Opinion  EC-COI-82-145

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

A member of the General Court may serve simultaneously as the corporator of a private hospital, provided that she does not vote as a legislator on any special legislation in which the hospital has a financial interest, and that she limits her activities on behalf of the hospital in its dealings with state agencies to those specifically permitted to legislators by §4.

Facts

You are a State Senator and have recently been invited to serve as one of the two hundred corporators of ABC Hospital ABC. The corporators, who meet annually to elect the ABC board of trustees, represent the interests of ABC to the communities within the ABC service area and also serve as community liaisons to ABC.

Question

Does G.L. c. 268A permit you to serve as both a Senator and a corporator?

Answer

Yes, although you will be subject to certain limitations.

Discussion

       As a member of the General Court, you are a state employee for the purposes of G.L. c. 268A; the question which you pose is addressed by two sections of that statute.

1.  Limitations on Legislative Activities

   Under G.L. c. 268A, s.23(e), you may not, by your conduct, give reasonable basis for the impression that any person can improperly influence or unduly enjoy your favor in the performance of your official duties; or that you are unduly affected by the kinship, rank, position or influence of any party or person. A major purpose s.23(e) is to prohibit an employee from engaging in conduct which will raise questions over the credibility and impartiality or her work as a public employee, even where no actual, discernible conflict of interest is present. While nothing in G.L. c. 268A, or more particularly in s.23(e), would outright prohibit your service in both offices, you should refrain from voting on or otherwise participating [1] as a legislator in any special legislation in which ABC has a financial interest.[2] Additionally, you should be aware that s.23(d) prohibits you from using your legislative position to secure unwarranted privileges or benefits for ABC.

2. Limitations on ABC Activities

   Section 4 places restrictions on your activities in representing interests other than those of the state where the state is a party or has a direct and substantial interest. The fifth paragraph of that section exempts members of the General Court from sections 4(a) and 4(c) but prohibits appearance by a member of the General Court for (any compensation other than her legislative salary before any state agency unless, 1) the particular matter is ministerial (e.g., filing or amendment of: tax returns, applications for licenses, incorporation papers); 2) the appearance is before a court of the commonwealth; or 3) the appearance is in a quasi-judicial proceeding. A quasi-judicial proceeding is one where the action of the state agency is adjudicatory in nature, that action is appealable to the courts, and both sides are entitled to representation by counsel other than the Attorney General or counsel for the state agency conducting the proceeding. G.L. c. 268A, s.4, paragraph 6. While it is not clear whether you expect to represent, for compensation, ABC's interests in any proceeding in which the state is a party or has a direct and substantial interest, you should be guided by the provisions outlined above should such a situation arise.

DATE AUTHORIZED: October 19, 1982

End Of Decision  

[1] "Participate," 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).

[2] As a corporator, you would not be an officer, director or trustee of a business organization for the purposes of G.L. c. 268A, s.6. However, the guidelines under s.23(e) closely parallel the limitations of s.6.