87.01

OPINION NO. 87-1

A request has been presented by the Executive Director of the Board of Examiners of Nurses (the Board), dealing with the general issue, raised in the context of the Board's development of administrative by-laws, of whether members of the Board may serve as elected officers or directors of professional associations whose members are under the Board's authority.

The Board is established in Health Occupations Article, Title 7, Annotated Code of Maryland, and has significant regulatory and licensing authority over the nursing profession. Its authority includes the power to adopt and revise standards of nursing practice performed by registered and licensed practical nurses; to prescribe standards for educational programs preparing persons for nursing licensure; to examine, license and renew licenses of qualified applicants; and to conduct hearings on disciplinary charges or to deny, revoke or suspend a license.

The Board consists of 11 members appointed by the Governor, including 6 registered nurses, 3 licensed practical nurses, and 2 consumers. Certain educational levels are established within the categories, and appointments of registered and licensed practical nurses are to be made from lists supplied by the Maryland Nurses Association (MNA) and the Maryland Licensed Practical Nurses Association (MLPNA), respectively. Generally, each list is required to have five times as many names as there are positions on the Board. Currently the Board does not include members who are elected officers in the MNA, though the Executive Director believes that one member may be an MLPNA Vice President. Also, one member of the Board holds an appointed position as Chairman of MLPNA's Legislative Action Committee.

Apparently the professional associations involved in nursing are active participants in the Board's deliberations. This participation may involve taking strong advocacy positions, sometimes in opposition to Board proposals. Agency representatives indicate that these situations can involve a wide variety of issues, from policy decisions regarding practice questions to regulations regarding entry standards. Both of the principal associations participate in Board meetings, which, though they are informal public proceedings, do involve presentations and opportunities for individuals to officially present views on behalf of the respective association membership. Other groups not mentioned in the statute may also participate. This includes, for example, the Maryland Council of Deans and Directors, an educational group that has submitted written materials regarding nursing education issues. A Board member is president of this group.

An example of the types of issues that are the basis of the Board's concerns is its consideration of entry level standards for registered nurses. The current criteria does not require a B.S. degree, but the MNA is advocating a change in this policy to require a B.S. as minimum entry educational level. Another issue involves the ability of licensed practical nurses to do I-V therapy; this is opposed by the MNA and favored by the MLPNA. This substantive involvement of the professional associations on various sides of Board decisions such as these has raised concerns about Board members serving as officers in the associations. According to the Executive Director, members point out that they tend to be seen in the professional community in terms of their Board position. When they attend meetings and take positions they may therefore be viewed as speaking for the Board even when the views being expressed are those of the association.

The question has also arisen in the legislative context. During the 1986 Session of the General Assembly the Board member who also served as MLPNA's Legislative Action Committee chairperson was apparently involved in legislative issues about the polity regarding I-V therapy. This group also retained a lobbyist who was registered as a legislative and executive branch lobbyist. The authorization was signed by the Board member. The Executive Director also indicates that in the past written comments submitted by the Council of Deans and Directors to the Board have been signed by the group's President, who is a member of the Board. Apparently, in view of these types of problems, the Board proposed to include in its by-laws a provision prohibiting service by members as elected officers in professional associations composed of persons regulated by the board. The Assistant Attorney General reviewing the by-laws, however, advised that the Board's enabling legislation could not in itself be construed to authorize this type of general prohibition. The Board was told that such a bar would be allowable only if the service resulted in a conflict of interest, and advised that an opinion should be sought from the Ethics Commission.

This request presents outside employment issues under §3-103(a) of the Public Ethics Law, (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) that are similar in some ways to prior Opinions. This provision of the Law bars officials and employees from being employed by or having a financial interest in an entity that contracts with or is under their agency's authority (subsection (a)(1)(i)), or from having any other employment that would impair their impartiality or independence of judgment (subsection (a)(1)(ii)). In reviewing situations similar to the one presented here, we have said, consistently and often, that volunteer service on management and operational boards of private entities, including non-profit entities and professional associations, constitutes an employment relationship for purposes of §3-103(a)(1) of the Ethics Law. (See, for example, our Opinions No. 86-16, No. 85-19, and No. 84-23.)

