Opinion  EC-COI-84-108

Date:	09/25/1984
Organization:	State Ethics Commission

A member of the General Court may serve on a medical malpractice tribunal, provided he or she is not compensated for services on the tribunal.

Facts

You are a member of the General Court and an attorney.  You would like to serve on a medical malpractice tribunal established pursuant to G.L. c. 231, §60B.  Each tribunal consists of three members; a single justice of the superior court, a physician, and an attorney.   Both the physician and the attorney are selected by the single justice from lists submitted by the Massachusetts Medical Society and the Massachusetts Bar Association respectively.  The physician and the attorney are compensated for their services in the amount of $50.00.  The purpose of the tribunal is to review all medical malpractice claims prior to trial and to determine whether or not they raise legitimate questions of liability.  If the tribunal makes a finding for the defendant, the plaintiff may not proceed to trial unless he or she files a bond sufficient to cover the defendant’s costs and attorneys’ fees should the plaintiff not prevail.

Question

Does G.L. c. 268A permit a member of the General Court to serve on a medical malpractice tribunal?

Answer

Yes, provided he is not compensated for his services on the tribunal.

Discussion

As a member of the General Court you are a state employee and therefore are subject to the provisions of the conflict of interest law, G.L. c. 268A.  A threshold issue is whether, as a member of a medical malpractice tribunal, you would be performing services for a state agency.  A state agency is defined in §1(p) as “any department of state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department… “ [emphasis added].  In its previous determinations concerning the public status of an entity for purposes of G.L. c. 268A, the Commission has focused on the following four factors;

1.  the impetus for the entity’s creation (whether by statute, rule, regulation or otherwise);

2.  the entity’s performance of some essentially governmental function;

3.  whether the entity receives and/or expends public funds; and

4.  the extent of supervision and control exercised by government officials or agencies over the entity.

The medical malpractice tribunals are established by statute, G.L. c. 231, §60B.  They perform as a pretrial screening mechanism within the court system, weeding out malpractice claims which lack merit.  They have, in fact, been referred to as “adjunct[s] of the state superior court.” Feinstein v. Massachusetts General Hospital, 643 F.2d 880, 888 (1st Cir. 1981).  According to §60B the tribunals receive, subject to appropriation, monies from the state treasury sufficient to compensate non-judicial tribunal members for their services.  Lastly, they function under the supervision of the judiciary.  Selection of the attorney and physician members is done by a superior court justice, and complaints relative to the decision of the tribunal are heard by the court.  Based on the foregoing, the Commission concludes that as a member of a medical malpractice tribunal you would be performing services for a state agency.^[1]

The section of the statute relevant to the questions you have raised is §7.  It prohibits a state employee from having a financial interest, directly or indirectly, in a contract made by a state agency, in which the commonwealth or a state agency is an interested party.  As a compensated member of a tribunal, you would have a direct financial interest in an employment arrangement with a state agency.  Because you are a state employee by virtue of your membership in the General Court, this direct financial interest would be prohibited by §7.  Section 7 contains several exemptions to the prohibition, but none is applicable to your situation. ^[2] If, however, you were to serve on the tribunal and refuse compensation for your services, you would have no financial interest in a contract made by a state agency.  In that case there would be no violation of §7.

^[1] The status of tribunal members as performing services within the judicial system is analogous to that of one who is hired to assist a special master appointed by the court in a piece of major litigation.  See EC-COI-84-94.  (This citation refers to a previous Commission advisory opinion including the year it was issued and its identifying number.  This and all other advisory opinions are available for public inspection, with identifying information deleted, at the Commission offices).

^[2] G.L. c. 268A, §7(c) exempts

“… the interest of a member of the general court in a contract made by an agency other than the general court or either branch thereof, if his direct and indirect interests and those of his immediate family in the corporation or other commercial entity with which the contract is made do not in the aggregate amount to en percent of the total proprietary interest therein, and the contract is made through competitive bidding and he files with the state ethics commission a statement making full disclosure of his interest and the interests of his immediate family…”

This exemption does not cover personal service arrangements such as the one you have described.  Additionally, your propriety interest exceeds ten percent.