Opinion  EC-COI-83-30

Date:	03/22/1983
Organization:	State Ethics Commission

Members of the State Council established to implement the Federal Job Training and Partnership Act and appointed by the Governor are state employees pursuant to § 1(q) of the conflict of interest law. Members of the State Council and of the Private Industry Council, also established to implement the Act, are not required to file financial disclosure statements pursuant to G.L. c. 268B.

Facts

The recently-enacted Federal Job Training and Partnership Act (Act), P.L. 97-300,96 Stat. 1322 (Oct. 13, 1982) is designed to help prepare youth and unskilled adults for entry into the labor force and to afford job training to those economically disadvantaged individuals and other individuals facing serious barriers to employment who are in special need of such training to obtain productive employment. Id, § 2. Like the Comprehensive Employment and Training Act (CETA) which it replaces, the new legislation works primarily through a locally-based program delivery system to provide remedial education, training, and employment assistance to low income and unemployed youth and adults.

The implementation of the Act will proceed along the following stages:

1. The Governor will select a state job training coordinating council (State Council) comprised of representatives of business and industry, state agencies, local government, community-based organizations, and labor organizations. Id, § 122.    
2. The major responsibilities of the State Council will include:

          a) Proposing to the Governor service delivery areas (SDA's) within the guidelines
          contained in the Act;

          b) Recommending a Governor's coordination and special services plan for the state,
          including criteria to coordinate related state and local programs;

          c) Recommending the planned allocations and use of resources authorized under
          the Governor's grants;

          d) Providing overall management, guidance and review for all related programs in
          the state, and approving local SDA plans;

          e) Developing appropriate linkage with other programs, and coordinating activities
          with local Private Industry Councils (PICs);

          f) Developing a state job training report;

          g) Reviewing the operation of programs conducted in each SDA and making
          recommendations for improving such programs;

          h) Recommending variations in national performance standards to reflect the
          condition of the state's economy;

          i) Reviewing and commenting upon the state plan developed for the State
          Employment Service Agency, as well as those developed by other state agencies
          providing employment, training, and other related services; and

          j) Identifying, in conjunction with other state agencies, the employment, training
          and vocational education needs throughout the state, and assessing the extent to
          which related programs represent a consistent, integrated, and coordinated approach
          to meeting such needs.

  3. Following the approval of an SDA, the chief elected local official(s) in the service area will determine the number of members of and will select members of the Private Industry Council (PlC) for the service delivery area.^[1] A majority of the PlC membership will be selected from representatives of the private sector, with the remaining members selected from educational agencies, organized labor, community-based organizations, economic development agencies, and the public sector. Id, § 102.

  4. The PlC will be responsible for providing policy guidance and oversight with respect to activities under the job training plan for its service delivery area in partnership with the unit or units of local government within the area. The PIC will determine procedures for the development of the job training plan and will select grant recipients to administer the job training plan. The plan will identify the entities which will administer the program and receive grant funds, describe the services to be provided and propose a budget. Id, § 104. In carrying out its responsibilities, the PIC may hire staff and accept contributions and grant funds from public and private sources. Id, § 103.

  5. Each job training plan must be approved by the PIC and by the appropriate chief elected official or officials. Id, § 102. Following local approval, the job training plan must be submitted to the General Court and Governor. Upon approval by the Governor and United States Secretary of Labor, funds may be appropriated to the service delivery area. Id, § 104.

  6. Funding for the programs will originate with Congressional appropriations, Id, § 3, and will be paid into the treasury of the Commonwealth. G. L. c. 23, §§ 2C, 6B. Following approval of the job training plan, appropriate funds will be released through the Secretary of Economic Affairs to the entity designated as the grant recipient.

As of this date, the Governor has selected approximately fifty individuals to serve on the State Council. The State Council has preliminarily recommended the designation of sixteen areas as SDA's. Ten of the sixteen areas are identical to areas established for the implementation of the predecessor CETA statute. The selection of members for each PIC has not, as yet, taken place.

Questions[2]

1. Are members of the State Council state employees for the purposes of G.L. c. 268A, § 1(q)?

2. Are members of either the State Council or PIC subject to the financial disclosure requirements of G.L. c. 268B?

Answer

1. Yes.

2. No.

Discussion

1. Status of State Council Members as State Employees

G.L. c. 268A defines a state employee as:

  a person performing services for or holding an office, position, employment, or membership
  in a state agency, 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...G.L. c. 268A, § 1(q) (emphasis added).

