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HomeMy WebLinkAbout82-575 MillerMailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 October 5, 1982 ADVICE OF COUNSEL Stanley A. Miller, Commissioner 82-575 Bureau of Professional & Occupational Affairs Room 618 Transportation & Safety Building Harrisburg, Pennsylvania 17120 RE: State Dental Council And Examining Board, Professional Associations, Professional School Facilities, Advisory Committees Dear Commissioner Miller: This responds to your letter of January 25, 1982, in which you, as Commissioner of the Bureau of Professional and Occupational Affairs, requested an opinion from the State Ethics Commission. Issue: You presented five questions to the Commission regarding the effect of the Ethics Act on the following situations: 1. May a member of the State Dental Council and Examining Board (hereinafter, the Board) hold office in a state -wide professional association? 2. May a Board member serve as a delegate or alternate delegate to a state or national professional association meeting? 3. May a Board member hold a position on a professional school advisory committee? 4. May a Board member hold a position on a professional school faculty, whether part -time or otherwise? 5. May a Board member hold a position on a state -wide professional association committee or committees? Facts: As Commissioner of the Bureau of Professional and Occupational Affairs (hereinafter the Bureau), you are writing to the State Ethics Commission at the request of the State Dental Council and Examining Board. The Board's membership is controlled by Section 414 of the Administrative Code, 71 P.S. 124. That Section provides, in part, that no member of a faculty of a dental college or dental hygiene school shall be eligible to appointment as a member of the Board. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Stanley A. Miller, Commissioner October 5, 1982 Page 2 The Board itself, is responsible for a number of areas of regulation, including but not limited to the following: 1. Establishing and altering the standards of preliminary and professional eduction and training required for licensure; 2. Investigating in determining the acceptability of state dental institutions and colleges; 3. Providing for and regulating the licensed practice of dentistry and dental hygienics; 4. Prescribing and enforcing examination procedures and requirements; 5. Issuing licenses to qualified applicants; 6. Prescribing professional titles to be used by practitioners; 7. Investigating and conducting hearings on the discipline of licensees; 8. Suspending and revoking licenses when necessary; 9. Regulating licensee registration; 10. Maintaining records and submitting annual financial reports. See 63 P.S. 122. You stated that no Board member was a faculty member of a dental college or dental hygiene school at the time of his or her appointment. Subsequently, however, several members have been asked to assume various positions which relate to dental colleges, dental schools, or state -wide dental associations. Discussion: Members of the Board are public officials subject to the Ethics Act, 65 P.S. 402 and the restrictions imposed by the Ethics Act as interpreted by the Ethics Commission. At this point, the Commission observes that its authority extends only to the interpretation and enforcement of the Ethics Act. As such, it does not interpret or enforce any of the provisions set forth in the Administrative Code. We note, however, that several of the questions raised appear to be specifically resolved by a recent amendment to the Administrative Code, 71 P.S. 279.3(b). This provision indicates that no member of a professional examining and licensing board shall at the same time be an officer or an agent of any state -wide association or organization representing the profession or occupation subject to the board's actions. We do not intend to interpret this provision but merely note its existence, and this advice will address only the restrictions and prohibitions derived from the Ethics Act. Stanley A. Miller, Commissioner October 5, 1982 Page 3 Section 1 of the Ethics Act states that the financial interest of public officials shall "present neither a conflict nor the appearance of a conflict with the public trust." 65 P.S. 401. A conflict has been said to exist, according to the Commission, when an individual represents two or more persons whose interests are adverse to each other. Alfano, 80 -007. With these general principles and requirements in mind we will proceed to analyze each of the questions you present. First, a member of the Board is responsible for the promulgation, administration and enforcement of the laws of the Commonwealth relating to the practice of dentistry and dental hygienics. An officer of a state -wide professional association of dentists and /or dental hygienists might be in a position to represent that association's views concerning current or proposed legislation that affects the practice of those professions which he as a Board member would regulate. He or she might also participate in formulating association policy regarding legislation. The legislation itself would necessarily be reviewed or be presented to the Board pursuant to 63 P.S. 122. In such a situation, the