.  With regard to the “membership” requirements, the Workforce Investment Act, Section 117 provides the requirements for membership on a local workforce investment board:

 Section 117 (b)(1) states that the “Governor of the state, in partnership with the State board, shall establish criteria for use by chief elected officials in the local area for appointment of members of the local boards… in accordance with the requirements of paragraph (2).”

Section 117(b)(2)(A)(i) specifically describes the requirements for “representatives of business in the local area.”  Business members shall include representatives who:

(I) are owners of businesses, chief executives or operating officers of businesses , and other business executives or employers with optimum policymaking or hiring authority;

(II) represent businesses with employment opportunities that reflect the employment opportunities of the local area; and

(III) are appointed from among individuals nominated by local business organizations and business trade associations.

Consistent with the Act, the WIB Certification Policy requires that “business” candidates are business executives with optimum policymaking or hiring authority and represent businesses that provide employment opportunities in the local area.  It is inconsistent with the requirements of the Workforce Investment Act to deem that that self employed individuals who do not have any “employees” qualify under (I) and (II) above.

With respect to “retired” individuals, if an individual who was appointed as a business member retires and does not relinquish or forfeit his/her “optimal policymaking or hiring authority” with the business organization (such as may be the case with the owner of a company) a new appointment as a “business” member when his/her term expires would meet the requirements for “business” membership under Section 117 (b)(2)(A)(i)(I) and (II).  If however, the individual does relinquish or forfeit his/her prior optimal policymaking or hiring authority upon retirement, that individual may not be appointed for a new term as a “business” member.

Nothing in the Policy prohibits the chief elected official of the area from making appointments of such individuals to the local board under the provisions of Section 117 (b)(2)(B) which allows the CEO to include “other individuals or representatives of entities as the chief elected official …may determine to be appropriate.” 

However, any such appointments made to the local board under the provisions of Section 117 (b)(2)(B) may not be counted towards the “majority” “business” membership requirement described in Section 117 (b)(4).

Neither may an individual appointed to the board by the local chief elected official under the provisions of Section 117 (b)(2)(B) serve as “chair” of the local board, as the chair must be elected from the “business” membership in accordance with Section 117 (b)(5).

Regarding the need to remove current members who do not meet the “new” requirements, the policy expressly states that individuals who are retired, self employed or who no longer hold qualifying positions with their employers will be allowed to compete their current membership term, but must be replaced as business members if they do not meet the qualification requirements for a “new appointment” when their current term expires.  There is no requirement that they be removed before the expiration of their current appointment period. 

Any individual who, at the time of the board’s scheduled election of its officers (or at the time of any emergency election conducted under the terms of the board’s by-laws), is designated as a “business” member is eligible to be elected as the chairperson of the WIB and may serve as chair of the board for the full term of the chair as specified in the board’s by-laws.   If, however, upon the expiration of his/her membership term, an individual who has been elected to serve as chairperson of the WIB no longer meets the requirements to be appointed as a “business” member, that individual may not be considered for subsequent election to the chair.

A Chamber of Commerce is generally considered a “local business organization” that may nominate business members for the board.  An officer (or staff person) of a Chamber of Commerce (such as its elected chair person or executive director) may not be nominated to a local workforce investment board as “business” member representing the Chamber.  However, a member of the Chamber of Commerce may be nominated as a “business” member as a representative of his/her own company in accordance with the requirements of Section 117(b)(2)(A)(i).  Please see the response to Question #1, above.

The Policy does not prohibit the chief elected official of the area from making appointments of such individuals as the Chair or other representative of a local Chamber of Commerce to the local board (as representatives of the “Chamber” under the provisions of Section 117 (b)(2)(B) which allows the CEO to include “other individuals or representatives of entities as the chief elected official …may determine to be appropriate.” 

As cited above, such appointments made to the local board under the provisions of Section 117 (b)(2)(B) may not be counted towards the “majority” “business” membership requirement described in Section 117 (b)(4).

However, if it is determined that the primary focus of a local Chamber of Commerce or other business organizations is employment, training and the growth of industries, it may be permitted to represent “business”.  The representative would count toward the “majority” business membership requirement, and as a “business” member would be eligible to act as the board chairperson.

