April 11, 1995

FACTS:



The Mayor's Special Commission on Health Care ("Commission")
was organized in June 1994. Its purpose is to advise the Mayor of
the City of Boston ("City") regarding the development of a proposal
to merge Boston City Hospital and Boston University Medical Center
Hospital. The Commission is structured to obtain input from
interested constituencies, including the affected hospitals,
organized labor, community health centers, and the business
community, among others. As outlined in the Mayor's June 6, 1994
press release, the Commission's scope of work is as follows:

(1) Work to create a model for a new and streamlined
organization for the Department of Health and Hospitals;

(2) Review Boston's health care delivery systems and
make recommendations to the Mayor to create a closer
affiliation or consolidation of services between the
Department of Health and Hospitals and the Boston
University Medical Center Hospital;

(3) Monitor and assist in the implementation of approved
recommendations in a timely fashion;

(4) Make recommendations to the Mayor which would
consolidate and make more efficient the management of
both health care institutions;

(5) Advise the Mayor on the future financial
relationship between the City of Boston, the

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Department of Health and Hospitals and Boston University
Medical Center Hospital;

(6) Draft any local or state legislation necessary to
accomplish the recommendations accepted by the Mayor.

During February 1995, the Commission held three public
hearings "designed to provide a voice in the merger to anyone who
is concerned."[1] The public hearings were "part of an ongoing
process that has sought to solicit input from a wide variety of
groups and individuals." The Commission has also held more than 15
community meetings and forums throughout the City.

The Commission is headed by Patricia McGovern, former Chair of
the Massachusetts Senate Ways and Means Committee. The other
members of the Commission are: Robert Ciolek, Chief Operating
Officer of the City of Boston; Thomas Trailor, Acting Commissioner
of the Department of Health and Hospitals;[2] Elaine Ullian, Chief
Executive Officer of Boston University Medical Center Hospital;
John Cradcock, Director of the East Boston Neighborhood Health
Center; Dr. Rev. Roy Hammond, Pastor of the Bethel A.M.E. Church;
Jeanne Blake, former medical reporter for WBZ-TV, author and
businesswoman; Celia Woislo, Executive Director of Local 285,
Service Employees International Union (SEIU); Dr. Judy Ann Bigby,
Assistant Professor of Medicine at Harvard Medical School; Dr.
Deborah Scott, M.D., private practitioner; Dr. Alyce Adams, Harvard St.
Health Center; and Dr. Hortensia Amaro, Boston University
School of Public Health.

The Commission was created in the Mayor's discretion. There
is no legislation, statute, ordinance, or executive order providing
authority to create this body. The Commission is expected to meet
and complete its recommendations to the Mayor by May 1, 1995.

According to the City's Corporation Counsel, the Commission's
recommendations could be quite detailed (e.g., which hospital
buildings or departments to retain, which debt to assume or not,
etc.). Its work product is expected to include proposed draft
legislation to implement these recommendations. Further, although
the Commission lacks authority to bind the City, its
recommendations are likely to embody those concepts on which the
interested parties have reached consensus. It is the Mayor,
however, who will decide whether to adopt the recommendations and
present them to the City Council and the State Legislature for
consideration.


QUESTION:



Are the non-City employee members of the Commission municipal
employees within the meaning of G.L. c. 268A, s.1(g)?



ANSWER:



No.


DISCUSSION:



In relevant part, the conflict of interest law defines
"municipal employee" as 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. G.L.
c. 268A, s.1(g). A "municipal agency" is any department or office
of a city or town government and any council, division, board,
bureau, commission, institution, tribunal or other instrumentality
thereof or thereunder. G.L. c. 268A, s.1(f). Thus, the question
is whether Commission members are persons "performing services for"
a "municipal agency".

We have previously weighed the following four factors in
determining what constitutes "performing services" for a municipal
agency:

(1) the impetus for creation of the position (whether by
statute, rule, regulation or otherwise);

(2) the degree of formality associated with the job and
its procedures:

(3) whether the holder of the position will perform
functions or tasks ordinarily expected of employees, or
will he be expected to represent outside private
viewpoints;

(4) the formality of the person's work product, if any.
See EC-COI-87-28; 86-5; 82-81.

In general, where an advisory council has been created by
statute, we have found that it is a government agency and its
members are government employees. See, e.g., EC-COI-86-4; 82-157;
82-139
. The Commission, on the other hand, is created in the
Mayor's discretion, a factor previously found to weigh against a
finding that the body so created is a government agency. See EC-
COI-93-22
(council created in the Governor's discretion is advisory
in nature.). However, because no one factor is

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dispositive, we examine the Commission in light of the remaining
three factors. EC-COI-86-4.

