Collin Dias v. Jobs for Fall River (SPR 20251282)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 27, 2025 SPR25/1282 Kenneth Fiola, Jr. Esq. Executive Vice President Jobs for Fall River dba Bristol County Economic Development Consultants 139 South Main Street Fall River, MA 02720 Dear Mr. Fiola: I have received the petition of Collin Dias appealing the response of Jobs for Fall River (Jobs) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 25, 2025, Mr. Dias requested, “...all records, including but not limited to, emails, and any other written correspondence to and from your office with the following key words ‘Bishop Connolly’ ‘Fall River Public Schools’ ‘Mayor’. I ask for all records in the years 2024 and 2025.” Jobs responded on April 25, 2025. In its response, Jobs stated, “... Jobs for Fall River Inc. remains as a 501(c) (4) private non-profit organization organized under M.G.L Ch. 180 and not subject to your FOIA or Public Records request. As such, this office will not be providing you with any of your requested information.” Unsatisfied with Jobs’ response, Mr. Dias petitioned this office and SPR25/1282 was opened as a result. On May 9, 2025, Jobs provided a supplemental response and stated, ...Jobs for Fall River Inc. is a non-governmental 501 (c) (4) private non profit organization with a[n] independent volunteer Board of Directors none or of which are elected officials or serve in any governmental capacity. We are in compliance with our annual IRS 990 filings and they are public record. Jobs for Fall River Inc. does receive federal funding from the Fall River Community Development Agency (FR CDA) for small business lending and federal project oversight and all activities pertaining to can be obtained through the FR CDA. Other governmental agencies receiving correspondence from this office may be considered public record and can share such information if they so choose. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Kenneth Fiola, Jr. SPR25/1282 Page 2 May 27, 2025 The Public Records Law The Public Records Law applies to all records ... made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32… G. L. c. 4, § 7(26). Jobs’ Status The Supreme Judicial Court has developed a five factor test to determine whether an organization is considered a “public entity” for purposes of the Public Records Law. See Massachusetts Bay Transp. Auth. Ret. Bd. v. State Ethics Comm’n (Board I), 414 Mass. 582, 589-91 (1993) (outlining the five-factor test); see also Globe Newspaper Co. v. Massachusetts Bay Transp. Auth. Ret. Bd. (Board II), 416 Mass. 1007 (1993) (applying the test in the context of the Public Records Law). The five factors are as follows: 1) the means by which the entity was created; 2) whether or not the entity performs an essentially government function; 3) whether or not the entity receives or expends public funds; 4) the involvement of private interest; and 5) the extent of control or supervision exercised by government officials, agencies, or authorities over the entity. Board I, at 587. The five factors of this test are cumulative, and no one factor is dispositive. Id. Creation of the Entity The first factor considered in this analysis is the means by which the entity was created. See Board I, at 590. This factor requires the presence of some form of legislative or administrative action underpinning the creation of the entity. Id. at 587, 589. Based on information described in the Secretary of State Corporations Division, Jobs for Fall River was incorporated in March 29, 1978 as a nonprofit corporation.

Kenneth Fiola, Jr. SPR25/1282 Page 3 May 27, 2025 Performance of an Essentially Governmental Function The second factor in this analysis concerns whether Jobs performs an “essentially governmental function.” See Id. at 590. As described in a website, Jobs for Fall River, Inc. is a d/b/a for Bristol County Economic Development Consultants and it states, “[i]n 1978, concerned businessmen and women established the private, nonprofit Jobs for Fall River, Inc. as its ‘one-stop shop’ for business and economic development. The office maintains a professional staff that is organized into four main areas – finance, business development and marketing, business retention and project administration.” The website also states, “[i]n recent years, Jobs for Fall River, Inc. d/b/a for Bristol County Economic Development Consultants (BCEDC) has expanded its service area to include all of Bristol County.” Jobs has been determined by the Internal Revenue Service to be a charitable organization described in section 501(c)(4) of the Internal Revenue Code and – unlike governmental bodies – it files annual information returns on Form 990, Return of Organization Exempt From Income Tax.” Jobs’ IRS filings state that its mission is “to promote prosperity and the general welfare of the citizens of the City of Fall River by stimulation economic and industrial growth and expansion in the area to include the City of Fall River and the towns of Freetown, Somerset and Westport.” Upon review, Jobs’ mission is not an “essential” governmental function as it promotes economic and industrial growth and expansion in Fall River area. It does not appear that Jobs acts as a public entity. Receipt and Expenditure of Public Funds Upon review, Jobs funds its lending from federal and private grants or loan programs so that Jobs may make loans to eligible local businesses. In its May 9, 2025 response, Jobs stated, “Jobs for Fall River Inc. does receive federal funding from the Fall River Community Development Agency (FR CDA) for small business lending and federal project oversight and all activities pertaining to can be obtained through the FR CDA.” Where Jobs receives its funding from federal and private grants, as well as from the FR CDA, an analysis of this factor does not clearly sway the determination as to whether Jobs is a public entity. Involvement of Private Interests; Control and Supervision The final two factors in this analysis relate to the extent of any involvement, control, or supervision exercised by governmental officials. Jobs’ response states that its “... organization [operates] with an independent volunteer Board of Directors none or of which are elected officials or serve in any governmental capacity.”

Kenneth Fiola, Jr. SPR25/1282 Page 4 May 27, 2025 These factors favor a conclusion that the City of Fall River does not exercise control over Jobs’ activities. Where oversight of Jobs is entirely in the hands of an independent volunteer Board of Directors, the final two factors weigh heavily against a conclusion that Jobs is a public entity. The Five Factors on Balance The Supreme Judicial Court has stated that the five factors of the public entity test are to be balanced, and no one factor is dispositive. Board I, at 587. On balance, the lack of a legislative underpinning, and the control and supervision exercised by a nonprofit volunteer Board of Directors indicates that Jobs is not a public entity. Therefore, the analysis of these factors favors a finding that Jobs is not a public entity, and therefore not subject to the Public Records Law. Conclusion Upon a review of each factor of the five-point public entity test, I find that Jobs is not a public entity, and thus not obligated to disclose records in response to requests made directly to Jobs under the Public Records Law. Therefore, this office holds no authority to compel Jobs to release any responsive records. Accordingly, I will now consider this administrative appeal closed. If Mr. Dias is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Collin Dias