§ 2 — Creation; directors, officers and employees; termination; trade secrets

Section 2. (a) There is hereby created a body politic and corporate to be known as the Massachusetts Development Finance Agency. The Agency is hereby constituted a public instrumentality and the exercise by the Agency of the powers conferred by this chapter shall be deemed to be the performance of an essential governmental function.The Agency is hereby placed in the executive office of administration and finance but shall not be subject to the supervision or control of said office or of any board, bureau, department or other agency of the commonwealth except as specifically provided in this chapter.[ Subsection (b) effective until February 18, 2025. For text effective February 18, 2025, see below.](b) The agency shall be governed and its corporate powers exercised by a board of directors consisting of the secretary of administration and finance and the secretary of economic development, or their respective designees, and 9 members to be appointed by the governor, 1 of whom shall be experienced in real estate development, 1 of whom shall be experienced in commercial or industrial credit, 1 of whom shall be experienced in mortgage lending, 1 of whom shall be experienced in banking or investment banking, 1 of whom shall be experienced in planning and the redevelopment of environmentally contaminated lands, 1 of whom shall be experienced in health care facility financing, and 1 of whom shall be a representative of organized labor. The secretary of economic development shall serve as chairperson of the board. Each member appointed by the governor shall serve for a term of three years; provided, however, that of the initial appointed members, four shall serve a term of two years and five for three years. Any person appointed to fill a vacancy in the office of a member of the board shall be appointed in a like manner and shall serve for only the unexpired term of such member. Any member shall be eligible for reappointment. Any member may be removed from his appointment by the governor for cause. The governor shall from time to time designate a member or members of the board as its chairperson or co-chairperson as applicable.[ Subsection (b) as amended by 2024, 238, Sec. 53 effective February 18, 2025. See 2024, 238, Sec. 331. For text effective until February 18, 2025, see above.](b) The agency shall be governed and its corporate powers exercised by a board of directors consisting of the secretary of administration and finance or a designee; the secretary of economic development or a designee, who shall serve as chair; and 13 members to be appointed by the governor, 1 of whom shall be experienced in real estate development, 1 of whom shall be experienced in commercial or industrial credit, 1 of whom shall be experienced in mortgage lending, 1 of whom shall be experienced in banking or investment banking, 1 of whom shall be experienced in planning and the redevelopment of environmentally contaminated lands, 1 of whom shall be a representative of organized labor, 1 of whom shall be experienced in community economic development and employed by a CDC or a representative of the Massachusetts Association of Community Development Corporations, 1 of whom shall be a representative of a community bank in the commonwealth, 1 of whom shall be a representative of an organization of small businesses or manufacturing companies in the commonwealth, 1 of whom shall be experienced in small business financing or restructuring and 1 of whom shall be a small business owner. Each member appointed by the governor shall serve for a term of 3 years; provided, however, that of the initial appointed members, 4 shall serve terms of 2 years and 5 shall serve terms of 3 years. A person appointed to fill a vacancy in the office of a member of the board shall be appointed in a like manner and shall serve for only the unexpired term of such member. A member shall be eligible for reappointment. A member may be removed from their appointment by the governor for cause.[ First paragraph of subsection (c) effective until February 18, 2025. For text effective February 18, 2025, see below.](c) Six of the directors shall constitute a quorum and the affirmative vote of a majority of directors present at a duly called meeting where a quorum is present shall be necessary for any action to be taken by the board. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if all of the directors consent in writing to such action and such written consents are filed with the records of the minutes of the meetings of the board. Such consents shall be treated for all purposes as a vote at a meeting.[ First paragraph of subsection (c) as amended by 2024, 238, Sec. 54 effective February 18, 2025. See 2024, 238, Sec. 331. For text effective until February 18, 2025, see above.](c) Eight of the directors shall constitute a quorum and the affirmative vote of a majority of directors present at a duly called meeting where a quorum is present shall be necessary for any action to be taken by the board. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if all of the directors consent in writing to such action and such written consents are filed with the records of the minutes of the meetings of the board. Such consents shall be treated for all purposes as a vote at a meeting.The members of the board shall serve without compensation, but each member shall be entitled to reimbursement for his actual and necessary expenses incurred in the performance of his official duties.(d) The provisions of chapter 268A shall apply to all ex-officio directors or their designees and employees of the Agency. The provisions of chapter 268A shall apply to all other directors of the Agency, except that the Agency may purchase from, sell to, borrow from, loan to, contract with or otherwise deal with any person in which any director of the Agency is in any way interested or involved; provided, however, that such interest or involvement is disclosed in advance to the members of the board and recorded in the minutes of the board; and provided further, that no director having such an interest or involvement may participate in any decision of the board relating to such person. Employment by the commonwealth or service in any Agency thereof shall not be deemed to be such an interest or involvement.(e) The executive director of the Agency shall be appointed and his salary established by the board. The executive director shall be the chief executive, administrative and operational officer of the Agency and shall direct and supervise administrative affairs and the general management of the corporation. The executive director may, subject to the general supervision of the board, employ other employees, consultants, agents, including legal counsel, and advisors, and shall attend meetings of the board.(f) Neither the Agency nor any of its officers, agents, employees, consultants or advisors shall be subject to the provisions of sections 9A, 45, 46 and 52 of chapter 30, or to chapter 31, or to chapter 200 of the acts of 1976.