous scholarship is supportive of a narrow reading of business organization to exclude non-profit entities, [23] such a reading is not required. [24]
It is noteworthy that the General Court's subsequent legislation concerning ethics and the Commission has not been inconsistent with a broad reading of business organization. [25]
A Workable Meaning
The Commission must give the conflict of interest statute a workable meaning; [26] that is, a reading that will accomplish the statute's essential purpose. At the same time, we are bound by the limits imposed by the statutory language enacted by the Legislature. While the Legislature enacted sections 6, 13 and 19 in order to help ensure that governmental decisions are made impartially and in the public interest by prohibiting public employees from participating as such in particular matters involving the financial interests of certain persons and entities with whom they are closely associated, the Legislature also chose to limit those prohibitions by using the term "business organization" instead of the more general term "organization." [27]
A reading of business organization to exclude all non-profit organizations would ignore the reality that many non-profit organizations are essentially businesses, and would not support the purpose of the sections. [28] Conversely, a reading of business organization to include all non-profit organizations, while arguably furthering the sections' broader purpose, would ignore that there are some non-profit organizations that are not businesses in any commonly understood meaning of that term and would render the word business in the sections virtually superfluous and meaningless. [29]
Many non-profit corporations regularly provide services in exchange for fees or goods in exchange for payment. Many such non-profit organizations regularly compete for private and government contracts (including grants) and are vendors to private clients and public agencies. In short, they regularly participate in the marketplace and do business with private parties and the government. Such transactional activities of non-profit organizations are often the source of livelihood for the organization's officers and employees. Such non-profit organizations are reasonably included within the scope of the term business organization.
Some non-profit organizations do not provide services in exchange for fees and do not transact business with private parties or the government. They do not participate in the marketplace; except for, perhaps, the marketplace of ideas. Instead, such organizations provide their services freely and derive their subsistence from membership fees and donations. Such non-profit organizations, which do not engage in any activities that are commonly considered business, are not reasonably included within the scope of the term business organization.
Accordingly, in order to best effectuate the purpose of the sections 6, 13 and 19, while respecting the limits of the statutory language, we reject both extremely narrow and extremely broad readings of the term business organization. Instead, we conclude that some non-profit organizations are business organizations and some are not, based on their actual activities. In short, consistent with our advice in EC-COI-88-4, non-profit organizations that substantially engage in business activities, such as selling goods or providing services in exchange for fees, are business organizations for G. L. c. 268A purposes. Conversely, making explicit what we implied but did not state in EC-COI-88-4, charitable, non-profit organizations that do not substantially engage in any business activities are not business organizations for G. L. c. 268A purposes.
In determining whether a non-profit organization is substantially engaged in business activities, such that it will be a business organization for the purposes of G. L. c. 268A, we will consider the following factors: (1) whether the organization's activities involve commerce, trade, the sale of goods or the provision of services in exchange for fees (or other compensation) or any other activities, including professional activities, that are commonly understood to be business activities; (2) whether the organization's business activities are engaged in for its support or profit; [30] (3) whether the organization's business activities are continuously or regularly engaged in; [31] and (4) whether the organization's business activities constitute a significant rather than de minimis portion of the total activities of the organization. [32] Thus, for example, a non-profit organization which primarily supports itself by regularly providing services in exchange for fees or other compensation will be a business organization for purposes of G. L. c. 268A, even though it also receives charitable donations. By contrast, a non-profit organization which is primarily supported by charitable donations and provides all of its services without charge will not be a business organization for G. L. c. 268A purposes, even if it derives a small percentage of its support from its incidental sale of goods.
VCS
VCS's sale of books, trail guides and hats and T-shirts, while traditional business activity, is not substantial and is a very small part of the organization's total activities. (VCS derives less than two percent of its annual operating budget from its sale of goods.) By contrast, VCS's educational, advocacy and land preservation activities, as described above, do not fall within the common and ordinary meaning and usage of the term "business." VCS is neither organized for the purpose of engaging in commerce or trade for gain, benefit, advantage or livelihood, nor is it substantially engaged in the provision of goods or services for payment or fees. [33]
We find that VCS's incidental, limited business activity through its sale of merchandise, on which VCS relies for less than two percent of its annual operating budget, is de minimis [34] and does not render VCS a business organization for G. L. c. 268A purposes. We further find that VCS does not otherwise substantially engage in business activities. We therefore conclude that VCS is not a business organization within the meaning and for the purposes of G. L. c. 268A. [35]
The Effect of VCS Not Being a Business Organization
Given that VCS is not a business organization within the meaning of section 19, the section would not prohibit a VCS director who is also a local elected municipal employee from participating as a municipal employee in particular matters simply because of VCS's financial interest in the matters. That does not mean, however, that his ability to participate as a municipal employee in matters affecting VCS would be unrestricted by the conflict of interest law. To the contrary, he would be subject to the following restrictions.
First, such a VCS director should keep in mind that particular matters affecting VCS may also affect his own financial interests and those of persons and business entities with whom he may be closely connected. He would, as a municipal employee, remain subject to section 19 prohibitions as to matters in which he, his immediate family members, partner(s), or any "business organization" in which he is serving as an officer, director, trustee, partner or employee, or any person or "organization" (including governmental and non-profit organizations) with whom he is negotiating or has any arrangement concerning prospective employment, have/has a financial interest. [36]
Second, such a VCS director would, as a municipal employee, be required to publicly disclose the fact of his service as a VCS director and the relevant circumstances of his participation as a municipal employee in matters affecting the financial or other significant interests of VCS prior to his participation in such matters, [37] and to act fairly and impartially in all such matters. [38]
Third, as a municipal employee, the VCS director would be generally prohibited from acting as VCS's agent [39] in any particular matter in which the municipality is a party or has a direct and substantial interest. [40]