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HomeMy WebLinkAbout81-550 RengertSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 15, 1981 ADVICE OF COUNSEL Joseph S. Rengert, Esq. 81 -550 Department of State Bureau of Professional & Occupational Affairs Room 619, Box 2649 Harrisburg, Pennsylvania 17120 RE: State Board of Pharmacy, Conflict of Interest Dear Mr. Rengert: This responds to your letter of January 28, 1981, in which you, as counsel for the Bureau of Professional & Occupational Affairs, requested an opinion from the Ethics Commission. Issue: You request advice as to whether a member of the State Board of Pharmacy may also serve as an officer in the National Association of Retail Druggists. Facts: You advised us that Mr. Joseph A. Mosso is a member of the State Board of Pharamacy. Mr. Mosso is also an officer in the National Association of Retail Druggists. The purpose of the Association is to provide information to pharmacists concerning the management of their pharmacies. Mr. Mosso is 4th Vice - President, Vice - Chairman of the Professional Management Committee. The Committee advises pharmacists on ethics and customer relations. Discussion: The State Board of Pharmacy was created by the Pharmacy Act, 63 P.S. 090 -1 et seq., and is charged by statute with enforcing the Pharmacy Act, by refusing, revoking, or suspending pharmacists' licenses and by promulgating regulations. Previous opinions of the Ethics Commission have held that members of the Board of Funeral Directors and the Board of Barber Examiners are subject to the Ethics Act. See Lutton, 79 -024 and Alfano, 80 -007. The Board of Funeral Directors, the Board of Barber Examiners and the State Board of Pharmacy perform similar supervisory and regulatory functions. Therefore, a member of the State Board of Pharmacy must similarly comply with the requirements of the Act. Joseph S. Rengert, Esq. April 15, 1981 Page 2 The general rule expressed in these Opinions of the Commission is that a member of a state regulatory board cannot be an officer in a state trade association. Thus, a member of the Board of the Pennsylvania Nurseryman Association cannot also serve on the State Board of Landscape Architects. Fritzinger, 80 -008. A member of the State Board of Barber Examiners may not act as Chairman of the Pennsylvania Legisla- tive Counsel of Organized Barbers. Alfano, 80 -007. A member of the State Board of Funeral Directors may not serve as director of the Pennsylvania Funeral Directors Association. Lutton, 79 -024. A conflict of interest exists when an individual represents two or more individuals or entities whose interests are adverse to each other. Alfano, 80 -007. A state regluatory agency and a state lobbying association have adverse interests. The state regulator is concerned with the public welfare, the lobbyist with the interest of the trade associa- tion and one person cannot represent both interests without creating the appearance of a conflict of interest. In the instant case, however, the state regulator is not simultaneously representing a state trade association. Mr. Mosso is an officer in a national association, not a state group. In its opinion in Vavro, 79 -074 the Commission required an official of the State Board of Barber Examiners to resign a post in a state trade association but not his position in a local and international association. Accordingly, there is no conflict of interest in Mr. Mosso serving on tie State Board of Pharmacy and in the National Association of Pharmacists. Mr. Mosso must avoid the appearance of a conflict of interest, however, by abstaining from votes on questions concerning the National Association or when the National Association represents a person before the Board. He should place the reason for his abstention on the public record. Conclusion: A member of the State Board of Pharmacy must comply with the Ethics Act. There is no inherent conflict of interest when a member of a state regulatory agency is also an officer in a national trade association. The person must avoid the appearance of a conflict of interest by abstaining from voting when the National Association is involved or has represented an individual before the State Board of Pharmacy. The member of the Board of Pharmacy should place the reason for his abstention on the public record. One final caution is approrpiate. Should the State Board of Pharmacy have to rule on a case or issue which is of specific interest to the National Association of Retail Dru Mr. Mosso should not participate in any actions on sucz a case or issue. 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 Joseph S. Rengert, Esq. April 15, 1981 Page 3 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 Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SW /rdp cc: Joseph A. Mosso Si cerely, andra ristianson General C. nsel