Opinion

Opinion  EC-COI-83-85

Date: 05/24/1983
Organization: State Ethics Commission

May a Director of a Regional Planning District Commission simultaneously serve as an Administrator of a Regional Transit Authority?

Table of Contents

Facts

You are the full-time Director of a Regional Planning District Commission (RPDC). The RPDC is established pursuant to G.L. c. 40B which authorizes any group of cities and/or towns by a vote of the respective city councils or town meetings to establish a planning district as a public body corporate.  G.L. c. 40B, §3.  A planning district commission is established consisting of a representative from each member municipality.  Id. §4.  The planning district annually accumulates its budget from assessments on member towns and other sources, such as state or federal grants, bequests, gifts or contributions. Id. §7.  The regional planning district commission is set up to study the resources, problems, possibilities and needs of its district and to prepare a plan of development and recommendations for improvement of the district.  You state that the RPDC draws up plans in the areas of transportation, economic development and housing in the region.  These plans are implemented by the various government officials and agencies in the region.

You are also the part-time compensated Administrator of a Regional Transit Authority (RTA), a political subdivision of the Commonwealth established pursuant to G.L. c. 161B and authorized to develop, finance and contract for the operation of transportation facilities and equipment in the region.  In the process of doing so, you state that the RTA implements portions of the transportation plan drawn up by the RPDC.

Question

May you simultaneously serve as the Director of the RPDC and the compensated Administrator of the RTA?

Answer

No.

Discussion

The RPDC is an entity set up by statute and supported primarily by assessments on the member communities.  It is a public agency supported by municipal funds and administered by a commission made up of municipal officials.  The RPDC is therefore, a "municipal agency" for purposes of the conflict of interest law, G.L. c. 268A, §l et s7q.  Compare Atty. Gen. Conf. Op. No. 384 (regional school districts are "municipal agencies").  However, because the RPDC is intended to operate outside of the infrastructure of the individual municipalities within it, it is considered an independent municipal agency and not a subdivision or instrumentality of any or all of the member towns.  Compare EC-COI-82-26 (regional school district is independent municipal agency): also EC-COI-81-100 (advisory board to state agency made up of municipal appointees is an independent state agency).  As "a person performing services for or holding an office in a municipal agency," you are a municipal employee as defined in G.L. c. 268A, §l(g).

Section 17(a) of G.L. c. 268A prohibits a municipal employee from, otherwise than as provided by law for the proper discharge of his official duties,l/ directly or indirectly receiving compensation from anyone other than the municipal agency by which he is employed in relation to any particular matter2/ in which that municipal agency is a party or has a direct and substantial interest.  "This section of the statute reflects the old maxim that 'a man cannot serve two masters.'  It seeks to preclude circumstances leading to a conflict of loyalties by a public employee."  Commonwealth v. Canon, 373 Mass. 494, 504 (opinion of Liacos, J., dissenting on other grounds), cert. den. 435 U.S. 933 (1977).  Regional transportation authorities, like the RTA, are state agencies for purposes of the conflict of interest law.  EC-COI-81-11979-91.  As Administrator of the RTA you are the chief operating official of that entity and are responsible for its activities.  Among those activities is the implementation of the transportation plan established for the region by the RPDC.  That plan is a "determination" and, therefore, is a "particular matter" which is of direct and substantial interest to the RPDC.  In being paid by the RTA for implementing the transportation plan, you are being compensated by someone other than the RPDC in relation to a particular matter in which the RPDC has a direct and substantial interest.  To the extent that your compensation from the RTA is in relation to implementation of that plan, the receipt of that compensation violates G.L. c. 268A, §17(a).  See EC-COI-81-119 (enclosed) (full-time county planning and economic development commission employee employed part-time by regional transit authority).  Therefore, you may not be compensated by the RTA for that portion of your duties as Administrator which are involved with implementing the MRPDC's transportation plan.3/

1/ The compensation you receive from the RTA is not provided by law for the proper discharge of your official duties as Director of the RPDC.  Compare EC-COI-81-33.

2/ For the purposes of G.L. c. 268A, "particular matter" is defined as "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 organizations, powers, duties, finances and property."  G.L. c. 268A, §l(k).

3/ Similarly, as a part-time employee of a state agency, you are a special state employee.  Section 4 of G.L. c. 268A prohibits you from being compensated by anyone other than the Commonwealth  in connection with any particular matter in which the state has a direct and substantial interest and in which you participate as a state employee.  That section would also appear to prohibit your dual role in connection with the transportation plan.

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