| Date: | 02/14/1991 |
|---|---|
| Organization: | State Ethics Commission |
Members of the Martha's Vineyard Commission are considered employees of an independent municipal agency for purposes of G.L. c. 268A. A commissioner may participate in a permit application when he is a party to a lawsuit challenging Commission approval of a prior permit if he complies with section 23(b)(3).
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The Martha's Vineyard Commission (MVC) was created as a "public body corporate" by Chapter 831 of the Acts of 1977, "to further protect the health, safety and general welfare of island residents and visitors by preserving and conserving for the enjoyment of present and future generations the unique natural, historical, ecological, scientific, and cultural values of Martha's Vineyard ... by protecting these values from development and uses which would impair them, and by promoting the enhancement of sound local economies." s.s.1, 2.[1] Every local municipal land regulatory agency is governed by the standards, regulations and criteria established by the MVC in considering applications for development permits relating to areas and developments subject to Chapter 831. s.5.
The MVC is comprised of twenty-one members, of which six members are Selectmen in the member towns, or their designees; nine members are elected island-wide; one member is a Dukes County Commissioner; one member is appointed from the Governor's Cabinet; and four, non-voting members whose principal residence is not on Martha's Vineyard, are appointed by the Governor. s.2.
The MVC receives its funding through the yearly property tax levies in the individual municipalities. s.4. The MVC may also accept private contributions and state or federal grants. s.s.3, 4.
One of MVC's statutory responsibilities is the designation of critical planning districts within Martha's Vineyard and the regulation of development within these critical planning districts. Districts of critical planning concern are areas which require protection for natural, cultural, ecological or historical reasons or which may be unsuitable for intensive development. s.8. Following nominations from individual towns or from seventy-five taxpayers, the MVC may designate specific areas to be districts of critical planning concern. s.8. The legislation requires the MVC to adopt regulations for the control of districts of critical planning concern,[2] and to specify broad guidelines for the development of the district. s.s.3, 7, 8. The Secretary of the Executive Office of Environmental Affairs is required to approve the standards and criteria which the MVC proposes to use in designating an area as one of critical planning concern.
When the MVC approves a critical planning district, the municipalities in which the district is located may adopt regulations governing development within the district in accordance with the MVC guidelines and submit the regulations to the MVC for approval. If the regulations are not in conformance with MVC guidelines, or if a municipality fails to adopt regulations the MVC will adopt regulations. All adopted regulations are incorporated into the municipality's official ordinances or by-laws and are administered by the municipality. s.10. A municipality may only issue a development permit in a district of critical planning concern in accordance with regulations provided by MVC. s.9.
The MVC's second statutory responsibility is to develop criteria and standards to determine when a development project will be considered a development of regional impact[3] and to review and approve all applications for developments of regional impact. s.s.12, 14. Generally, developments of regional impact (DRI) are those developments which, because of their magnitude or the magnitude of their effect on the surrounding environment, are likely to present development issues which are significant to more than one municipality. s.12.
If a municipality determines that a development application meets the MVC DRI criteria, it must refer the development application to the MVC. s.13. The MVC is required to review all DRI permit applications, hold a hearing, and make findings concerning whether the probable benefits of the project outweigh the probable detriments, whether the proposed development will substantially interfere with the objectives of a municipality's or the county's general plan, and whether the proposed development is consistent with any municipality or MVC regulations. s.14. Absent approval by the MVC, a municipality may not grant a development permit for a DRI. s.16. Furthermore, the MVC may specify conditions to be met by the developer in order to minimize any economic, social or environmental damage. s.16.
In the spring of 1987, the MVC considered a DRI permit application presented by a realty trust for the development of a 50,000 square foot bank headquarters and supermarket, 324 parking spaces and off-site access. After a public hearing, the MVC approved the project with a number of conditions. Subsequently, two citizens' groups - the Vineyard Conservation Society and Citizens for a Livable Island, as well as individual citizens, commenced a civil suit appealing the MVC's approval. This appeal is currently pending in Superior Court.
In November, 1988, two of the named plaintiffs in the Superior Court action were elected as MVC Commissioners. These two individuals state that they originally opposed the 1987 project and joined the lawsuit as private citizens because of environmental and policy concerns. This lawsuit is being funded by a Vineyard Conservation Society Legal Defense Fund from private donations and proceeds from fundraising events. The named plaintiffs are not required to pay for legal fees. The two individuals state that they do not have any personal financial interest in the development or in the realty trust which is the developer/applicant. One of these individuals resigned his membership in both citizens' groups when he became a Commissioner. The other individual continues to be a member of the Vineyard Conservation Society.
