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Opinion

Opinion EC-COI-87-28

Date: 12/09/1987
Organization: State Ethics Commission

A member of a municipal neighborhood council which serves as a discussion forum for municipal issues and which has no official responsibility is not a municipal employee for the purposes of 268A. Should the council become formally organized and be delegated official municipal functions, however, then the jurisdictional conclusion would need to be reexamined.

Facts

You are a member of a city Neighborhood Council (ANC) which provides neighborhood participation in municipal government decisions affecting land use, development and service delivery in a particular neighborhood. Council members were initially selected by the Mayor from residents who submitted 25 signatures from their neighbors. Since the ANC Was created without law or ordinance, it has no power to compel agency action. Your power is limited to rendering advice as needed by various mandated City agencies. For example, the director of the city Redevelopment Authority (CRA) has from time to time invited neighborhoods within ANC's area to participate in discussion of projects in their applicable neighborhoods. 

ANC has adopted bylaws but has not incorporated and, therefore, it is unclear whether the ANC has any legal status. The by-laws provide for open membership of anyone over 18 and regulates the conduct of meetings. The by-laws further provide that "to the extent that it is applicable in defining conflict of interest M.G.L. 

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c. 268A is applicable."[1] 

Recently the city has attempted to formalize the relationship between the City, the CRA and the neighborhood councils. This formalization has taken the form of a draft model agreement. The original draft agreement stated that neighborhood councils are to provide full and meaningful participation in City government and are to participate fully in municipal affairs. The revised draft eliminates the language "participate fully in municipal affairs" and substitutes "render advice in municipal affairs." Further, the original draft agreement stated that members of the neighborhood councils shall be special municipal employees within the meaning of G.L. c. 268A, the conflict of interest law. The revised draft eliminates any reference to c. 268A. The ANC is currently considering whether to execute this revised Agreement.[2] 

If the Agreement is signed, the City will delegate several responsibilities to the ANC. For example, the City agrees that it will notify ANC of any proposed change In zoning or land use. It agrees that no RFP for development of land or property owned by the City or the CRA will be issued prior to review by ANC. It also agrees to share communications resources and to give the ANC access to information from various City departments as well as the CRA, to enable the ANC to suggest improvements to land use and development decisions. The City will also obligate itself to consider all written recommendations and to provide written reasons for any decision inconsistent with those recommendations.[3]

Question

Are ANC members currently municipal employees within the meaning of G.L. c. 268A?

Answer

No. If the ANC executes the proposed agreement as drafted, however, the provisions of G.L. c. 268A may apply to ANC members.[4]

Discussion

Generally, we have found that advisory committees created by law are public agencies, and its members are public employees. EC-COI- 86-4 (DEQE Penalties Advisory Committee and cases cited therein). On the other hand, the Commission has generally concluded that unpaid members of citizens advisory committees which are not created pursuant to any statute, ordinance, rule, or regulation are not municipal employees within the meaning of the conflict law, In addition to taking into consideration the primary factor for the impetus for the creation of the position (whether by statute, rule, regulation or otherwise), the Commission also considers the degree of formality associated with the jobs and its procedures; whether the holder of the position will perform functions or tasks ordinarily expected of employees, or will be expected to represent outside viewpoints; and the formality of the person's work product, if any. Applying these criteria to ANC as presently constituted, we conclude that the ANC is not a municipal agency within the meaning of the conflict law and its members are not municipal employees. 

Neighborhood councils, including ANC, were initially conceived for discussion forums, with a purely advisory role. Membership in the various councils has been flexible. For example, the Mayor has appointed members of some neighborhood councils while others have been elected, and in your neighborhood, membership is open to all residents of the neighborhood 18 years of age and older. As currently situated, the land use decisions to be reviewed by ANC and other neighborhood councils are subject to the discretion of the Mayor's office and/or the BRA. In the absence of any legal recognition that CNC is an integral part of the City's land use decisions, and in the absence of any legal requirements regarding the selection of council members, terms of office, removal, or formal recognition of the ANC's ability to act as City officials, we conclude that ANC is insufficiently organized and structured to be deemed an municipal agency for the purposes of G.L.c. 268A. This result is consistent with EC-COI-86-5, in which we found that an advisory committee organized to provide input into local land use decisions was not a public agency. The factors present in that case are present here: discretionary power, fluid membership, lack of organizational requirements spelled out in law or regulation, and the fact that committee members "are selected as representatives of constituency groups for the purpose of representing outside private viewpoints and for the purposes of receiving the viewpoints of a broad spectrum of the local community involved." See, also EC- COI-80-49; 82-81

On the other hand, the execution of a contract like that currently proposed could result in the opposite conclusion, The execution of a contract between the City, the CRA and the neighborhood councils would reflect a determination of the importance of ANC's functions and the need to institutionalize ANC's input into a formal process. The proposed agreement reads like an ordinance and may be binding and enforceable. Given the explicit content of such an agreement, it may very well be that G.L. c. 268A would treat ANC no differently than any other advisory committee created explicitly by law if the contract is executed.[5] 

The contention that ANC should be deemed to be a municipal agency upon execution of the agreement is further supported by an examination of s.8.8 of the proposed agreement. The City obligates itself to provide resources to ANC including installation and maintenance 

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of telephones and the establishment of an early notification system. These facts demonstrate an intent to have the councils perform service to the City. 

[1] The intent of this language is unclear although it appears to reflect an intent to have the several principles of G.L. c. 268A apply to ANC members. Jurisdiction under G.L. c. 268A is, of course, a question of law which turns on the facts, rather that on the contents of a by-law. 

[2] A number of citizens have complained that participation in neighborhood councils is dependent on the administration's good will and that the advisory power of the councils results in their becoming partisan political tools. For this reason, the organization of neighborhood activists, has proposed establishment of elected neighborhood councils which are given power to deal with land issues. The organization has introduced an ordinance to be voted on by the city council. The ordinance would provide the neighborhood councils with approval powers over planning and development decisions. If approved, the ordinance may very well make ANC members municipal employees. See, page 4, infra. 

[3] We can make no assumptions as to the enforceability of any of the provisions of the proposed agreement. 

[4] Because the proposed contract is subject to revision, we will reserve any formal jurisdictional conclusion until a final agreement has been approved or submitted for review by ANC or the city solicitor. The analysis herein is intended to provide guidance concerning the factors the Commission would deem determinative. 

[5] The agreement would arguably provide ANC members with powers ordinarily executed by governmental personnel. It spells out that the ANC shall review draft requests for proposals (RFP's) and solicit proposals for BRA property. The agreement provides that ANC will play an integral role in formulating the terms that a RFP should take. Indeed, no RFP for development of land or property by the City or the BRA would be issued prior to review by ANC. ANC would also be given the authority to meet with applicants who are finalists in the consideration for designation by the City or the BRA. The City and the BRA would be obligated to consider all written recommendations received from ANC pertaining to matters within its jurisdiction and to give written reasons to ANC for any action inconsistent with a ANC recommendation.

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