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Opinion

Opinion EC-COI-89-12

Date: 05/10/1989
Organization: State Ethics Commission

A member of the judiciary may accept membership on the board of advisors to a hospital, subject to certain limitations. He must avoid appearing on behalf of the hospital before any state agencies and must dispel any appearance of undue favoritism as a judge towards the hospital. 

Facts

You are a member of the Judiciary. You recently received an invitation to become a member of the board of advisors of a hospital (Hospital) which treats patients with chemical and alcohol dependencies. Patients are voluntarily referred to the Hospital, and their fees are funded primarily through third-party insurers. Although the Hospital will receive no direct patient referrals from the courts, Hospital staff may occasionally be called upon to prepare patient reports for submission to a probation officer in connection with a court proceeding involving a patient. 

The Hospital is a corporation headed by a president, corporate officers, and a six-member paid executive committee which serves as the corporate board of directors. The Hospital is also organizing a fourteen-member board of advisors comprised of professionals and citizens from community-based organizations. The board of advisors will be unpaid and will meet three or four times annually to provide suggestions and general advice to the Hospital and its board of directors.

Question

Does G.L. c. 268A permit you to accept membership on the Hospital board of advisors?

Answer

Yes, subject to certain conditions set forth below.

Discussion

As, a member of the Judiciary, you are a state employee for the purposes of G.L. c. 268A. See, G.L c. 268A, s.1(q). Upon acceptance of membership on the Hospital board of advisors, you will be subject to certain limitations in both your judicial and board of advisor capacities.

 1. Limitations on Your Hospital Activities

 Section 4(c) places restrictions on the outside activities of state employees. Specifically, s.4(c) prohibits a state employee from acting as the agent or attorney for a non-state parry in connection with any application, proceeding, determination or other particular matter[1] in which any state agency is either has a direct and substantial interest. For example, if the Hospital has a licensure application pending before the state Department of Public Health, you may not act as the Hospital's agent or spokesperson in connection with that application. You would not be regarded as the Hospital's agent by participating in in-house discussions as a member of the board of advisors. See, EC-COI-83- 145; 82-45. On the other band, you must avoid appearing before state officials or agencies on behalf of the Hospital and also avoid signing, in your representative capacity, any documents or correspondence directed to state agencies or officials.

 2. Limitations on Your Judicial Activities

 Initially, the Commission advises you that you will be prohibited by G.L. c. 268A, s.6 from officially participating in matters in which the Hospital has a financial interest. The abstention requirements of s.6 will come into play whenever a state employee is called upon to participate in a matter which affects the financial interest of a "business organization in which he is serving as officer, director, trustee, partner or employee...". As a member of the Hospital board of advisors, your relationship with the Hospital is not that of an officer, director, trustee, partner or employee. Cf., EC-COI-82-145 (hospital corporator is not officer, director or trustee for the purposes of s.6). 

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The Commission has previously stated that it will not be bound by the title of the position one holds within a business organization, but rather will examine the substance of the position. For example, in EC-COI-87-10, the Commission concluded that a savings bank corporator exercised management functions sufficiently similar to a director so as to be regarded as a director for G.L. c. 268A purposes. See, also, EC-COI-80-43 (relationship between attorneys will be treated as partnership where attorneys share ownership assets and liabilities, even absent a formal partnership agreement). Based on the information you and the Hospital have provided, however, we conclude that your board of advisor responsibilities are not comparable to those of a corporate officer or director. This conclusion is based on the fact that those corporate officer and director functions are already performed by other individuals, and on the Hospital's intent to establish the board of advisors as a community-based sounding board, rather than as a decision-making management board. 

Should a matter come before you in which the Hospital has an interest, the provisions of G.L. c. 268A,s. 23 will apply.[2] Under s.23, a state employee may not use his official position to secure unwarranted privileges or exemptions of substantial value for others, and must also avoid creating the reasonable appearance of undue favoritism towards others due to the existence of private relationships. To dispel any appearance of undue favoritism towards the Hospital, you must publicly disclose to your appointing authority the relevant facts concerning1 your official and private dealings with the Hospital. 

[1] "Particular matter," 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 of cities, towns, counties and districts for special laws related to their governmental organizations, powers, duties, finances and property. G.L. c. 268A, s.1(k). 

[2] In addition to G.L.c. 268A, you are also subject to the restrictions of the Canons of Judicial Conduct, Supreme Judicial Court Rule 3:09. You may pursue any questions concerning the application of the Canons with the Committee on Judicial Ethics, pursuant to Rule 3:11. 

[3] For the purposes of G.L. c. 268A your appointing authority is the Chief Justice of the Supreme Judicial Court. See, EC-COI-83- 116

End Of Decision

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