More particularly, in a recent request involving the Board of Morticians, we considered the service by one of its members as an elected officer of the Funeral Directors Association. In that Opinion (No. 85-19), we noted that the Morticians Board and the Association interacted closely on legislative and regulatory matters, but that the Association did not make formal appearances before the Board and had not involved in formal disputes with the Board. The Association was found not to be under the Board's authority for purposes of §3-103(a)(1)(i). The Commission also concluded based on the somewhat unique facts presented at that time that the impairment provision of subsection (a)(1)(ii) did not bar the person's service with the Association, given the clear intention of the enabling law that regulated industry members fulfill a significant role on the Board.

The Board of Examiners of Nurses has very similar enabling and appointing authority to the Morticians Board. Regulated industry members are appointed based on recommendations from the professional associations, and represent a functioning majority of the membership. There appears to be a more arm's length relationship between the Board and the nurses' associations, however, with a more adversary and advocacy position being officially taken by associations in Board matters. Unlike the circumstances as described in the earlier Opinion, there has also been a history here of situations where potential conflicts between Board and association positions could have impacted on the Board's functioning and the credibility of its activities. Also, some of the members have actually participated in written presentations to the Board, and one member is authorizing individual in an executive branch lobbying registration.

Opinion No. 85-19 was based on information provided regarding that particular board and its relationships with the industry's professional association, at that time. Since the issue is presented again in the particular context of the Nurses Board, and has been raised informally as to other DHMH Boards, we request additional information and views of the Department, in order to evaluate whether the result in Opinion No. 85-19 reflects an approach that can be generally applied, as a practical matter, to the agency's licensing boards. The Secretary advised regarding boards within the Department that there are three board members who are officers of associations and several others who serve on boards of directors, and that the number of instances is growing. Enabling statutes tend not to prohibit such service, and the Department has no formal policy on the issue, though the matter is addressed (and resignation from private positions is recommended) when nominations are requested from professional associations.

Moreover, the Secretary indicated that though membership in a professional association is viewed as a valuable asset for board members, the Department has deep concerns about service by licensing authority members as officers or directors of professional associations. Particularly, the Secretary advised:

The role of the regulatory board is to protect the public interest by policing the profession; the role of the professional association is to protect and advance the interest of the profession and its members. Often the two roles may conflict. The regulatory board's functions are to examine, license, regulate and discipline as a means of assuring that the public is protected. The professional association advocates and lobbies to assure the advancement of the profession. But the boards and the professional associations are policy-making bodies. In such a situation, it is difficult for individuals to shift perspectives and carry out both functions in a manner that is impartial and demonstrative of independent judgment.
The Department of Health and Mental Hygiene which has a responsibility for providing administrative oversight of the boards, has the dual responsibility to assure that the people of of the State are protected and to guard against situations which have the potential to embarrass the State. In an era when peer review is being very closely scrutinized by the consumer, and the public criticism that peer review is actually peer protection, the State should not be seen as supporting or giving the appearance of supporting the co-mingling of disparate duties to protect the public and to protect the profession. The inclusion of public members on the boards was an attempt to dilute public criticism of peer review. To allow a practice, such as dual service on both the regulating and professional bodies to stand and to grow, will undo the gains we have made toward supporting peer review as fair and acceptable regulation of health care providers.

The private professional associations appear not, as a general matter, to be regulated by or contractors with DHMH or their respective boards, so as to be within the strict prohibitions of §3-103(a)(1)(i). Our concern in implementing the impairment provisions of §3-103(a)(1)(ii) has been to ensure that operational relationships between boards and organizations with which board members have policy responsibilities do not present situations where differing goals and approaches would compromise or appear to compromise the licensing functions of the board or its members. Considering the views expressed by the Secretary and the information from the Department that there are problems in other boards, it appears to us that the earlier Opinion reflects an exception (which in fact may no longer be true even for that Board). We believe that the more realistic approach is that service by board members as officers or directors of professional associations does result in an impairment of impartiality that would bring it within the prohibition of §3-103(a)(1)(ii), unless there are facts that, in the agency's view, clearly support a conclusion that there would be no impairment, and we so advise this particular Board and the Department generally.1

*Thomas D. Washburne, Chairman
     Reverend John Wesley Holland
     Barbara M. Steckel

Date: January 29, 1987

* Mr. Washburne was a member and Chairman of the Commission when this request was considered and decided, but resigned prior to issuance of the formal Opinion.

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1 We recognize, of course, that service with a professional association could be allowable where there is disclosure in connection with the appointment process pursuant to the time of appointment exemption provisions of §3-103(a)(2)(iii) of the Law.