Language to clarify membership under such circumstance has been incorporated into the policy document.

Section 117(e) of the Workforce Investment Act (29 U.S.C. § 2832(e) requires LWIBs to make available to the public, on a regular basis through open meetings, information regarding the activities of the LWIB.  While LWIBs (as federally created entities) are not technically subject to the Commonwealth’s Open Meeting Law per the state statute, they still are required to conduct open meetings.   As this can best be accomplished by the LWIBs following the procedures specified in the State Open Meeting Law (G.L. c. 39, § 23B) the Commonwealth requires all Local workforce Investment Boards to conduct business in a manner consistent with the requirements of  G.L. c. 39, § 23B.

G.L. c. 39, § 23B requires both notice and posting of the notice.  This section specifies that, “a notice of every meeting of any governmental body shall be filed with the clerk of the city or town in which the body acts.”  This section specifies further, “If the meeting shall be of a regional or district governmental body, the officer calling the meeting shall file the notice thereof with the clerk of each city and town within such region or district, and each such clerk shall post the notice in his office or on the principal official bulletin board of the city or town.”

Since the LWIB represents the cities and towns within the local workforce investment area, it is similar to a “regional or district governmental body.”  Therefore, the officer calling the WIB meeting must file a notice of the meeting with the clerk of each city or town within the local workforce investment area to meet the spirit and letter of the statute.  How that notice is transmitted is left up to the clerks in the cities and towns.  It is suggested that the notice be mailed to the lead city/town and emailed or faxed to the other cities and towns.  However, the LWIB should check first with the appropriate city or town clerk concerning its notice transmittal requirements.

Once the LWIB sends notice of the meeting, the posting of the notice falls to the city or town clerk.  Under the statute, the clerk can post the notice either in his/her office or on the principal official bulletin board of the city or town.  In most cities or towns, this is located outside the clerk’s office.

In 1989, the State Ethics Commission issued an opinion (EC-COI-89-20) concluding that the Conflict of Interest Law (G.L. c. 268A) covered the Regional Employment Boards (REBs) and their members.  Upon further legal review, the Department of Workforce Development (DWD) has determined that WIB members, like their predecessor the REB members, are subject to G.L. c. 268A – Conflict of Interest statute.

In EC-COI-89-20, the Ethics Commission also concluded that the REB members were exempt from filing the Statements of Financial Interest as required under G.L. c. 268B.  This holding was based on the fact that the REBs were exempt from the definition of governmental body and the REB members received no compensation, other than reimbursements for expenses.  DWD has determined, for the same reasons, that WIB members are also exempt from the G.L. c. 268B filing requirements.

Does the policy require the CEO as a "condition" of certification to create two distinct departments within the municipality if the “employer of record” for WIB and Fiscal Agent staff is the municipality?  Such a mandate does not seem to be supported by any law or regulation.

It has been a requirement to maintain a file of nomination letters for WIB members since the first WIB Certification process was undertaken in conjunction with the initial implementation of the Workforce Investment Act.  This requirement has not changed.  Under the Act, the CEO must make appointments among individuals nominated as “business”, “education” and “labor” members.  The CEO may make direct appointments without nomination for representatives of Community Based Organizations, Economic Development entities and One-Stop Career Center Partners. 

To avoid potential issues of non-compliance resulting from quality assurance review of the Commonwealth’s LWIBs, each local board should assure that it maintains a file of nomination letters for each individual nominated for board membership in accordance with the membership requirements of §117 (b)(2)(A).

The response to the question in Section I.3 of the CEO/LWIB template document is intended to provide a description of the current LWIB membership and how it is reflective of the local area’s demographic, geographic region and industries.

The LWIB Diversity Plan referenced in the Submission Checklist should describe the process used to establish a diversity goal that is reflective of the local area and steps taken to attain a reasonable representation.  It should also describe a plan of action for continuing to meet established diversity goals and addressing/improving all aspects of diversity (e.g. employers, critical and emerging industries, geographic makeup, demographics).