With regard to the degree of formality associated with the
job, we have typically examined the body's organizational formality
(often dictated by statute) and the formality of its work product.
For example, in EC-COI-86-5, we found that an advisory committee to
the Office of Real Property within the Division of Capital Planning
and Operations was not a state agency in part because membership on
the committee "[could] be fluid and [was] generally open." By
comparison, we found that school advisory councils whose members
are selected according to a statutory formula, whose meetings are
subject to the Open Meeting Laws, and who must observe certain
statutorily-mandated records retention procedure are municipal
agencies. EC-COI-93-21.

In examining the Commission, we note that, except for the
Chairperson and the two City employee members, Commission
membership appears to be from a pool of citizens, chosen by the
Mayor in his discretion, who represent various constituencies
potentially affected by the merger.[3] There is no set procedure
for their selection, or for the preparation and retention of the
Commission's work product. The Commission is of limited duration.
EC-COI-79-12. Any formality in its procedures is imposed by the
Commission members (not by the Mayor or by statute), apparently for
the purpose of permitting the Commission to operate in an efficient
and timely manner. See EC-COI-86-5.

We also conclude that the Commission does not perform tasks
ordinarily expected of government employees, nor is its work
product that ordinarily or uniquely expected of government
employees. Crucial to our analysis in this area is whether the
entity performs an advisory function (i.e., by providing outside
viewpoints of use to government) or whether it performs an
essentially governmental function by assisting in the work product of a government agency. Recently, for example, we concluded that
a Council organized principally to provide the Governor with
outside viewpoints concerning the Massachusetts economy and the
status of industry in the Commonwealth is not a governmental body.
EC-COI-93-22. We noted that, through the Council, "the Governor
will have access to opinions and expertise which is not otherwise
available within the executive branch." On the other hand, we have
said that an entity is a governmental agency where it assists
government in carrying out a mandated function. See, e.g., EC-COI-
94-10; 86-4
(finding state agency status where permanent
committee's principal function is to assist in the drafting of
regulations, a task ordinarily engaged in by public employees.).

The tasks performed by the non-municipal employee members of
the Commission (other than the Chairperson) generally are: (1)
articulating a merger structure which addresses the private
interests they represent, (2) holding public hearings and meetings
to solicit outside and community viewpoints, and (3) assisting in
drafting proposed legislation to implement the Commission's
recommendation. Clearly, these functions are not "essentially
governmental." The mere fact that these tasks are performed
collectively by members of a special commission does not transform
the nature of the tasks to governmental functions. In the course
of their Commission work, it is the private interests of the
non-municipal employees, their employers and their constituencies that
are being addressed. We would not say, for example, that an
individual's expression of these very same interests in the context
of a business meeting is the performance of a governmental
function. Furthermore, the public hearings, community meetings
and forums conducted by the Commission elicit the type of outside
viewpoints which we have traditionally found to advise and inform
government in a manner not generally available through its
employees. See, e.g., EC-COI-93-22. Moreover, the drafting of
proposed legislation (as contemplated here) is not, in our view,
"ordinarily or uniquely expected of government employees." Id.
Thus, none of the tasks performed by the non-municipal employee
members of the Commission are essentially governmental in nature.

We note that the Commission's Chairperson plays a slightly
different role as she is neither a municipal employee nor a
representative of an interested party or constituent group.
However, the Chairperson, like the other Commission members, lacks
authority to bind the City. Her role, to the extent that it
differs from the roles played by the other non-municipal employees,
appears to be that of a facilitator and a spokesperson for the
Commission. These functions, however, are not essentially
governmental in nature. Most importantly, the Chairperson does not
appear to be discharging a duty imposed on any government official
or agency. Compare EC-COI-94-10.

In summary, we conclude that where, as here, the Commission is
formed in the Mayor's discretion, is composed of members of
constituencies likely to be affected by the proposed merger, and is
designed to surface the private interests involved and to provide
the Mayor with non-binding outside viewpoints not otherwise readily
available to him, the Commission is not a "municipal agency" and
its members are not

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"municipal employees" within the meaning of the conflict law.


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

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

[1] Comments of the Commission Chairperson, press release,
Office of the Mayor, February 3, 1995.

[2] Mr. Trailor replaced former Commissioner of Health and
Hospital Lawrence Dwyer, who resigned on March 30, 1995.

[3] Public employee membership on an advisory group is not
dispositive of its status as a government agency. See, e.g., EC-
COI-93-22.


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End Of Decision