Ethics Commission believes that a member of the Board would compromise his or her responsiblity to the public if he or she were to serve simultaneously as an officer of the state -wide professional association of dentists and dental Hygienists. Such simultaneous service would present a conflict of interest or an appearance thereof which must be avoided under the Ethics Act. Moreover, this conflict would exist if the Board member served as a delegate or alternate delegate to a state -wide professional association meeting or as a committee member within a state -wide professional association if the person held similar responsibilities to those outlined in the Commission's decision in Vavro, 79 -074 (Copy attached). See also Allen - Lutton, 79 -024. In each of these instances the individual involved would be responsible for playing an important role in the formulation of the association's policy concerning legislation and proposed rules which might effect that association and /or its members. In Vavro, the Commission stated that, as a general rule, an officer in an organization which represents regulatees before a State regulatory board could not simultaneously serve as a regulator. Thus, even as a delegate there could be a similarity of positions and responsibilities as set forth in Vavro. If a delegate has responsibilities of such a similar nature there would be a conflict of interest or an appearance thereof. The same reasoning and conclusion would apply to your question, No. 5, and therefore, if a committee member possesses responsibility similar to that which is present in Vavro, similar restrictions would apply. _tanley A. Miller, Commissioner October 5, 1982 Page 4 Service as a delegate or alternate delegate to a national professional association meeting, independent of a connection with a state -wide association, would not seem to present the same appearance of a conflict of interest as discussed immediately above. The national organization, we assume, operates at the national level and represents the interests of professionals nation -wide, whereas the Board and the professional association referred to in your questions, No. 1 and 5 operates at the state level only, regulating those professionals interested in practicing in Pennsylvania. Thus, simultaneously serving as the delegate or alternate delegate to a national association and as a Board member would not per se present the same problem or be prohibited by the State Ethics Act. Alfano, supra. As to a Board member's ability to hold a position on an advisory committee or a faculty of a professional school (Nos. 3 & 4 above) , the Commission observes the clarity of the prohibition set forth in the Administrative Code, 71 P.S. 424. Again, however, we note that our review will not be directed or extended to interpretations of the'Administrative Code but will deal only with the application of the Ethics Act to your question. Under the Ethics Act, no appearance of a conflict of interest would result from a Board member serving on a professional school's advisory committee or faculty, so long as the member did not participate in Board decisions that affect the individual applicants -- such as reviewing credentials, minimum qualifications, complaints, revocation proceedings, etc. -- from the school on which he serves as an advisor or a faculty member. Likewise, such a member of an advisory committee or faculty would be required to abstain from participation in any Board decision as to the school itself. This requirement would mean that the Board member in such a position would be precluded from participating in discussions, votes, and recommendations in such cases or as to such applicants and would be required to place the reasons for his abstention on the record. Miller, 80 -006. Conclusion: Members of the Board are public officials subject to the Ethics Act. To comply with the Act a member of the Board: — - 1. Must not hold office in a state -wide professional association; 2a. May not serve as a delegate or alternate delegate to a state -wide professional association meeting except as outlined above; b. May serve as a delegate or alternate delegate to a national professional association meeting; 3. May hold a position on a professional school advisory committee, as long as he or she abstains from participating in discussions, votes and decisions of the Board in matters affecting individual applicants from that school as discussed above and the Board's decisions as to the school itself and places the reason for such abstention on the record; Stanley A. Miller, Commissioner October 5, 1982 Page 5 4. May hold a position on a professional school faculty as long as he or she abstains from participating in discussions - votes and decisions of the Board on matters affecting individual applicants from that school and Board decisions related to that school and, as set forth above, places the reasons for abstention on the record; 5. May not hold a position on a state -wide professional association's committee or committees where the committee member would possess or exercise responsibility similar to that present in Vavro. 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 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 /rdp Sandra S. Ch istianson General Counsel