Opinion

Opinion EC-COI-85-56

Date: 07/16/1985
Organization: State Ethics Commission

A physician for the commonwealth may maintain a part-time private medical practice and participate in a health maintenance organization administered by the state. She may only accept private patients who are not state employees. However, she must continue to accept only private patients who are not state employees.

Table of Contents

Facts

You are a physician for the commonwealth and you report to a committee from the Group Insurance Commission (GIC), which is responsible for the administration of health maintenance organization plans for state employees. You also have a part-time medical practice several evenings during the week. All of your private patients are from your community, and none are state employees. In your private practice you are a primary care physician for the Plan, a health maintenance organization which is available to state employees. In this capacity, you accept as patients only employees of private corporations.

Question

Does G.L. c. 268A permit you to maintain a private practice?

Answer

Yes, subject to the following conditions.

Discussion

As a physician for the commonwealth, you are a state employee for the purposes of G.L. c. 268A, § 1(q). The sections of the conflict of interest law applicable to your situation are §§ 4 and 23.

1. Section 4

Under this section, you are prohibited from receiving compensation from non-state parties in relation to any "particular matter" in which the commonwealth or a state agency is a party or has a direct and substantial interest. Prior opinions issued by the Commission have stated that the referral and treatment of patients are "particular matters" within the scope of the statute. See EC-COI-84-112. Whether the state has a direct and substantial interest in the matter is determined by the state's involvement or responsibility for the referral or treatment. You indicate that your private patients are not state employees, and the private patients you accept from the Plan are employees of private corporations. Since you do not accept referrals or treat state employees in your private practice, § 4 would not apply to your situation.

2. Section 23[1]

Section 23 contains general standards of conduct applicable to all state, county and municipal employees. These provisions address courses of conduct raising conflict questions as well as the appearance of conflict, Section 23(¶ 2) prohibits the use or attempted use of your official position to secure unwarranted privileges or exemptions for yourself or others. It also prohibits you from, by your conduct, giving a 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. G.L. c. 268A, § 23(¶ 2)(3). Since you report directly to a GIC committee, you should avoid using your official position to secure preferential treatment for the Plan with the GIC. In other words, your position and loyalty to the Plan should not influence your work as a state employee.

 

End Of Decision

[1] On July 9, 1985, the Supreme Judicial Court ruled that the commission does not possess the jurisdiction to enforce G.L. c. 268A. § 23. The discussion contained above is based on prior Commission rulings and is intended to provide guidance to you and your appointing official.

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