85.07

OPINION NO. 85-7

The Chairman of the Maryland Board of Examiners of Speech Pathologists (the Board) has requested advice as to whether a member of the Board may be employed as the Director of the State and Regulatory Policy Division of the American Speech and Hearing Association (ASHA or the Association).

The Member is a speech pathologist who was appointed to the Board of Examiners for Speech Pathologists in 1982; her appointment expires in 1987. The Board is a unit within the Department of Health and Mental Hygiene (DHMH), and is established pursuant to the Health Occupations Article, Title 19, Annotated Code of Maryland. The Board consists of six members appointed by the Governor, three of whom must be licensed speech pathologists. The other Board members include an audiologist, a physician and a consumer member. The Board is a licensing and disciplinary Board with significant independence within the Department of Health and Mental Hygiene. It has the general authorities of such boards, including the ability to adopt rules and regulations, to adopt and publish a code of ethics, to hold hearings and keep records, and to develop a list of individuals licensed by the Board to practice speech pathology. It has the authority to establish licensing fees and to define licensing requirements, including education, clinical and employment requirements, as well as examination requirements.

The Board also has the authority to waive qualifications of individuals and to issue limited licenses. As with most licensing boards, this entity has general investigative and enforcement powers, and the authority to issue denials, reprimands, suspensions and revocations of licenses. Section 19-313 of the Health Occupations Article lists a significant number of substantive bases on which these types of disciplinary actions may be taken. These actions may be taken only after a hearing consistent with the Maryland Administrative Procedure Act, and are, as a general matter, reviewable administratively and judicially. The Member indicates that the Board at its meetings generally takes action to define general policy and to prepare legislative and regulatory documents, and is involved in discussions as to inquiries, complaints and other procedural matters.

At the time of her appointment to the Board, the Member was a speech pathologist employed at Towson State University. She served in the University's Speech Language Hearing Clinic supervising students who were doing practical work toward their certification as speech pathologists. In the Fall of 1984 she applied for the position of Assistant Director of the American Speech and Hearing Association in their State and Regulatory Policy Division, and began this employment in February, 1985. The Association is a private professional organization that is significantly involved in licensing and other professional matters relating to speech and hearing professionals. Basically, the organization is an entity composed of and representing professionals who are subject to the Board's jurisdiction. The Association also establishes national professional standards, and through the Member and her Division urges that these professional standards be adopted by State licensure boards.

Also, the Association is involved in development of a national exam in speech pathology and audiology. This exam is apparently developed by the Educational Testing Service (ETS) in Princeton, New Jersey and is owned by that entity. It is prepared, however, with input from ASHA and professionals in the field, primarily in the form of ASHA's nominations of individuals to serve on the test committee and also to serve as item writers developing the test. The exam is administered solely by ETS, and not by ASHA or local entities. According to the Member there is no official ASHA representation or participation as an organization on the test development committee and the organization does not see or review the test prior to its finalization. Nor, apparently, do State boards or members of State boards have involvement in writing the test, except to the extent that individual local experts may be involved on the test committee or as item writers. Apparently ASHA is also involved in funding a validation study to determine the adequacy of national standards for professional licensing and certification. The actual certification process is managed by the Council on Examination Standards, a separate but ASHA-affiliated organization.

As to her particular job with ASHA, the Member indicates that she interacts both with local associations and with State boards. She says she meets with them and sends them information, and provides telephone responses to inquiries regarding current developments in examination and licensing standards. She states that the entity may appear officially (provided it is invited), before a State Legislature or a regulatory body to comment in sunset legislative review, and may also comment on regulatory policy decisions. She provides resource materials and documents regarding professional licensing standards in the field. According to agency personnel ASHA also issues policy interpretations regarding standards, which are frequently relied upon by State boards. The Member also indicates that she will participate in the annual meeting of the National Council of State Boards of Examiners for speech, language and audiology and would be serving on behalf of ASHA as a professional consultant to this organization.

The Maryland Board of Examiners of Pathologists does, as a matter of policy, rely significantly on the activities of ASHA in carrying out its licensing responsibilities. In the requirements for licensure, for example (in COMAR 10.41.03.03), a person may be granted a license if he holds a valid Certificate of Clinical Competence in audiology or speech pathology from ASHA. In addition, a license may be granted if the person has completed academic and examination requirements and has had clinical experience consistent with the Clinical Fellowship Year program established by ASHA. The regulations also provide that a person who applies for a license must have a passing score on the national examination in speech pathology and audiology. According to DHMH Legal Counsel and the Board's Administrative Director, the Board does not contract with ASHA as to any of these matters. The examination and certification processes are developed by ASHA (or its affiliate), but the test is not given by the State under any contractual relationship between the State and ASHA. The Board merely, through its regulations, accepts the professional qualifications of individuals who are certified by ASHA.

