| Date: | 03/25/1986 |
|---|---|
| Organization: | State Ethics Commission |
Advisory board members appointed by the Division of Capital Planning and Operations Deputy Commissioner to study and make recommendations on the re-use of surplus state property are not state employees for conflict of interest law purposes.
The Office of Real Property within the Division of Capital Planning and Operations (DCPO) is charged with disposing of surplus state property, pursuant to the procedures described in G.L. c. 7. Among the commonwealth's surplus or soon-to-be surplus property, are a number of very large "campuses," including the former Boston State Hospital and the Northampton State Hospital. DCPO wishes to dispose of these properties according to a comprehensive plan for the re-use of each campus. In order to assist DCPO in creating the comprehensive plan for re-users, the deputy commissioner has appointed an advisory committee to conduct a study and to make recommendations to DCPO. The committee is established pursuant to G.L. c. 7. § 40F which provides in relevant part:
The deputy commissioner may convene an advisory committee to advise him on re-uses and to recommend re-use restrictions for property declared surplus.
The only required membership is an invitation to the representatives to the general court from the city or town in which the property is located. The deputy commissioner must prepare a preliminary report which includes his recommendation and those of the advisory committee, if established.
You indicate that committees have been and will be established only in the cases of large parcels of property where disposition would have a significant impact on the community. Committee composition is intended to ensure that DCPO receives the informed opinions of a broad spectrum of the local population and that these opinions find voice in DCPO's plan for re-use of the property in question. Committee members are not compensated for their services.
Are members of the various committees established under G.L. c. 7, § 40F, state employees or special state employees for the purpose of the conflict of interest law?
No.
Chapter 268A defines 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). The issue of whether advisory committee members are considered state employees therefore depends upon whether the committee is a state agency, which is defined by the conflict of interest law as "any department of a state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department and any independent state authority, district, commission, instrumentality or agency, but not an agency of a county, city or town." G.L. c. 268A, § 1(p).
Prior opinions of the Commission have identified several criteria useful to an analysis of whether a particular entity is a public instrumentality for the purposes of G.L. c. 268A. The deciding factors in this case are:
None of these factors standing alone is 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. In considering each of these factors, the Commission concludes that advisory committee members established under G.L. c. 7, § 40F are not state employees or special state employees.
Unlike the advisory council on capital planning and operations established under § 40M, the advisory committees in question here are not established as a mandatory, permanent component to the implementation of G.L. c. 7. The existence of the committees is discretionary with the Deputy Commissioner. The committees have little specified organizational formality. Membership can be fluid and is generally open. There is no legal requirement of a certain number of meetings a year. There are no provisions for removal of members, for the conduct of committee meetings (e.g. whether the meetings must be open to the public), or for the agenda or procedures to be followed during the course of meetings. Any formality to the committee's process appears solely for the purpose of allowing the committee members to complete their tasks in timely and organized manner.
Most importantly, the committee members are selected as representatives of constituency groups for the purpose of representing outside private view points, and, as you have stated, for the purposes of receiving the viewpoints of a broad spectrum of the local community involved. Each committee is ad hoc in the sense that membership in any given committee will necessarily be different depending on the locale of the property subject to disposal.
Finally, the committee's work product can be very flexible, ranging from the most preliminary formulations to the most detailed lists. There is no legal requirement that a final report take any specific form. The committee's recommendations, if any, are considered only advisory to DPCO; the deputy commissioner of DPCO is not required to accept the recommendation in whole or in part. The fact that he cannot lawfully disregard the existence of the recommendations does not introduce a degree of formality into the work product sufficient to give state-employee status to Committee members.[1]
End Of Decision