(g) The board annually may elect one of its members as vice-chairperson, shall elect a secretary and a treasurer, and may elect or appoint other officers as it may deem necessary, none of whom, other than the vice-chairperson, are required to be members of the board. The secretary shall keep a record of the proceedings of the board and shall be custodian of all books, documents, and papers filed by the board and of its minute book and seal. The secretary shall cause copies to be made of all minutes and other records and documents of the Agency and shall certify that such copies are true copies, and all persons dealing with the Agency may rely upon such certification. The treasurer shall be the chief financial and accounting officer of the Agency and shall be in charge of its funds, books of account and accounting records.(h) All officers and employees of the Agency having access to its cash or negotiable securities shall give bond to the Agency at its expense in such amounts and with such surety as the board may prescribe. The persons required to give bond may be included in one or more blanket or scheduled bonds.(i) Board members and officers who are not compensated employees of the Agency shall not be liable to the commonwealth, to the Agency or to any other person as a result of their activities, whether ministerial or discretionary, as such board members or officers except for willful dishonesty or intentional violations of law. Neither members of the Agency nor any person executing bonds or policies of insurance shall be liable personally thereon or be subject to any personal liability or accountability by reason of the issuance thereof. The board of directors may purchase liability insurance for board members, officers and employees and may indemnify said persons against claims of others.(j) The Agency shall be the successor to the Massachusetts Industrial Finance Agency established under the provisions of chapter 23A and the government land bank established under the provisions of chapter 212 of the acts of 1975. All real estate, property rights, personal property, funds, moneys, revenues, receipts, contract rights or other intangible assets, equipment or other ownership, possessory, or security interests of any kind whatsoever, or any portion thereof held by either said Massachusetts Industrial Finance Agency and said government land bank, including, without limitation, funds previously appropriated by the commonwealth for either said Massachusetts Industrial Finance Agency shall be deemed for record notice and otherwise, as applicable, to belong to the Agency on the same basis and with the same interest as previously held by Massachusetts government land bank or the Massachusetts Industrial Finance Agency, as applicable. Any and all obligations and liabilities of said Massachusetts government land bank and said Massachusetts Industrial Finance Agency shall become obligations and liabilities of the Agency. Any resolution taken by or commitment made by either the Massachusetts government land bank or the Massachusetts Industrial Finance Agency with respect to any financing, including loans, bond issuances, guarantees and insurance and any other action made by either Massachusetts government land bank or the Massachusetts Industrial Finance Agency shall be a resolution, commitment, or action of the Agency.(k) The Massachusetts Development Finance Agency shall continue as long as it shall have bonds or insurance or guarantee commitments outstanding and until its existence is terminated by law. Upon the termination of the existence of the Agency, all right, title and interest in and to all of its assets and all of its obligations, duties, covenants, agreements and obligations shall vest in and be possessed, performed and assumed by the commonwealth as specifically provided in sections 36 to 40, inclusive.[ Subsection (l) effective until February 18, 2025. For text effective February 18, 2025, see below.](l) Any documentary materials or data whatsoever made or received by any member or employee of the Agency and consisting of, or to the extent that such materials or data consist of, trade secrets or commercial or financial information regarding the operation of any business conducted by an applicant for any form of assistance which the Agency is empowered to render or regarding the competitive position of such applicant in a particular field of endeavor, shall not be deemed public records of the Agency and specifically shall not be subject to the provisions of section 10 of chapter 66. Any discussion or consideration of such trade secrets or commercial or financial information may be held by the board in executive sessions closed to the public notwithstanding the provisions of section 11A1/2 of chapter 30A, but the purpose of any such executive session shall be set forth in the official minutes of the Agency and no business which is not directly related to such purpose shall be transacted nor shall any vote be taken during such executive session.[ Subsection (l) as amended by 2024, 238, Sec. 55 effective February 18, 2025. See 2024, 238, Sec. 331. For text effective until February 18, 2025, see above.](l) The agency shall be the successor to the Massachusetts Growth Capital Corporation, previously established in section 2 of chapter 40W. All real estate, property rights, personal property, funds, moneys, revenues, receipts, contract rights and other intangible assets, equipment and any other ownership, possessory or security interests of any kind whatsoever, or any portion thereof, held by the Massachusetts Growth Capital Corporation including, but not limited to, funds previously appropriated by the commonwealth for the Massachusetts Growth Capital Corporation, shall be deemed for record notice and otherwise, as applicable, to belong to the agency on the same basis and with the same interest as previously held by the Massachusetts Growth Capital Corporation. All obligations and liabilities of said Massachusetts Growth Capital Corporation shall become obligations and liabilities of the Agency. Any resolution taken by or commitment made by the Massachusetts Growth Capital Corporation with respect to any financing, including loans, bond issuances, guarantees and insurance and any other action made by the Massachusetts Growth Capital Corporation shall be a resolution, commitment or action of the agency.[ Subsections (m) and (n) added by 2024, 238, Sec. 55 effective February 18, 2025. See 2024, 238, Sec. 331.](m) The Massachusetts Growth Capital Corporation shall continue as long as it shall have bonds or insurance or guarantee commitments outstanding and until its existence is terminated by law. Upon the termination of the existence of the agency, all right, title and interest in and to all of its assets and all of its obligations, duties, covenants and agreements shall vest in and be possessed, performed and assumed by the commonwealth.(n) Any documentary materials or data made or received by any member or employee of the Agency and consisting of, or to the extent that such materials or data consist of, trade secrets or commercial or financial information regarding the operation of any business conducted by an applicant for any form of assistance that the agency is authorized to render or regarding the competitive position of such applicant in a particular field of endeavor, shall not be deemed public records of the agency and shall not be subject to section 10 of chapter 66. Any discussion or consideration of such trade secrets or commercial or financial information may be held by the board in executive sessions but the purpose of any such executive session shall be set forth in the official minutes of the agency, and no business that is not directly related to such purpose shall be transacted nor shall any vote be taken during such executive session.