May 10, 1989

FACTS:


You are a member of the Judiciary. You recentiy received an
invitation to become a member of the board of advisors of a
hospital (Hospital) which treats patients with chemical and alcohol
dependencies. Patients are voluntarily referred to the Hospital,
and their fees are funded primarily through third-party insurers.
Although the Hospital will receive no direct patient referrals from
the courts, Hospital staff may occasionally be called upon to
prepare patient reports for submission to a probation officer in
connection with a court proceeding involving a patient.

The Hospital is a corporation headed by a president, corporate
officers, and a six-member paid executive committee which serves
as the corporate board of directors. The Hospital is also
organizing a fourteen-member board of advisors comprised of
professionals and citizens from community-based organizations. The
board of advisors will be unpaid and will meet three or four times
annually to provide suggestions and general advice to the Hospital
and its board of directors.


QUESTION:


Does G.L. c. 268A permit you to accept membership on the
Hospital board of advisors?


ANSWER:


Yes, subject to certain conditions set forth below.


DISCUSSION:


As, a member of the Judiciary, you are a state employee for the
purposes of G.L. c. 268A. See, G.L c. 268A, s.1(q). Upon
acceptance of membership on the Hospital board of advisors, you
will be subject to certain limitations in both your judicial and
board of advisor capacities.


1. Limitations on Your Hospital Activities


Section 4(c) places restrictions on the outside activities of
state employees. Specifically, s.4(c) prohibits a state employee
from acting as the agent or attorney for a non-state parry in
connection with any application, proceeding, determination or other
particular matter[1] in which any state agency is either has a
direct and substantial interest. For example, if the Hospital has
a licensure application pending before the state Department of
Public Health, you may not act as the Hospital's agent or
spokesperson in connection with that application. You would not be
regarded as the Hospital's agent by participating in in-house
discussions as a member of the board of advisors. See, EC-COI-83-
145; 82-45
. On the other band, you must avoid appearing before
state officials or agencies on behalf of the Hospital and also
avoid signing, in your representative capacity, any documents or
correspondence directed to state agencies or officials.


2. Limitations on Your Judicial Activities


Initially, the Commission advises you that you will
be prohibited by G.L. c. 268A, s.6 from officially participating
in matters in which the Hospital has a financial interest. The
abstention requirements of s.6 will come into play whenever a state
employee is called upon to participate in a matter which affects
the financial interest of a "business organization in which he is
serving as officer, director, trustee, partner or employee...". As
a member of tbe Hospital board of advisors, your relationship with
the Hospital is not that of an officer, director, trustee, partner
or employee. Cf., EC-COI-82-145 (hospital corporator is not
officer, director or trustee for the purposes of s.6).

Page 244

The Commission has previously stated that it will not be bound
by the title of the position one holds within a business
organization, but rather will examine the substance of the
position. For example, in EC-COI-87-10, the Commission concluded
that a savings bank corporator exercised management functions
sufficiently similar to a director so as to be regarded as a
director for G.L. c. 268A purposes. See, also, EC-COI-80-43
(relationship between attorneys will be treated as partnership
where attorneys share ownership assets and liabilities, even absent
a formal partnership agreement). Based on the information you and
the Hospital have provided, however, we conclude that your board
of advisor responsibilities are not comparable to those of a
corporate officer or director. This conclusion is based on the fact
that those corporate officer and director functions are already
performed by other individuals, and on the Hospital's intent to
establish the board of advisors as a community-based sounding
board, rather than as a decision-making management board.

Should a matter come before you in which the Hospital has an
interest, the provisions of G.L. c. 268A,s. 23 will apply.[2] Under
s.23, a state employee may not use his official position to secure
unwarranted privileges or exemptions of substantial value for
others, and must also avoid creating the reasonable appearance of
undue favoritism towards others due to the existence of private
relationships. To dispel any appearance of undue favoritism
towards the Hospital, you must publicly disclose to your appointing
authority the relevant facts concernnin1 your official and private
dealings with the Hospital.

---------------

[1] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organinations, powers, duties, finances and
property. G.L. c. 268A, s.1(k).

[2] In addition to G.L.c. 268A, you are also subject to the
restrictions of the Canons of Judicial Conduct, Supreme Judicial
Court Rule 3:09. You may pursue any questions concerning the
application of the Canons with the Committee on Judicial Ethics,
pursuant to Rule 3:11.

[3] For the purposes of G.L. c. 268A your appointing authority is
the Chief Justice of the Supreme Judicial Court. See, EC-COI-83-
116
.

End Of Decision