90.14

OPINION NO. 90-14

An opinion has been requested by the Board of Physician Quality Assurance (the BPQA or the Board) concerning application of Commission Opinion No. 87-1 to service by Board members as officers of the Medical and Chirurgical Faculty of Maryland (Med-Chi). That Opinion advised that members of health licensing boards may not be officers in professional associations whose members are under their board's authority. Having reviewed the organizational information provided regarding Med-Chi, we advise that the limitations of Opinion No. 87-1 apply to individuals that are Med-Chi officers as discussed below.

The Board of Physician Quality Assurance was established in 1988 as a unit within the Department of Health and Mental Hygiene (DHMH). It replaced two prior Boards, the Commission on Medical Discipline and the Board of Medical Examiners, and consists of fifteen members appointed by the Governor. The Board is the State entity that licenses and disciplines medical doctors in the State. It defines educational requirements, administers licensing exams and exercises disciplinary authority. This includes the authority to reprimand licensees, to place a licensee on probation, or to suspend or revoke a license based on a number of bases set forth in the statute. In connection with these activities the Board issues and implements regulations, adjudicates matters, proposes and comments on legislation and issues declaratory rulings.

The Medical and Chirurgical Faculty is a private entity that functions as an association of physicians and surgeons in the State. Med-Chi has in the past had and currently does have a close relationship with the State licensing and regulating function. It currently makes nominations for membership to the Board, and its Peer Review Committee by statute has substantial responsibilities in the regulatory and enforcement process relating to this profession. Med-Chi has in the past had members on the State medical boards serving ex officio as Med-Chi appointees, but this approach was deleted from the Board's structure when the law was amended in 1988.

This request involves application of the employment provisions of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law) to service by BPQA members as officers of Med-Chi, particularly in view of the interpretation of the Law applied in Commission Opinion No. 87-1. This Opinion involved consideration in a general way of service by members of health licensing boards as elected officers or directors of professional associations whose members are under the board's authority. The Opinion reflected our consistent view 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 the Ethics Law.

Opinion No. 87-1 considered service as an officer of an association under the employment impairment provision of §3-103(a)(1)(ii). This section prohibits an official or employee from having any employment relationship which would impair their impartiality or independence of judgment. As noted in Opinion No. 87-1, "our concern in implementing *this provision* 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 and its members". In that Opinion we also took account of the similar concerns expressed by the Secretary of DHMH that the public and private roles of board membership and elected offices in private associations may conflict, and that in these situations, "it is difficult for individuals to shift perspectives and carry out both functions in a manner that is impartial and demonstrative of independent judgment".

Considering these views and the intent and purpose of the provisions of the Ethics Law, we concluded that service by board members as officers or directors of professional associations can result in an impairment of impartiality that would bring it within the prohibition of §3-103(a)(1)(ii) of the Ethics Law. Opinion No. 87-1 has been viewed by both the Department of Health and Mental Hygiene and this Commission as establishing the general rule for service by members of licensing boards. We have applied this approach in informal advice to several boards in various other agencies. The Department also has supported and implemented this approach both in recruiting persons to serve on these boards and in making recommendations to the Governor for appointment.

Med-Chi has suggested that its circumstances warrant a different approach to service by BPQA members as officers of the organization. This is based on the historical relationship of Med-Chi to the State's licensing and enforcement process. The entity's role is described as quasi-legal, including a role in the appointment process and a "dominant role" in the peer review process. We believe, however, that the principles adopted in Opinion No. 87-1 should apply to the Board of Physician Quality Assurance. In view of the carefully defined statutory relationship between the Board and Med-Chi, and the deletion in the recent legislation of ex officio positions from the Board, as well as the agency's continuing concerns, we do not find a basis for concluding that this Board for conflict of interest purposes is different than other professional licensing boards. We therefore advise that the prohibition of service by licensing board members as officers of associations of licensees applies to the members of the BPQA as it applies to those of other State boards and commissions.

In order to evaluate the scope of application of this prohibition, we have reviewed with the agency and a representative of Med-Chi the organizational structure of Med-Chi to evaluate which positions within the organization would be viewed as employment presenting issues under the Law. The Bylaws of the organization define the elective officers as including the President, President-Elect, a First, Second and Third Vice-President, a Secretary, a Treasurer, and Councilors elected by their local societies. The entity's Council includes these elective officers, the Immediate Past President, the Delegates to the American Medical Association, the deans of the medical schools within Maryland, representatives of component societies (the Councilors), and the representative of the Committee on Specialty Societies.

The Council has substantial general operating power and authority over the affairs of the organization. It meets several times a year and acts on reports from its committees and other entities. (There is also an Executive Committee of the Council that is composed of 7 Council members, and acts on behalf of the entity between Council meetings.) The organization also includes a House of Delegates composed of delegates representing the component societies, members of the Council, past presidents, seven delegates of the Committee on Specialty Societies, and a representative of the Board of Physician Quality Assurance. Med-Chi also includes a number of committees that address the whole gamut of medical issues and present reports and motions to the Council and to the House of Delegates.

As noted, we have in prior cases concluded that the employment provisions of the Law apply to service with a private entity that involves policy-making, operational and management responsibilities. We believe that this principle as we have applied it in the past is appropriately applied to the category of individuals that make up the Council. This is consistent with our view of the entity's Bylaws and also reflects the type of organizational functions most likely to result in conflict. We therefore advise that the prohibition of § 3-103(a) of the Law as discussed above applies to limit the dual service by members of BPQA as President, President-Elect, immediate past President, any Vice-President, Treasurer, Secretary or Councilor of Med-Chi, or as a medical school dean, delegate to the American Medical Association or representative of the Committee on Specialty Societies.

Reviewing the current membership of the Board, we understand that there are currently three members who hold positions with Med-Chi that would be prohibited under the guidelines of this Opinion. We recognize that this is the first formal application of Opinion No. 87-1 to the particular facts presented by Med-Chi, and also that there are several possible exemption provisions in the Ethics Law that could be applied in a transition period as to this Board. We will review with these individuals the status of any time-of-appointment disclosure filed by them, with regard to its timeliness and its acceptance by the appointing authority. If there is no time-of-appointment disclosure, we will also evaluate any request for exemption pursuant to §§2-103(h) or 3-103(a)(3) submitted by the Department and the appointing authority.

This evaluation would be for the purpose of dealing with a transition as to these current members only. For future reference, the Department, the appointing authority and potential appointees (and Med-Chi as a nominator of appointees) should be aware that this kind of dual service is prohibited. They should take care to address this in the context of the appointment and ensure that any time-of-appointment disclosures are timely filed and evaluated in the appointment context. Also, all parties concerned should be aware that the time-of-appointment exemption applies only to conflicting service existing at the time of appointment and not to undertaking a new position with Med-Chi after appointment to BPQA.

William J. Evans, Chairman
   Mark C Medairy, Jr.
   Robert C. Rice, Ph.D.
   Mary M. Thompson

Date: October 23, 1990