Opinion  EC-COI-86-4

Date:	03/25/1986
Organization:	State Ethics Commission

Members of the Department of Environmental Quality Engineering Administrative Penalties Advisory Committee are state employees as defined by §1(q) of the conflict of interest law.

Facts

The Administrative Penalties Advisory Committee ("Committee") of the Department of the Environmental Quality Engineering (DEQE) was established by, St. 1983 c. 95, § 4 "to provide advice and consultation to the department (DEQE) concerning civil administrative penalties."^[1] DEQE was given the authority to assess civil administrative penalties for violations of environmental laws enforced by DEQE, e.g. air pollution, water pollution, hazardous waste, wetlands protection. Six Committee members are appointed by the Governor. Each Committee member represents one of the following: one is a representative of the Massachusetts Health Officers Association and a full-time Health Agent for the Town of ABC Board of Health. One, a representative of a small business association is an architectural consultant who, from time to time, does consulting work for clients on particular matters pending before the Department. One, a representative of the Associated Industries of Massachusetts, is a full-time employee of an organization that lobbies for legislation and regulation to promote the growth of industry and commerce in Massachusetts. One, a representative of a statewide environmental protection organization, is a full-time employee of an organization that lobbies for legislation and regulation to promote the protection of the environment. The Committee also includes the designee of the Attorney General. Members of the committee serve without compensation.

Chapter 95 of the acts of 1985, (c. 95) provides that DEQE may assess a civil administrative penalty after written notice. The notice must take a particular form. In defined circumstances a penalty may be assessed without prior written notice. A respondent has the right to an adjudicatory hearing under the administrative procedures act but may be deemed to have waived such a right under certain circumstances.

The statute provides general guidelines in consideration of the amount of civil penalties. There are specified minimum and maximum fines established depending on the type of failure to comply, in general ranging from $100-$1000, but in certain failures up to $25,000. Procedures are set up for judicial review. An escrow interest bearing account is generally required as a jurisdictional prerequisite to review and provisions are made for additional damages and attorney fees if collection efforts are required.  

Section 2 of c. 95 provides no civil administrative penalty shall may be assessed until the commissioner has promulgated regulations as required by c. 30A. Section 3 sets a deadline (June 30,1986) for the promulgation of regulations for assessing fines in particular subject areas. Sections 2 and 3 establish mandatory requirements which are not subject to discretion.

Question

Are the members of the Committee "state employees" within the meaning of G.L. c. 268A, s.1(q)?

Answer

Yes.

Discussion

General Laws chapter 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".^[2] Among those criteria are:

1. the impetus for the creation of the position (whether by statute, 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 employees, or will she be expected to represent outside private viewpoints;
4. the formality of the person's work product, if any.

Generally, the Commission has found that advisory committees created by statute are state agencies and its members state employees. EC-COI-82-157 (Capital Planning and Operations Advisory Council), EC-COI-82-139 (Employee Advisory committee to the court). The first factor, however, standing alone, should not be dispositive. 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.^[3] Keeping these precedents in mind the commission concludes that members of the Committee will be performing services for a state agency within the meaning of Chapter 268A, § 1(q).

The Committee is a mandatory and permanent component to the implementation of c. 95, which distinguishes it from temporary ad hoc advisory committees which the Commission has regarded in other cases as exempt from the definition of state agency. See e.g. EC-COI-80-49, and cases cited therein. As a practical matter, the bulk of the Committee's time and effort may be devoted to the initial adoption of regulations. This is likely because fines cannot be assessed until regulations are in place, regulations are mandatory, and certain timetables are established. The functions of the Committee, however, appear to be permanent. Reasonably interpreted, § 4 envisions an ongoing committee which will continue to review the development of civil administrative penalties on a continuing basis. This recognizes that the regulation promulgation process will be subject to periodic review in light of experience.

The Commission is aware of the lack of organizational formality specified in c. 95.^[4] On balance, however, the resolution of your question turns on whether the Committee is performing essentially governmental functions. In this regard, the Committee is more than merely a forum for public comment but rather an entity which is assisting in the work product of the state agency. See, e.g. EC-COI-84-147. Although the commissioner of DEQE may ultimately disapprove or ignore a specific regulation, the statute envisions the regulation drafting to begin at the Committee level. Thus the Committee is contemplated as a working committee with a substantive role in the regulation process and not simply as a sounding board for constituent groups. The theoretical possibility that the commissioner could ignore the Committee's work altogether and begin the drafting process anew with in-house staff does not alter the conclusion that the Committee is performing a public function. Regulation drafting is a governmental function customarily initiated by agency staff for the purpose of making recommendations to agency heads, boards, or commissions. See G.L. c. 30A, §§ 2 et. seq.

Therefore the Commission concludes that members of the Committee are state employees within the meaning of G.L. c. 268A, § 1 et. seq., and therefore subject to the restrictions set forth therein.^[5]


End Of Decision

[1] St. 1985 c.95 s.4 provides as follows:

Section 4. There is hereby established within the department an administrative penalties advisory committee, hereinafter called the committee, to provide advice and consultation to the department concerning civil administrative penalties. Said committee shall review, the development and implementation of regulations for civil administrative penalties, and shall make recommendations for regulations establishing the manner in which the amount of civil administrative penalties shall be assessed.

[2] See EC-COI-84-55; EC-COI-83-30; EC-COI-83-21; EC-COI-82-81; EC-COI-80-49; EC-COI-79-12.

[3] See EC-COI-84-l47.

[4] Certain formalities have been voluntarily implemented by the committee including regular meetings, written agendas, and memoranda summarizing decisions. These formalities have obviously been introduced solely for the purpose of allowing the committee members to complete their tasks in a timely and organized manner.

[5] In view of their unpaid status, Committee members are "special state employees" which means they are exempt from several restrictions under the conflict of interest law and other sections apply less restrictively. To the extent that several committee members represent non-state patties with respect to their dealings with state agencies, issues under G.L. c. 268A. § 4 come into play. Given their status as special state employees, however, committee members who serve less than sixty days annually will be subject to restrictions under § 4 with respect to matters within their official responsibility as Committee members. Aside from this restriction, § 4 does not prohibit Committee members from working for clients on matters pending before DEQE or other state agencies.

Section 6 of the conflict law prohibits state employees from participating in particular matters in which they, or certain designated persons, have a financial interest. Committee members, however, would not be prohibited by this section from participating in the drafting of regulations of general applicability irrespective of their financial connection to regulated entities. This is because regulation drafting is not deemed to be a particular matter where a substantial segment of the regulated public is affected in a uniform way or the regulation addresses general issues or subject areas. Committee members who have specific questions about their situations should seek further guidance from the Commission staff.