| Date: | 01/31/1985 |
|---|---|
| Organization: | State Ethics Commission |
Members of a practitioners' liaison committee established by the Commissioner of the Department of Revenue are not state employees for the purposes of G L. c. 268A. The committee, an ad hoc body primarily formed to facilitate communications between DOR and its practitioners, will not be performing an essential government function.
The Department of Revenue (Department) recently established a Practitioners Liaison Committee (Committee) to serve as a link between the Department and the tax practitioner community. The purpose of the Committee is to improve communications between the Department and the broad spectrum of professionals with which it deals. The Committee, which will meet on a quarterly basis, has fourteen members. The majority of the members represent tax organizations such as the Massachusetts and Boston Bar Associations, the Massachusetts Society of Certified Public Accountants, and the Massachusetts Taxpayers Foundation. Some of the members are employed as legal or accounting tax practitioners. The Committee is designed as a forum through which the Department can be apprised of the general problems which tax practitioners and taxpayers face in complying with state tax laws. The Committee will also serve as a mechanism through which the Department can disseminate information on tax law changes and Department practices. Committee members will not participate in Department decision-making processes with respect to any particular matter.
Does G.L c. 268A permit lawyers and accountants serving on the Committee to appear before the Department as representatives of individual taxpayers with matters pending before the Department?
Yes.
Because the provisions of G.L. c. 268A relevant to your question are applicable only to state employees, the focus of the Commission's response is whether Committee members are state employees. The conflict of interest law 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 have identified several criteria useful to an analysis of what constitutes "performing services for a state agency." Among those criteria are
(1) the impetus for the creation of the entity (e.g. legislative or administrative action);
(2) the entity's performance of some essentially governmental function;
(3) whether the entity receives and/or expends public funds;
(4) the extent of control and supervision exercised by government officials or
agencies over the entity.
None of these factors standing alone is dispositive. Rather the Commission considers the cumulative effect produced by the extent of each factor's applicability to a given entity, as well as analyzing each factual situation in light of the purpose of the conflict of interest law. Keeping these precedents in mind, the Commission concludes that Committee members would not be performing services for a state agency within the meaning of G.L. c. 268A.
First, the Committee is not an entity created by law, rule or regulation. It appears to be merely an ad hoc body formed to improve communications between the Department and the public it serves. Second, the Committee will not be performing some essentially governmental function. You have stated that the Committee will not participate in the decision-making process within the Department with respect to particular matters. In this way it is similar to the kinds of entities the Commission has considered in previous opinions which serve as outside resources to an agency and which are not delegated any authority by the agency they are associated with. See e.g. EC-COI-83-21; 82-81; 80-49; 79-12.[1] Third, the Committee will not be receiving or expending public funds, since you have stated that Committee members will be serving on a pro bono basis. Finally, although you were responsible for organizing the Committee, it does not appear that you will be directing the work of the Committee beyond establishing its basic parameters. You anticipate the Committee members bringing their constituents' problems and concerns to the forum Thus control and supervision by the Department of the Committee do not appear to be issues here.
For the foregoing reasons the Commission concludes that Committee members are not state employees within the meaning of G.L. c. 268A and that the potential § 4 limitations on their appearances before the Department do not apply to them. Should the Committee's work become more formalized, or should its function expand, you should seek further guidance from the Commission.
End Of Decision
