Related to:
Opinion

Opinion EC-COI-91-3

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).

Facts

Page 339   

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.   

Page 340   

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.

Questions

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?

Answers

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).

Discussion

1. Jurisdiction

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   

Page 341  

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).

  2. Commissioner's Participation

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.

  (a) Section 19

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.

  (b) Section 23

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   

Page 342   

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.   

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

[1] The Elizabeth Islands, certain Indian lands and land owned  by the Commonwealth are excluded from the MVC's jurisdiction. s.2.

[2] The MVC may include local municipal regulations in  adopting its regulations.

[3] The MVC's proposed criteria are subject to the approval  of the Secretary of EOEA.

[4] Although the land under the MVC's jurisdiction includes  all of Dukes County, we note that only one County official sits on  the MVC, the County has no oversight for the MVC and is not  statutorily required to contribute to the MVC's funding. Similarly,  while the Commonwealth must approve MVC criteria and guidelines,  the MVC does not statutorily receive state funding and does not  have jurisdiction over Commonwealth land. In comparison to the  large municipal representation on the MVC, the Commonwealth is  represented by one member. We conclude that the MVC's relationship  with municipal government outweighs its relationship with the  Commonwealth.

[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 LXXXIX of the  Amendments to the Constitution. G.L. c. 268A, s.1(g).

[6] Appointed Commissioners may be eligible for an exemption  to the general s.19 prohibition. See, G.L. c. 268A, s.19(b)(1).  This exemption is not available to elected Commissioners as elected  Commissioners do not have an appointing authority. See,  EC-COI-90-2.

[7] This advisory opinion is based on the facts as represented  by the parties. The Ethics Commission has not conducted an  independent investigation of the facts. Should any of the facts change, the Ethics Commission's conclusions may be different and  the parties should seek further guidance.

Feedback

Tell us what you think