Opinion  EC-COI-82-143

Date:	10/19/1982
Organization:	State Ethics Commission

A member of the General Court will be subject to several restrictions if he serves as a county hospital trustee. He may not participate in special legislation related to the hospital's financial interests; he may not participate as a hospital trustee in any particular matter in which either he or his real estate business has a financial interest; he may not have a financial interest in a contract made by the county hospital, and he may not use his official position as a member of the General Court to secure unwarranted privileges or exemptions for the hospital.

Facts

You are a realtor and a state representative. Earlier in the current legislative session, you voted on legislation which appropriated money for a county hospital in your district and increased the number of hospital trustees from three to seven. The county advisory board subsequently elected you to one of the new trusteeships set aside for a member of the business community. The post is part-time and unpaid.

Question

May you serve as a hospital trustee without violating the conflict of interest law, G.L. c. 268A?

Answer

Yes, although other laws may restrict you from doing so. Moreover, c. 268A will impose certain restrictions on your conduct as a legislator and trustee if you become a trustee.

Discussion

       As a state representative, you are a state employee as that term is defined in c. 268A, s.1(q), and subject to the conflict of interest law. Section 4 of c. 268A prohibits a member of the General Court from appearing personally, for compensation other than his legislative salary, before a state agency unless certain conditions are met. However, since you would receive no compensation as a trustee, any appearances you might make as a trustee before a state agency would not violate s.4.

       Section 6 of c. 268A states: ..any state employee who participates as such employee in a particular matter [1] in which to his knowledge he...[or] a business organization in which he is serving as . . . trustee . . . has a financial interest, shall be punished by a fine .. . or by imprisonment...The county hospital for which you have been elected trustee is a county agency, created pursuant to G.L. c. 111, s.82 et seq. and is a business organization as that term is used in c. 268A.[2] Thus, as a legislator (a state employee) you could not, during your term as a hospital trustee, participate in any particular matter in which the hospital had a financial interest. Because general legislation is excluded from the definition of a "particular matter," you are prohibited from participating [3] in special legislation which concerns the hospital's financial interests (such as a budget line item), as well as the other items listed in the definition (see footnote 1). Participation is interpreted to cover not only voting on a matter, but also drafting,[4] proposing or  debating a particular matter, or being counted as part of a quorum during consideration of the matter.[5] Moreover, if a legislator personally and substantially interjects himself into the making of a decision by another agency (e.g. by recommending a course of action) he may well be found to have participated in that decision even if he had no responsibility for doing so.[6] Should a specific situation arise in which you are uncertain as to the limits on your conduct, you should consult the Commission for further advice. If you accept the trusteeship, you will also become a special county employee[7]] of NBC County, since you will be unpaid and holding membership in a county agency.[8] Therefore, you will have to observe the restrictions applicable to county employees (as well as those applicable to state employees), as described below.

       Section 11 will prohibit you from acting as agent for, or receiving compensation from, anyone other than

1.  the commonwealth
2. a state agency
3. ABC County, or
4. a[n] ABC County agency

       in relation to any particular matters in which one of those entities is a party, or has a direct and substantial interest, if any of the following apply: a. if you participated in the particular matter as a legislator or a hospital trustee; b. if the particular matter is or within one year has been a subject of your official responsibility[9]; or c. if the particular matter is pending in the General Court or the hospital board of trustees.[10] Thus, for example, you could not act as real estate agent with respect to any particular matter of direct and substantial interest to ABC County in which you participated or had official responsibility for as either a legislator or hospital trustee, e.g. in the disposition of state property or county hospital property. Again, if a specific situation arises and you wish further guidance, you should contact the Commission.

       Under s.13, you may not participate as a county hospital trustee in any particular matter in which any of the following entities has a financial interest: - you - your immediate family or partner - a business organization[11] in which you serve as officer, director, trustee, partner or employee - any person or organization with whom you are negotiating or have any arrangement concerning prospective employment. If your duties as trustee would otherwise require you to participate in such a particular matter, you must advise the ABC County Advisory Board and the Ethics Commission of the nature and circumstances of the particular matter and make full disclosure of such financial interest. The Advisory Board will then have the option of either assigning the matter to another employee, assuming responsibility for the matter, or making a written determination (filed with the Ethics Commission) that the financial interest at stake is not sa substantial that it is likely to affect the integrity of your services as a trustee, in which last case you may participate. Inasmuch as you are a businessman in ABC County, you should be aware that s.14 prohibits you from having a direct or indirect financial interest in any contract involving the ABC County hospital. If it appears you might obtain such a financial interest, you should contact the Commission for further advice.

       Section 23(d) prohibits you from using or attempting to use your official position (either as legislator or trustee) to secure unwarranted privileges or exemptions for yourself or others. You should keep this in mind if called upon as a trustee to deal with state agencies on the hospital's behalf; because you are a legislator and serve on the DEF Committee, you should be careful to avoid any implication or representation that you will use your leverage with respect to agency budgets or other requests to obtain unwarranted actions for the hospital's behalf.[12]

DATE AUTHORIZED: October 19, 1982

End Of Decision

[1] For the purposes of G.L. c. 268A, "particular matter" is defined as 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. G.L. c. 268A, s.1(k).

[2] See EC-COI-81-119, 82-9.

[3] "Participate" means to participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise. G.L. c. 268A, s.1(j).

[4] See EC-COI-81-34, 81-69.

[5] See Graham v. McGrail, 370 Mass. 133, 138 (1976). (In this case, the Supreme Judicial Court stated that the wise course is to leave the room during discussion or action on a particular matter).

[6] See In the Matter of James J. Craven, Jr., Commission Adjudicatory Docket No. 110 (June 13, 1980), aff'd sub nom. Craven v. Vorenberg, Suffolk Superior Court Civil Action No. 43269 (further appeal pending). (State legislator participated in funding decision of Executive Office of Communities and Development in which several members of his immediate family had a financial interest),

[7] G.L. c. 268A, s.1(d) and (m).

[8] G.L. c. 268A, s.1(c).

[9] "Official responsibility" means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and whether personal or through subordinates, to approve, disapprove or otherwise direct agency action. G.L. c. 268A, s.1(i).

[10] Clause (c) does not apply to your actions as trustee if you serve as trustee no more than 60 days during any period of 365 consecutive days. G.L. c. 268A, s.11, paragraph 5.

[11] You should be aware that "business organization" includes both profit and non-profit organizations, municipal and county governments and agencies, and other governmental entities.

[12] The Commission is only empowered to issue advisory opinions interpreting and applying c. 268A and 268B. There may well be other statutes or constitutional provisions which are germane to your appointment as a trustee, and "his opinion should in no way be construed as a ruling over your course of conduct under those provisions. You should seek an opinion from the Attorney General as to whether your acceptance of the trusteeship is prohibited or limited under any other laws.