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The permit applicant/trust has been unable to fulfill the conditions imposed in the 1987 permit and it has submitted a new DRI permit application which is currently pending before the MVC. The new application differs from the 1987 application in that the new application proposes a single 19,600 square foot supermarket with 145 parking spaces. The new proposal will also provide on-site access and will reduce the amount of pavement and increase the percentage of landscaping and green space.
1. Is the Martha's Vineyard Commission a public instrumentality within the jurisdiction of G.L. c. 268A?
2. May elected MVC Commissioners officially participate in a DRI permit application when they are named plaintiffs in a legal action challenging the MVC approval of a prior permit concerning the same piece of property?
1. For purposes of the conflict of interest law, the MVC is a municipal agency as defined in G.L. c. 268A, s.1(f).
2. The Commissioners may participate in the new permit application if they make the public disclosure required by G.L. c. 268A, s. 23(b)(3).
The threshold issue is whether the MVC is a public or private agency. In its determination of public status, the State Ethics Commission will consider:
(a) the means by which the entity was created (e.g., legislative or administrative action);
(b) whether the entity performs some essentially governmental function;
(c) whether the entity receives and/or expends public funds; and
(d) the extent of control and supervision exercised by government officials or agencies over the entity. EC-COI-90-2; 89-1; 88-24; 88-16.
No one factor is dispositive as the Ethics Commission considers the totality of the circumstances. We conclude that c. 831 manifests a legislative intent to create a public entity. The MVC was created by special legislation which expressly establishes the MVC as a "public body. " The MVC's purpose is to control land use development in a manner that will protect the public health, safety and welfare which is an obligation shared by and generally delegated to local municipalities. See, In the Matter of Richard L. Reynolds, 1989 SEC 423 (discussion of municipality's interest in G.L. c. 41). Additionally, the MVC has been delegated traditional governmental powers, such as the ability to promulgate regulations which have the force of law, and to review and approve development permits. See, Chapter 831, s.s.3, 8, 10, 12; EC-COI-90-2 (Martha's Vineyard Land Bank a municipal agency where it performs functions similar to conservation commissions); 89-1 (non-profit corporation state entity where it performs essentially governmental functions); 88-16 (Commission assists city in fulfilling statutory mandate). The majority of MVC's funding is derived from public sources. Finally, control of the MVC is vested with Commissioners who are elected or appointed to represent the public interest across Martha's Vineyard. See, Chapter 831, s.2. Accordingly, we conclude that the MVC is a public instrumentality for purposes of G.L. c. 268A.
The next issue is whether the Commission is a state, county or municipal entity. As one commentator has indicated, the focus of analysis is on "the level of government to be served by the agency in question." Buss, T he Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U.L. Rev. 299, 310 (1965). When an agency possesses attributes of more than one level of government, the State Ethics Commission will review the interrelation of the agency with the different government levels in order to determine the agency's status under c. 268A. EC-COI-89-20; 83-157; 82-25. For example, in EC-COI-82-25, we concluded that a regional school district organized under G.L. c. 71 was an independent municipal agency under the conflict of interest law where the entity was supported solely by public funds and engaged by the member towns to provide a service mandated by G.L. c. 71. In EC-COI-83-74, we concluded that local private industry councils established under the Federal Job Training and Partnership Act were municipal agencies for purposes of G.L. c. 268A based on the decision-making role the councils shared with municipal officials, the role local officials played in selecting Council members and the Council's expenditure of public funds. See also, EC-COI-89-20 (interpreting a successor statute to the Federal Job Training and Partnership Act).
Similarly, we conclude that the MVC is an independent municipal entity. Our conclusion rests on the substantial interrelationship between the MVC and local municipalities. The level of government with the most direct and substantial interest in MVC decisions is the municipal level, as each municipality is concerned with land use within its borders. The MVC shares regulatory authority and decision-making with local municipalities in matters concerning areas of sensitive land use and large development projects. The MVC is accountable to the municipalities as it derives most of its funding from a portion of each member municipality's property tax revenues. Chapter 831 also provides for significant municipal control as a plurality of the voting members are selectmen or their designees and if an elected at-large Commissioner fails to fulfill his term, the selectmen in
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that Commissioner's town will appoint a Commissioner to fill the term. s.2. Based on these facts, we conclude that the MVC is an independent municipal agency and that the Commissioners and MVC employees are municipal employees for purposes of G.L. c. 268A." See also, EC-COI-90-2 (Martha's Vineyard Land Bank is an independent municipal agency); 89-2 (water district is an independent municipal agency); 87-2 (fire district is an independent municipal agency); 82-25 (regional school district is an independent municipal agency).
