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HomeMy WebLinkAbout84-582 PhiferDavid F. Phifer, Chief Counsel Office of the Chief Counsel Department of State 307 North Office Building Harrisburg, PA 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 3, 1984 ADVICE OF COUNSEL 84 -582 Re: Physician, Medical Educational and Licensure Board and State Athletic Commission Dear Mr. Phifer: This responds to your letters of May 1, 1984, and May 17, 1984, in which you, on behalf of a certain individual requested advice from the State Ethics Commission. Issue: You ask whether a particular person may concurrently serve as a member of the Board of Medical Education and Licensure and as a Commissioner of the Pennsylvania State Athletic Commission. Facts: As Chief Counsel within the Department of State, on behalf of Dr. Richard C. Lyons, M.D., you request advice from the State Ethics Commission as to the above identified question. Specifically, you indicate that Dr. Lyons currently serves as a member of the State Board of Medical Education and Licensure, hereinafter, the Board. Dr. Lyons was so appointed by the Governor pursuant to 71 P.S. 122. Under the provisions of the statute applicable to this Board, Dr. Lyons is compensated for his services at the rate of $30 per day, while actually engaged in work of the Board. The duties of the Board are set forth in the Medical Practice Act, Act of July 20, 1974, P.L. 551, 63 P.S. 421.1 et seq. A Commissioner of the Pennsylvania State Athletic Commission, hereinafter the Athletic Commission, wishes to recommend Dr. Lyons to the Governor for appointment of to a vacancy on the Athletic Commission's Medical Advisory Board. This appointment would be made pursuant to 4 P.S. 30.401 et seq. The members of the Medical Advisory Board, hereinafter the MAB, are appointed by the Governor to serve a term of four years except when filling a vacancy in an David F. Phifer, Chief Counsel July 3, 1984 Page 2 existing position. Members must be duly licensed to practice medicine in the Commonwealth of Pennsylvania and must have at least five years experience at the time of appointment. Each member of the MAB is paid $35 per day plus any reasonable and necessary travel and other expenses incurred in the performance of his or her duties in accordance with 4 P.S. 30.401 - 30.403. The functions of the MAB are to assist the Athletic Commission in preparing and submitting recommendations to the Athletic Commission for approval of standards for the physical and mental examination of boxers and wrestlers in order to safeguard the health of these individuals. The MAB also makes recommendations to the Athletic Commission with respect to the licensure of physicians who are qualified to make examinations of boxers and wrestlers. Additionally, MAB members may also be called upon to perform other consultant - related duties as the Commission finds necessary in accordance with 4 P.S. 30.404. Discussion: Insofar as this physician, Dr. Lyons, currently serves as an appointed official who receives compensation, he must be considered a "public official as that tens is defined in the State Ethics Act. Accordingly, his conduct must conform to the requirements of the State Ethics Act. We will discuss the requirements of the State Ethics Act further below. First, however, we must indicate that the jurisdiction of the Ethics Commission to render opinions and advices is strictly limited by the Ethics Act. Accordingly, although you request us to do so, we cannot render an opinion as to whether the simultaneous appointment of Dr. Lyons to these two entities, constitutes a conflict of interest within the provisions of 4 Pa. Code 7.151(1). We will, however, proceed to review this question in light of the responsibilities and duties of Dr. Lyons under the State Ethics Act. There is no provision of the Ethics Act nor any opinion of the Ethics Commission which declares that simultaneous service with two entities such as you describe here, constitutes an inherent or per se conflict under the State Ethics Act. Essentially, the Ethics Commission has concluded that a conflict of interest exists when an individual represents two or more persons whose interests are adverse to each other. See Alfano, 80 -007. Under the circumstances as you have outlined them and given the duties and responsibilities of members of the Board and the Athletic Commission, we do not perceive any inherent conflict of interest if Dr. Lyons were to simultaneously serve in the positions you describe. This is because the interests of the Board and the interests of the MAB of the Athletic Commission do not appear to be adverse to each other, given the duties and responsibilities of each of these entities. Of course, should there be circumstances under which the interests of or the decisions which Dr. Lyons would be making as a member of the Board or the MAB of the Athletic Commission would be adverse to each other, he should, in an individual case, consider abstention as an alternative to participation in David F. Phifer, Chief Counsel July 3, 1984 Page 3 such individual decisions or matters. However, on a general basis, neither the State Ethics Act nor the opinions of this Commission indicate that such simultaneous service would be, per se, prohibited or represent a conflict of interest within the meaning of the State Ethics Act. Conclusion: There is no inherent conflict, any appearance of a conflict under the State Ethics Act, nor any opinion of the State Ethics Commission which would prohibit the simultaneous service by Dr. Lyons as a member of the Board and the MAB of the Athletic Commission as outlined above. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /na Si ncerely, 4 andra S. Christianson General Counsel cc: William R. Davis, Secretary of the Commonwealth James Binns, Chairman