Opinion  EC-COI-89-17

Date:	06/19/1989
Organization:	State Ethics Commission

Employees of an agency created by a legislative act are considered to be "municipal employees" within the meaning of section 1(g) because of the agency's essentially local character. Among the factors considered by the Commission were: (1) the services the agency provides; (2) the local control over the agency; (3) the collection of local revenues; (4) the fact that surplus agency funds accrued to the local municipality; and (5) the fact that title in the agency's property vests in the local municipality upon the agency's dissolution. As a municipal agency, its employees are not required to file Statements of Financial Interests.

Facts

The Boston Water and Sewer Commission (BWSC) was created by the Boston Water and Sewer Reorganization Act of 1977, c. 436 (Act). Pursuant to the Act, the water and sewer divisions of the Department of Public Works of the City of Boston (City) were abolished and the powers and duties thereof transferred to BWSC. BWSC is charged with improving and maintaining the water and sewer systems for the benefit of the residents of the City in order to increase their commerce, welfare and prosperity and to improve their living conditions. The Act empowers BWSC to charge and collect fees for the provision of its local services. BWSC is authorized to exercise all of the powers and privileges of, and is subject to the limitations upon, cities and towns as provided by the laws of the commonwealth. 

BWSC Commission members are appointed by and may be removed by the Mayor of the City, subject to approval by the City Council. Although the Act does not specify whether BWSC employees are municipal employees, the Act does provide that BWSC members are deemed to be "special municipal employees" for purposes of G.L. c. 268A. The Act also provides that all BWSC employees are subject to the residency and voting registration requirements as would apply to such employees if employed by the City. In the event of the dissolution or termination of BWSC, title to all funds and other properties held by BWSC vest in the City.

Questions

1. Are BWSC employees "state employees" or "municipal employees for the purpose of G.L. c. 268A? 

2. Are BWSC employees subject to the financial disclosure requirements of G.L. c. 268B, s.5?

Answers

1. BWSC employees are "municipal employees" for the purposes of G.L. c. 268A. 

2. No.

Discussion

1. Jurisdiction under G.L. c. 268A

G.L. c. 268A, the Massachusetts conflict of interest law, is applicable to all public employees whether they serve at the municipal, county, or state level We conclude that BWSC is a municipal agency as that term is defined in c. 268A, s.1(f)[1] This conclusion is based primarily upon: (i) the essentially local character of BWSC's power and the services it provides, (ii) the City's control of (iii) BWSC's power to collect local revenues:[4] (iv) the fact that BWSC's yearly surpluses, if any, must be paid over to the City to appropriate as it deems necessary (Section 7(f); and (v) the fact that title in BWSC's property vests in the City upon BWSC's dissolution (Section 19).  Also significant are the Act's designation of BWSC members as "special municipal employees" (Section 19), the fact that BWSC's original employees were transferred from the City (Section 5), and the residency requirements applicable to BWSC's current employees (Section 4). Given BWSC's essentially local character, and the nature of BWSC's statutory responsibilities, the Commission concludes that BWSC is a municipal agency for purposes of G.L. c. 268A. Accordingly BWSC's employees are municipal employees subject to the conflict of interest provisions of c. 268A.[6] This conclusion is consistent with In the Matter of Edward G. Brooks, 1981 State Ethics Commission 149, in which a BWSC collection clerk was found to be a "municipal employee" for purposes of G.L. c. 268A because of BWSC's essentially local character.  Page 253

2. Jurisdiction under G.L. c. 268B

The mandatory financial disclosure requirements of G.L. c. 268B apply to any individual who holds a major policy-making position in a "governmental body.", G.L. c. 268B, s.1(h) defines a "governmental body" as any state or county agency, authority, board, bureau, commission, council, department, division or other entity. Section 1(h) excludes from the statutory definition of governmental body any city, town or municipal agency. For the reasons stated in section one of this opinion, we conclude that BWSC is a municipal agency and therefore is not a governmental body under G.L. c. 268B. See, e.g., EC-COI-FD-87-1; 86-1; 79-3. Accordingly, because BWSC is not a governmental body for purposes of c. 268B, BWSC employees are not subject to the financial disclosure requirements of G.L. c. 268B, s.5.

 

* Pursuant to G.L. c. 268B, s.3(g), the requesting person has consented to the publication of this opinion with identifying information 

[1] "Municipal agency," any department or office of a city or town government and any council, division, board, bureau, commission, institution, tribunal or other instrumentality thereof or thereunder. 

[2] The Act provides that BWSC shall have the powers and privileges of a city or town of the commonwealth. In addition, Section 1 of the Act established BWSC for the purpose of providing essential services to residents of the City. These services had previously been provided by the City's public works department. 

[3] Section 3 of the Act, for example, authorizes the appointment of commission members by the Mayor of the City (who also designates its chairperson). Commission members may also be removed for cause by the Mayor at any time. 

[4] Section 7(e) of the Act, for example, grants BWSC all of the powers and privileges of the City to collect and enforce fees, rates, rents and other charges.  

[5] "Municipal employee," a person performing services for or holding an office, position, employment, or membership in a municipal 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, but excluding (1) elected members of a town meeting and (2) members of a charter commission established under Article of the Amendments to the Constitution. G.L. c. 268A, s.1(g). 

[6] This opinion is limited to finding that BWSC employees are municipal employees for purposes of statutory jurisdiction under G.L. c. 268A. It should not be construed as determining the status of BWSC employees for any other purpose. The Commission must address any other matters raised by BWSC regarding the application of G.L. c. 268A on a case-by-case basis as requested by BWSC employees. The Commission is enclosing herewith its published Guide to the Conflict of Interest law for Municipal Employees for general guidance as to how c. 268A applies to BWSC employees.