Prior opinions issued by the Commission have applied criteria to analyze what constitutes "performing services for a state agency."^[3] Among those criteria are:

1. the impetus for the creation of the position (by statutes, rule, regulation or otherwise);
2. the degree of formality associated with the job and its procedures;
3. whether the holder of the position will perform functions or tasks ordinarily expected of government employees, or will he or she be expected to present outside, private viewpoints; and,
4. the formality of the person's work product, if any. On the basis of these precedents, the Commission concludes that State Council members perform services for a state agency.

The status of the State Council as a mandatory, permanent component to the implementation of the Act in Massachusetts distinguishes it from those temporary, ad hoc advisory committees which the Commission has regarded as exempt from the definition of state agency. Compare, EC-COI-80-49, 82-81, 82-139. Moreover, the formality of the State Council's responsibilities and work product, as enumerated in the facts, supra, and the accountability which the State Council has for the implementation of the Act involving the expenditure of state funds, warrants, if not compels, the conclusion that the State Council is a state agency and members appointed to the State Council are state employees under G.L. c. 268A, § 1(q).

Although the Commission does not possess the authority to rule on constitutional questions (which are within the appropriate domain of the judiciary), the Commission does not believe that Congress, either expressly or impliedly, intended to preclude the Commission from applying its conflict of interest laws to individuals performing services as State Council members under the Act. The sole reference to limitations on conflict of interest activities, appearing in § 141(f) of the Act, prohibits any council member from voting "on the provision of services by that member (or organization which that member directly represents) or voting on any matter which would provide direct financial benefit to that member." This prohibition, which is substantively similar to the restrictions on participation of government employees under G.L. c. 268A, §§ 6,13,19, does not purport to preclude the application of G. L. c. 268A where appropriate.^[4] Not only does the Act lack any explicit provision preempting states from applying such statutes, but also the Act apparently permits such application. 

See, e.g., § 126 ["Nothing in this Act shall be interpreted to preclude the enactment of state legislation providing for the implementation, consistent with the provisions of this Act, of the programs assisted under this Act"]. Moreover, the Act reflects an overall Congressional scheme under which the administration and implementation of the Act has been delegated to the states. Accordingly, the Commission does not believe that a preemptive intent can be implied under the Act. Compare, Maryland v. Louisiana, 101 S. Ct. 2114 (1981) [pre-emption implied only where state law creates obstacles to accomplishing Congressional purposes]; Katherine Gibbs v. F.T.C., 612 F. 2d 658 (2d Cir. 1979) [no pre-emption absent clear indication of Congressional intent or conflict between state and federal statutes, particularly where the field of regulation is occupied by the states]; Westinghouse Electric Co. v. Maryland, 520 F. Supp. 539 (1981).^[5]

2. Status of State Council and PIC Members Under G.L. c. 268B 

G.L. c. 268B requires all individuals who qualify as "public employees" under G.L. c. 268B, § 1(o) to file a statement of financial interests with the Commission. Excluded from the definition of "public employee" is "any person who receives no compensation other than reimbursements for expenses." G.L. c. 268B, § 1(o); 930 CMR 2.02(15). Accordingly, as long as members of the State Council and PIC remain unpaid (other than for expense reimbursement), the financial disclosure requirements of G. L. c. 268B will not be applicable to them. EC-FD-80-2. 

End Of Decision  

^[1] Following the determination of the initial number of PIC members, subsequent size determinations will be made by the PlC members themselves.

^[2] You also ask whether the PIC members are either state or municipal employees for the purposes of G. L. c. 268A. This question will be answered in a subsequent opinion.

^[3] See, EC-COI-83-21, 82-81, 80-49, 79-12.

^[4] An examination of the legislative history of this paragraph reveals minor differences in the scope of participation prohibition contained in the respective Senate and House versions of the bill which was enacted as P.L. 97-300. Neither the bills nor the conference committee report which reconciled the differing versions raises the issue of preclusion of state enforcement of existing conflict of interest provisions. See, 1982 U.S. Cong. and Admin. News, 2750.

^[5] The scope of this opinion is limited to the jurisdiction of G.L. c. 268A to State Council members. In view of the unpaid status of State Council members, they would he "special state employees" under G. L. c. 268A. § 1(o) and therefore subject to certain less restrictive prohibitions under G.L. c. 268A in addition to other limitations which they share with full-time state employees. If any State Council member has question over the application of G.L. c. 268A to a particular set of facts, he or she should submit to the Commission a request for an advisory opinion.