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Opinion

Opinion EC-COI-88-2

Date: 02/03/1988
Organization: State Ethics Commission

 

A Democratic city committee is not a state or municipal agency for purposes of 268A because its members do not perform services for the public.

Facts

You are the First Vice Chairperson of the ABC Democratic City Committee (Committee). The Committee is composed of individuals who are all Democrats and who are all residents of ABC. Committee members are elected every four years at the time of the presidential primary election. The Committee would like to establish a scholarship to be awarded to a child or relative of one of its members. You are concerned about how the conflict of interest law would affect the Committee as it seeks to establish this scholarship.

Question

Is the ABC Democratic City Committee a governmental entity for the purposes of G.L. c. 268A?

Answer

No.

Discussion

The scope of the restrictions on the members of the Committee depends upon whether the Committee is a governmental agency for the purposes of G.L. c. 268A. Municipal agency is defined by the conflict of interest law as "any department or office of a city or town government and any council, division, board, bureau, commission...or other instrumentality thereof or thereunder", G.L. c. 268A, s.1(f). State Agency 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.

In its previous determinations concerning the public status of an entity for the purpose of c. 268A, the Commission has focused on the following four factors:

(1) the means by which it was created (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; and

(4) the extent of control and supervision exercised by government officials or agencies over the entity.

EC-COI-85-22; EC-COI-83-74. None of these factors alone is dispositive. The Commission has considered, in each case, whether a particular combination of factors suffices to render an entity a governmental entity. For example, in EC-COI-84-65, the Commission concluded that a permanent charitable trust fund established to fund important civic improvements aimed at benefiting the residents of Boston, although subject to a certain amount of municipal control, was a private entity. In addition, the Commission has concluded that local private industry councils are municipal agencies within the meaning of G.L c. 268A, s.1(f) because of the role they play in the implementation of the Federal job Training and Partnership Act; namely in the decision- making role they share with local elected officials in the development of job training plans, the selection of grant recipients and the expenditure of public funds. EC-COI-83-74.

Although the great majority of individuals elected by 

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voters at municipal elections are municipal employees for the purposes of G.L. c. 268A, we find that this conclusion will not apply when individuals elected at municipal elections are not expected to perform public service. In this case, the Committee does not possess sufficient indicia of a government agency. The Committee was created solely by members of the party interested in party politics. The function of the Committee is to organize the party on the local level. The Committee does not receive or expend public money to achieve its goal. ABC has no control over the actions of the Committee, which has no City approval or sponsorship. The mere fact that the state regulates the Committee, pursuant to G.L. c. 52, is insufficient to render the Committee a municipal or state agency.[1]

Based on the foregoing, for the purposes of G.L. c. 268A, the Committee is considered a private entity, rather than a government agency.[2] Accordingly, the Committee is not within the jurisdiction of G.L. c. 268A. 

[1] Indeed, the Supreme Court has set limits on the permissible range of regulation of these kinds of entities by the government. Tashjian v. Republican Party of Connecticut, 107 S. Ct. 544(1986). see also, San Francisco County Democratic Central Committee v. Eu 826 F. 2d 814(9th Cir. 1987).

[2] The Supreme Judicial Court in another context has noted that members of these political committees do not hold public office. Attorney General v. Drohan, 169 Mass. 534,535,48 N.E. 279(1897).

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