All MVC Commissioners are municipal employees[5] for purposes of G.L. c. 268A. Two sections of G.L. c. 268A regulate the scope of official participation by municipal employees.
Under s.19, a MVC Commissioner is prohibited from participating as a Commissioner in any MVC proceeding affecting his financial interest or the financial interest of a member of his immediate family, a partner or organization in which he serves as an officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or has an arrangement for prospective employment.[6] As the State Ethics Commission has noted "The abstention requirement recognizes that a [municipal] employee cannot be expected to remain loyal to the public interest when matters affecting the financial interest of certain personal relationships comes before him for decision." EC-COI-89-16. For example, if the lawsuit in which the Commissioners are named plaintiffs seeks money damages, and if any subsequent action taken by the MVC regarding the property at issue can be used as evidence in the lawsuit, then the Commissioners would have a reasonably foreseeable financial interest in subsequent proceedings and must abstain from participation. EC-COI-87-9; 82-34. Similarly, if any Commissioners are direct abutters to the property under consideration, are parties in interest as defined by G.L. c. 40A, or are "parties aggrieved" as defined by the Wetlands Protection Act the State Ethics Commission will presume that these individuals have a financial interest in the property under G.L. c. 268A, s.19 and must abstain. See, EC-COI-89-33; 84-96.
Under the facts presented [7] we conclude that the two Commissioners do not have a reasonably foreseeable financial interest in the current permit application. The two Commissioners state that they, their families and their businesses do not have a financial interest in the applicant/trust or the development project. Nor do we find that the MVC Commissioners have a financial interest in the new application based on the legal challenge of the prior application. The parties indicate that the lawsuit does not seek monetary damages, but rather requests judicial review based on policy grounds. Furthermore, the new permit application is substantively different from the prior application in such characteristics as size of the project, functional use, amount of greenspace and the new application will involve a de novo hearing and judicial review. Accordingly, the Commissioners are not required to abstain from participation in the new permit determination. See, EC-COI-89-19 (husband's stock interest not sufficiently identifiable); 87-16 (financial interest speculative); 87-1.
Section 23 contains general standards of conduct which are applicable to all public employees. It provides, in pertinent part, that no employee may use or attempt to use his official position to secure unwarranted privileges or exemptions for himself or others. G.L. c. 268A, s.23(b)(2). Therefore, the MVC Commissioners may not use their official positions to secure an unwarranted privilege of substantial value for themselves or for any group with which they are affiliated. For example, the two Commissioners should take special care to provide equal access to the public forum for all interested parties at the hearing. The Commissioners must base their evaluation and vote on the merits of the application, using the same objective standards which the MVC applies to other permit applications. See, EC-COI-90-2; 89-19.
Furthermore, s.23(b)(3) prohibits a municipal employee from engaging in conduct which gives a reasonable basis for the impression that any person or entity can improperly influence him or unduly enjoy his favor in the performance of his official duties. Issues are raised under s.23(b)(3) because of the Commissioners close prior and current relationship with groups who so strenuously oppose this development project that they have initiated a lawsuit. These circumstances create an appearance of a conflict of interest or bias in one's official actions as a result of one's private activities. See, EC-COI-89-16 (past friendship relationship); 88-15 (private dealings with development company); 85-77 (private business). In order to dispel an appearance of a conflict of interest, s.23(b)(3) requires that the Commissioners publicly disclose, prior to their participation in the new permit application, their status in the lawsuit and their relationships with any interested group. The proper procedure is to disclose in writing all of the relevant facts and to file the disclosure with the MVC Executive Director and with the town clerk for the town which has referred the permit application to the MVC. The Commissioners should also make a verbal public disclosure for inclusion in the meeting minutes prior to any official participation or action. See, EC-COI-90-2; 89-19; In the Matter of George Keverian, 1990 SEC 460.
We note that the issue concerning whether MVC Commissioners should be subject to abstention standards which are stricter than those contained in c. 268A is a policy question that is beyond the scope of this opinion and can only be addressed through legislative amendment or through the implementation of supplementary standards of conduct by the MVC pursuant to G.L. c. 268A, s.23(e). Notwithstanding c. 268A, the alleged bias of a
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municipal official may be addressed within the context of a petition for judicial review of the agency's decision. See, Attorney General v. Department of Public Utilities, 390 Mass. 208 (1983); EC-COI-82-31.