According to the Board's current Chairman, the State licensure program has been in existence for twelve years. Prior to this time there were no State established requirements for licensing, and individual employers of speech pathologists could, at their discretion, determine qualifications based solely on whether or not the certificate of competence by ASHA had been issued. This was not required, however. Currently, the State licensing requirements accept the private organization's certification, and also generally reflect the standards developed by ASHA. The State also has State-mandated ethical responsibilities (which are in the State statute and State regulations), and also has continuing education requirements that are not mandated by ASHA.

An initial conclusion in considering application of ethics provisions to this situation is that the Member has an employment relationship with a private entity, the American Speech and Hearing Association. As such, she would be covered by the outside employment provisions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law), if that employment comes within any of the statutory criteria set forth in §3-103(a). This section prohibits an official or employee from being employed by or having an interest in an entity that is under the authority of or contracts with his agency (subsection (a)(1)(i)), or from having any other employment that would impair his impartiality or independence of judgment (subsection (a)(1)(ii)). Since there appears to be no contractual or authority relationship between ASHA and the Board (or DHMH) the strict prohibition set forth in subsection (a)(1)(i) would not appear to apply. We thus believe that the issue under this section is whether subsection (a)(1)(ii)'S more general prohibition against any other employment which would impair the individual's impartiality or independence of judgment would apply.

Our long-standing and consistent application of this provision has been to apply it "where the relationship between official duties and outside activities gives rise to clear and serious concerns as to the ability of the official or employee to engage in the outside activity and still maintain his impartiality and independence of judgment in carrying out his State responsibilities."1 We, have, in evaluating application of this general policy, looked to the specific kinds of relationships between the State and the private entity, and have looked particularly to the types of duties that the individual has in the context of his State position. Though in this situation there is no regulatory or apparent direct monetary relationship between the State board and the private entity, there does appear to be significant interaction between the two, especially in the sense that the State can or has adopted standards established by the Association.

Moreover, the inter-relationship of the two entities would appear to be the specific responsibility of the Member in her private activity. The outside employer is an advocate for certain licensing activities and also for the interests of its member individuals who are licensed by the Board. The Member is employed by ASHA to carry out much of this advocacy and in effect is being compensated by a private entity to be a liaison to her own board. Though we recognize that the two entities have in common the ultimate goal of having competent professionals in this field, the interests of the two or the specific approaches as to any given particular issue would not always necessarily be identical. We are concerned that, however good her intentions, the Member would necessarily be less than objective in the situations where there are differences of view.

Also, the Board's Chairman has indicated that to a certain extent, there could be a potential for conflict in the fact that both of these entities engage in licensing and certification activities, and State certification and licensing to a certain extent relies on action taken by ASHA or its affiliate. This situation could raise issues if a complaint or enforcement matter were to arise with the Board and also to be considered contemporaneously before ASHA (which has authority through its affiliated entity to withdraw a certification that could be the basis of a Maryland license). Though the Member does not appear to be involved in these aspects of ASHA's activities, we believe that this type of situation adds to the general appearance and inconsistent employment issues raised under the Law.

Under all of these circumstances we believe that the provisions of §3-103(a)(1)(ii) apply to bar the Member's contemporaneous service on the Board and in her position with ASHA. The close and pervasive policy and administrative relationship between the Board and ASHA and its affiliate would, in our view, raise clear and serious concerns about her ability to carry out her State duties impartially and independently.2

Herbert J. Belgrad, Chairman
   Reverend John Wesley Holland
   Betty B. Nelson
   Barbara M. Steckel
   Thomas D. Washburne

Date: June 19, 1985

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1 See, for example, our Opinions No. 84-22, No. 83-25, No. 83-13, No. 83-7, and No. 82-22.

2 We have noted to the Member and her agency that the special exemption provisions of §2-103(h) and 3-103(a)(3) could be considered if a request were presented by the agency and other appropriate persons. We do not believe, however, that either of the particular board and commission exceptions of §3-103(a)(2)(i) and (iii) are applicable here.