99.03

OPINION NO. 99-03

State Ethics Commission advice has been requested as to whether two individuals may serve on the State Board of Dental Examiners if one (the Dental Hygienist) is an employee of the other (the Dentist) in a private dental business. We advise that this type of private employment relationship presents a continuing potential for impairment and would not as a general matter be allowable under the Public Ethics Law (State Government Article, Title 15, Annotated Code of Maryland, the Ethics Law). It can continue in this situation only based upon proper submission of a Time of Appointment Exemption Disclosure that is accepted by all appropriate authorities in the appointments process.

The Board of Dental Examiners (the Board) is a health professional regulatory and licensing board with authority to examine, license and discipline individuals engaged in the practice of dentistry or dental hygiene in the State. It also has general regulatory authority relating to dental laboratory work and dental radiology. The Board includes 14 members all appointed by the Governor. In addition to two consumers, the Board includes 9 dentists who are appointed from a list submitted jointly by the Maryland State Dental Association and the Maryland Dental Society. There are also 3 dental hygienists, who are appointed from a list provided by the Maryland Dental Hygienists' Association.

The Dentist and the Dental Hygienist involved in this request were both appointed to the Board in 1994. At the time of the appointment the Dental Hygienist was employed as a hygienist with a Columbia dental practice and did not need to request an exemption based on a time of appointment exemption disclosure as provided in §15-502(c)(4) of the Ethics Law. Her employment as a dental hygienist generally would have been exempt without special disclosure, pursuant to §15-502(c)(2) of the Law and the fact that she was a member of a licensed profession required by statute to be appointed to a licensing or regulatory board. The Dentist would also be exempt as a dentist by virtue of the licensing board exemption. His annual ethics disclosure statement shows a 50 percent interest in his dental practice (the Dental Practice) and his service as President. At the time of their original appointments these individuals did not have an employment relationship.

The Dental Practice is, according to the Dentist, a practice including 4 full-time dentists and about 12-13 hygienists. He indicates that about 18 months ago (in the Summer of 1997) a hygienist who had worked with him for many years left to spend more time with her children and he needed a hygienist who would work for two days a week with his patients. He says that he knew the Dental Hygienist from their service on the Board and also that she had recently left a position and was looking for two days of work. According to the Dentist, his practice has an Office Administrator and he suggested that the Dental Hygienist talk to this person, who does the hiring for the Practice. He advises that hiring, discipline and related personnel aspects of administration as to the Practice's employees is handled by the Administrative Officer. According to him the dental hygienists interact with the dentists only when the dentist will check the patient after the cleaning is done. He says that this limited professional relationship is his only interaction with the Dental Hygienist in the context of their private employment relationship.

In the Dental Board context, the Dentist and Dental Hygienist function as two of a fourteen member board. The Board's meetings tend to be fully attended and there are committees to which members are assigned and which make reports and submit recommendations to the full Board. The meetings tend to follow a pattern beginning with the applications committee and taking actions on licensure, specialization and related applications. Committee reports may also be presented on the budget, procedures, regulations, and the Dental Hygiene Committee. Old business tends to be a follow up on possible substantive issues such as actions relating to blood borne diseases and policy development regarding coronal polishing (as recommended by the Dental Hygiene Committee). New business is very often consideration of responses to correspondence regarding practice matters or presentations by various individuals. The open morning session is usually followed after lunch with an executive session that addresses disciplinary matters and hearings, as well as reports of the recommendations based on hearings conducted by the Office of Administrative Hearings.

Both of these members have served as Vice-President of the Board during their tenure, and the Dentist has been Chairman for one year. Also, both have served on various committees, apparently serving at the same time on the rules and regulations committee and on the ad hoc committee on blood borne diseases. The Dentist describes the Board as having good working relationships and operating in a very collegial atmosphere. The minutes tend to be straightforward reporting and if there are any significant controversies between or among the members, they do not come through in the reports of the minutes. Specific votes are seldom noted, with the minutes simply stating that "the Board decided" to take a particular position or adopt a particular policy.

The question of whether this situation presents a conflict of interest arises under the employment limitations of §15-502 of the Ethics Law. Section 15-502(b)(1) prohibits public officials (including members of boards and commissions) from being employed by or having a financial interest in an entity that is subject to the authority of their agency. Though the Dentist and Dental Hygienist are both in regulated professions and both have employment relationships (and the Dentist an ownership relationship) with regulated dental practices, these relationships are generally covered and exempted by the licensing and regulatory exemption in §15-502(c)(2) of the Law. The employment relationship with each other, however, presents additional issues under the employment impairment limitation of §15-502(b)(2), and does not in our view come within the licensing and regulatory exemption. Subsection (b)(2) prohibits officials from having any employment relationship that would impair their impartiality or independence of judgment. We have in the past interpreted this provision as applying to relationships which, though they do not entail the regulatory and contractual interactions envisioned in the strict prohibition of subsection (b)(1), involve relationships that suggest a possibility that the individuals would be unable to carry out their official duties with impartiality and independence of judgment.

In the situation here the Dental Hygienist works in a private business for the Dentist, who is another member of the Board, thus functioning in a private economic relationship where one member can impact the economic interests of the other. We have not previously provided specific advice regarding this particular type of situation and relationship. We have, however, advised regular employees having supervisory relationships in their official duties that they should not have private economic relationships.1 This advice has tended to rely on the application of the prestige provision of §15-506 of the Law in addition to the employment prohibitions. The concern has been to avoid situations where a supervisor with business relationships with another employee would use their supervisory authority to benefit the employee in order to advance the interest of the joint business.

We believe that similar kinds of concerns are presented here, where there is a private economic relationship between two individuals. Though the Dentist minimizes the nature of this relationship, the fact is that he owns (according to his most recent annual disclosure) half of the Practice, and would therefore be viewed as having the ability to significantly impact on the Dental Hygienist's private employment, notwithstanding the role played by the Office Administrator. It is recognized that the agency has in this situation provided information reflecting its belief that this Board functions collegially and that there has not been a situation where one of these members has been impacted in their Board actions by the existence of this private relationship. Also, apparently legislative audit sunset reviewers who considered the Dental Board have indicated that they found no evidence that this private employment relationship impacted on these members' Board work.

As a practical matter, however, in these types of relationships, there is an inherent potential for individuals to be influenced in their official functions by the views of others who can negatively impact on their livelihood or on their management of private businesses. Matters where actions can be impacted by these private relationships can arise at any time, and the interaction resulting from private economic relationships could significantly affect the outcome of Board considerations. In our view such relationships present a continuing potential for impairment in official action that is ongoing, difficult to manage, and almost impossible to monitor. This is particularly true in view of the sometimes competing interests of the two health professions being regulated by the Board. We therefore believe that the affiliation here is the type of private affiliation that is as a general matter intended to be prohibited by §15-502 of the Ethics Law.

Given the information provided by the agency, along with information presented that these specific individuals have not to date been impacted in their official functions by their private employer-employee relationship, it is the Commission's conclusion that prospective advice can be provided. We therefore advise that contemporaneous service on the Board by two individuals who have a private employment relationship may not continue except where, in the context of a subsequent appointment, a proper and timely Time of Appointment Exemption Disclosure is submitted by each individual and accepted by the appointing authority and by the Senate if confirmation is required.

Charles O. Monk, II, Chair,
    Dorothy R. Fait,
    Michael L. May,
    April E. Sepulveda

Date: July 9, 1999

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1 #032; See Opinion No. 85-18. Opinions published in COMAR Title 19A.