Opinion  EC-COI-85-2

Date:	01/08/1985
Organization:	State Ethics Commission

A member of a state board of registration may also serve as a member of the board of directors of a regional organization providing educational services to individuals subject to the board's jurisdiction. However, the member may neither represent the organization in any state matter, nor officially participate in matters affecting the organization's financial interest.

Consent

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

Facts

You are a member of the Board of Registration in Nursing (Board). Pursuant to G.L. c. 13, § 13, you were appointed by the governor to the Board to serve for six years, which term of  office will expire in March, 1986. As a Board member, you receive five hundred dollars a year as compensation, as well as the necessary traveling expenses you actually incur in attending the meetings of the Board. G.L. c. 13, § 15. The Board is statutorily required to hold three regular meetings a year, G.L. c. 13, § 14, but in fact holds a meeting once a month. Pursuant to G.L. c. 112, § 74 et. seq., the board holds examinations for the registration of nurses and the licensing of practical nurses, investigates all complaints of violations within its area of authority, and makes such rules and regulations that are consistent with law and relevant to its procedure as it deems expedient.

You were also recently elected to a one-year term as Director-at-Large on the board of the New England Organization for Nursing (NEON). NEON is one of the nation's five regional professional organizations whose purpose is to bridge the gap between nursing service and nursing education. NEON was established in 1983 and is made up of member agencies represented by leaders in nursing education and nursing service, from nursing education degree programs, hospital nursing services, home health agencies, visiting nurse associations and other community health agencies. NEON's involvement ranges from sponsoring regional conferences on selected topics to publishing a regular newsletter to conducting model projects demonstrating collaborations between nursing education and practice to participating in the symposia of other nursing groups.

You have also been suggested as a possible nominee for Director on the board of the Massachusetts Society  for Nursing Service Administrators (MSNSA) . MSNSA is a private, voluntary professional association of individuals in administrative positions in hospital nursing service. Like NEON, MSNSA pursues its educational purposes through identifying health care issues and providing a platform for speakers and a medium for the exchange of ideas.

Question

Does G.L. c. 268A permit you to serve simultaneously as a member of the Board and as director-at-large on NEON's board and/or director on MSNSA's board?

Answer

Yes.^[1]

Discussion

Section 1(q) of G.L. c. 268A defines state employee as "a person performing services for or holding an office, position, employment, or membership in a state 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." As a member of the Board of Registration in Nursing, you are a state employee for the purposes of G.L. c. 268A and are therefore subject to that law's provisions. Your part-time status qualifies you as a special state employee,^[2]and the conflict law will apply less restrictively to you in certain circumstances.

Section 4(c) provides that a state employee may not act as agent or attorney for anyone other than the state in connection with any particular matter^[3] in which the Commonwealth is a party or has a direct and substantial interest.^[4] This section subjects state employees to restrictions on assisting outsiders in their dealings with the state. Quality nursing education and nursing service are goals supported by NEON and MSNSA, as well as the Board. However, any particular matters in which you would be acting as the agent of NEON or MSNSA would not appear to be of direct and substantial interest to the state. Your participation as a NEON board member in developing regional conferences or model projects on such topics as collaboration between nursing service and education would not be integrally related to any Board procedure or any other state process. Likewise, your involvement as a MSNSA board member in matters such as coordinating a health care symposium would not place you in violation of § 4.^[5] However, should either NEON or MSNSA have occasion to come before the Board or any other state agency, § 4 would prohibit you from acting as either organization's agent. In this regard, it is important to note that acting as agent for NEON (or MSNSA) includes signing its contracts, acting as its advocate in any part of the process, submitting papers or representing it in any way in a state process.

Section 6 provides that a state employee shall not participate as such an employee in a particular matter in which a business organization for which he serves as an officer, director or trustee has a financial interest. The approval of a school of nursing pursuant to 244 CMR 6.00 et seq., in which you would participate as a Board member, is not a matter in which NEON has a financial interest. While an agency (school of nursing) member of NEON may have a financial interest in a certain Board approval decision, NEON as an organization will not. Similarly, MSNSA itself would not have a financial interest in nurse licensure/registration by the Board, although individual members of MSNSA may have such  an interest.

The Commission therefore concludes that from the facts you present, it does not appear that the § 6 prohibition applies to your situation.

As a state employee, you are also subject to the standards of conduct set forth in § 23 of chapter 268A. That section provides in part that no state employee shall:

1. use or attempt to use his official position to secure unwarranted  privileges or exemptions for himself or others;
2. by his conduct give reasonable basis for the impression that any person can improperly influence or unduly enjoy his favor in the performance of his official duties, or that he is unduly affected by the kinship, rank, position or influence of any party or person;
3. accept employment or engage in business activity which will require him to disclose confidential information he has gained in his official position, nor use such information to further his personal interests.

The Commission concludes that the multiple board positions you propose do not inherently violate any of the § 23 provisions. However, because both the agency members of NEON and the individual members of MSNSA are subject to regulation by the Board, you should take care to abide by these § 23 provisions in carrying out your state Board and your private board duties. For example, § 23 issues would be raised if you were to voice MSNSA’s opinion regarding a Board approval of a nursing school or NEON’s opinion concerning a nurse’s licensure/registration in a proceeding before the board.

 

End Of Decision 

^[1]This advisory opinion only considers the general applicability of G.L. c. 268A provisions to the multiple positions you propose. You are also subject to the Code of Conduct for Employees of the Division of Registration in the Executive Office of Consumer Affairs, which was promulgated pursuant to G.L. c. 268A, § 23. Because that Code was uniquely designed for Division of Registration employees, certain provisions (see, e.g., Section 7, Professional and Industrial Associations) may be more restrictive than the general  application of chapter 268A provisions. You should direct inquiries regarding this Code to the Director of the Division of Registration or the General Counsel of the Executive Office of Consumer Affairs.

^[2] See G.L. c. 268A, § 1(o)(2)(b), which provides that one automatically attains special state employee status if one is a non-elected state employee who does not in fact earn compensation as a state employee for more than eight hundred hours during the preceding  three hundred and sixty five days.

^[3] 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 and petitions by cities, towns, counties and districts for special laws relating to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, § 1(k).

^[4] Section 4(a) prohibits a state employee from receiving compensation from anyone other than the state in connection with any particular matter in which the Commonwealth is a party or has a direct and substantial interest. Inasmuch as your private board positions will be uncompensated, the § 4(a) prohibition is inapplicable to your situation. The Commission has previously determined that reimbursement for expenses is not compensation. EC-COI-81-142.

^[5] Because your activities are not proscribed in the first instance by § 4, it is unnecessary to address how § 4 restrictions would be eased on account of your special state employee status.