Opinion  EC-COI-85-31

Date:	04/02/1985
Organization:	State Ethics Commission

Physicians who are members of the medical staff of a municipal hospital are municipal employees for the purposes of G.L. c. 268A because they are an integral part of the hospital's operation.

Facts

You represent ABC, a partnership of physicians who want to develop a privately-financed medical office building at a city hospital (Hospital).^[1] The partners are physicians who are members of the medical staff at the Hospital. The Hospital is a community hospital established as a department of the City to provide hospital services to the citizens of the City and the communities surrounding the City. The Hospital is operated as part of the City government through the mayor and a board of managers (Board). Through the Hospital by-laws, the Board is directed to organize the "physicians, dentists and appropriate other persons granted clinical privileges in the Hospital into a medical staff under Medical Staff By-laws approved by the Board." (See Article VII, Hospital By-Laws). The Board has ultimate authority over the medical staff. The authority for granting membership on the medical staff and clinical privileges rests with the Board. All physicians with admitting privileges or rights to practice at the Hospital must be members of the medical staff. Members of the medical staff receive no payment from the Hospital or City in such capacity,^[2] but are required to admit patients to the Hospital or face suspension.^[3] You state that the primary purpose of the medical staff is to ensure what the Hospital By-Laws describe as "the highest standards of professional care to the Hospital's patients." The medical staff by-laws set forth related particular purposes, among them to serve as a primary means of accountability to the Board to ensure an optimal level of professional performance, to provide "an appropriate educational setting that will assist in maintaining patient care standards" and to "supervise the establishment of rules and regulations for the operation of each medical department." The medical staff operates, through its officers, a number of committees with responsibilities for particular medical areas in the Hospital. With the approval of the Board, medical staff members hold appointments in the Hospital as department chairpersons and division directors. (See Article XI Medical Staff By-Laws). You indicate that department chairpersons are responsible for a number of matters relating to the care of patients admitted to the Hospital with illnesses in their field.

Question

Are physicians who are members of the medical staff at the Hospital considered municipal employees for the purposes of G.L. c. 268A?

Answer

Yes.

Discussion

There is no question that the Hospital is considered a municipal agency pursuant to G.L. c. 268A, § 1(f). See EC-COI-83- 74.^[4] The Hospital was established by statute and derives its powers through the statutes and ordinances of the City. It operates as part of the City government through the mayor and a board of managers.

The threshold question is whether physicians who are appointed by the Board of the Hospital to its medical staff are considered municipal employees for the purposes of G.L. c. 268A. The Commission concludes that they are. A municipal employee is defined 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, § 1(g). The Commission has previously held that persons in the private sector who are performing services for government and "actually performing the tasks and functions that might ordinarily be performed by government employees" will be considered public employees for the purposes of G.L. c. 268A. See EC-COI-82-54. All physicians with admitting privileges or rights to practice at the Hospital must be members of the medical staff. The Hospital delegates specific functions to the medical staff in order that the Hospital can fulfill its stated purposes. The physicians provide more than informal, general advice to the Hospital. Compare EC-COI-82-54. The relationship between physicians and the Hospital is structured and formalized. Besides covering persons who are obviously municipal employees, the statute..." leaves no doubt that a lawyer, architect or the like, rendering professional services to a municipal agency whether paid or not, would be a 'municipal employee'."^[5]

The appointment of physicians to the medical staff is not analogous to licensing procedures imposed on other professions. Attorneys are required to be licensed in order to practice law under rules of the Supreme Judicial Court, yet the licensing relationship does not rise to the level of governmental employee status for all attorneys. Likewise, physicians who are required to obtain licensure from the Board of Registration of Medicine are not state employees by virtue of the licensure. Here, however, the physicians are an integral part of the Hospital. The Hospital By-Laws provide extensive rules as to the requirements for appointment to its medical staff. Once appointed, a member of the medical staff must participate in Hospital committees and ensure that the Hospital is providing optimum care to its patients. The Hospital and the medical staff are mutually responsible to each other to provide quality health care for the City. Members of the medical staff head the Hospital departments. Without the medical staff referring and admitting patients to the Hospital, the Hospital would not be able to fulfill its stated purposes to provide hospital services to the citizens of the City and the communities surrounding the City.^[6]

 

End Of Decision

^[1] Although the city solicitor is authorized under G.L. c. 268A, § 22 to render advisory opinions to municipal employees, the Commission has rendered this opinion because your question presents issues of first impression. We note that the city solicitor has joined in your request.

^[2] You note in your request that some individual medical staff members have entered into specific contracts for services with the Hospital. It appears that these medical staff members would be considered municipal employees for the purposes of G.L. c. 268A. If there is a question as to their status, it may be confirmed through an advisory opinion by the city solicitor.

^[3] Article III, section 7b provides:

    b. When a member of the active category of the Medical Staff has not admitted a patient to the
    Hospital or has not provided services to any Patient in the Hospital for a period of twelve (12)
    continuous months, he shall be given special notice by the Director that in thirty (30) days he
    shall automatically be deemed in a leave of absence status for the next succeeding six (6) months.

^[4] These citations refer to previous advisory opinions issued by the Commission. Copies of these and all other advisory opinions may be obtained at the Commission's offices.

^[5] Buss, The Massachusetts Conflict of Interest Statute: An Analysis, 45 B.U. Law Review 299, 311 (1965). You indicate that medical staff members have no control over Hospital or City activities or decisions, and thus are not susceptible to the sorts of misuse of governmental power for private purposes that G.L. c. 268A is intended to prevent. Your argument on this point is with the legislature's broad definition of municipal employee.

^[6] As municipal employees, the members of the partnership would be prohibited by G.L. c. 268A, § 20 from having a financial interest directly or indirectly in a contract made by a municipal agency of the same city, in which the city is an interested party. The proposed development by the partnership of a private professional building which is owned by the city would give partners a financial interest in a municipal contract. Notwithstanding their municipal employee status, by becoming special municipal employees the medical staff members of the partnership could engage in the proposed development. G.L. c. 268A, § 20(d). The decision to grant special municipal employee status and to approve any exemption from § 20 rests with the city council.