Council on Licensure, Enforcement and Regulation Ethics Workshop 2006 Annual Conference Alexandria, Virginia

Ethical Decision Making

Relating to moral action, conduct, motive or character; Professionally right or befitting. Ethics Defined

Ethics in Public Service The public generally seeks and expects from government officials and employees higher standards than they expect elsewhere.

Ethics in Public Service “Where a man assumes a public trust, he should consider himself a public property.” Thomas Jefferson

Generally, when “conflict of interest” is used to suggest disqualification of a public official, the term refers to a clash between public interest and the private economic interest of the individual concerned. Conflict of Interest

There must not be an appearance of impropriety or conflict on the part of public officials which would allow one’s integrity to be questioned. A public official must consider public perception when determining possible conflicts of interest or when navigating ethical issues. Conflict of Interest

Ethics in Public Service “Government is a trust, and officers of the government are trustees; and both the trust and the trustees are created for the benefit of the people.” Henry Clay

Personal Qualities Fundamentally Ethical Integrity Credibility Accountability

Making an Ethical Choice Gather as much background information as possible. Make sure you fully understand the circumstances. Do not jump to conclusions. Decide what options you have. Decide what decisions have to be made. Review all relevant statutes and agency or state policies.

Determine the Consequences You must remember to take into account the good or bad consequences, not just for yourself, your board,or your agency but for all affected persons, especially the public. Determine the short-term implications. Determine the long-term implications.

Make your Decision Accept responsibility for the choice you make and live with it. Your goal is to make a good choice with the information available. Learn from the experience.

Principle Parties Identify stakeholders in the decision Identify the beliefs / values of stakeholders Consider relationships between parties Consider your role in the relationship pattern Guide to Ethical Decision-Making

Factual Data What is the evidence What is the most recent evidence What is the most reliable evidence Sort rhetoric from fact Admit ignorance / uncertainty Guide to Ethical Decision-Making

Ethical Principles Individual / societal benefit BeneficenceNon-maleficencePaternalism/MaternalismHonestyLawfulnessAutonomyJusticeRights Guide to Ethical Decision-Making

Values and Beliefs Examine personal beliefs and values Develop awareness of suppositions, presumptions and convictions Consciously affirm or reject/adopt new ones Realize that personal beliefs and values may differ from principle stakeholders Guide to Ethical Decision-Making

Extrinsic Factors SocialSocial LegalLegal EconomicEconomic InstitutionalInstitutional MediaMedia

Remember!!! “Fine public service and good government rely first and foremost on good people with the character, cause, and courage to do the right thing.” (Lewis) You make ethical decisions on a daily basis - in both your professional and personal life - just be able to look at yourself in the mirror the next day.

Resources Lewis, Carol W. The Ethics Challenge in Public Service, Federation of Associations of Regulatory Boards (FARB) Model Code of Ethics for Members of Regulatory Boards for the Licensed Professions, The Dartnell Corporation, Getting Along, Black’s Law Dictionary

Scenarios

Scenario Number 1 A Board member has missed 3 out of the last 4 meetings. This member is very good when she is present at the Board meetings and offers many valuable comments and suggestions on licensing and disciplinary matters. She also carries a lot of influence in the State. What information do you need and what is the Board’s possible course(s) of action?

Scenario Number 2 An investigator wants to purchase a new house. An appraisal is conducted and a value is given. The investigator finds out that the appraiser's value matches the sale price of the house. The price is favorable to the investigator in order for the purchase to take place. The investigator finds out that the appraiser selected only data that complements the contract sale price and/or analyzed data in a manner to purposely support the contract sale price and ignored data that would have changed the appraisal amount to be lower. The appraiser failed to develop an opinion of value objectively. What does the investigator do in this situation?

Scenario Number 3 You are asked to speak at a trade association conference and the association gives you something in recognition of your speaking, i.e. flowers, gift certificate, or a free dinner. Do you accept? What if the association only offers to give you a gift? What if the gift is a plaque in recognition of your speaking at the conference? Does it make a difference if you are a Board member, staff member, or agency head?

Scenario Number 4 Through their interaction over the years, the Board’s prosecuting Counsel has become friendly with a Board member. The Board member has been kind enough to meet with the Counsel on several occasions when the Counsel needed an explanation of technical aspects of the field of practice. Whenever the board has conducted disciplinary hearings, the Counsel has enjoyed the Board member’s banter about baseball during the breaks. On this occasion, Counsel is cross-examining a licensee during a disciplinary hearing. During a break, the Counsel visits the men's room. The Board member, who is presiding over the hearing, follows behind him, and when the door closes, the Board Member hands Counsel a piece of paper and whispers "ask the licensee these questions." What should Counsel do?

Scenario Number 5 A member of the Board has just been elected to an office that creates policy for the National Membership Association. This member wants to continue on the Board and feels she will be able to recognize when there is a conflict of interest. Should Board members seek to be officers in their local, regional, or national trade associations? What if the Board member is asked to run as a candidate? What if the Board member is asked to serve on a committee that may be in conflict with the goals of her own Board or Agency?

Scenario Number 6 A Contractor entered into a contract for window replacements with an elderly homeowner. The price was $9, which was a gross overpricing of the material and work based on other jobs in the area. The homeowner filed a complaint with the Board for Contractors for poor workmanship and refused to pay the contractor until corrections were made. The case had little merit regarding regulatory violations, especially in light of the fact that the homeowner signed the contract. The contractor voiced his intention to sue the homeowner for the entire amount of the contract. Should the Investigator talk to the homeowner about the over-pricing? Should the Investigator discuss the pricing with the contractor?

Scenario Number 7 A member of the Board for Medicine tells the Board Administrator information that is perceived to be controversial and asks that the Board Administrator not repeat the information, especially to the Agency Director? What should the Board Administrator say to the Board member? What if the Board member is the Board chair? What if this item is brought up at the next Board meeting?

Scenario Number 8 Last night's evening news ran a big story on a Dentist’s misconduct and stated that the agency received 10 complaints against the Dentist over a year ago, and has yet to act. The Agency Head asks Board Counsel when the Board intends to address the Dentist’s case. Counsel says the Board is meeting the next day but has a calendar full with other urgent matters. The Agency Head orders Counsel and the Board Administrator to put the case on their calendar for the next day's meeting. The Investigator hastily gathers the few bits of evidence they have had the opportunity to collect and presents them at the Board meeting. The Board asks the Investigator to conduct further investigation and report to them at their next meeting, one month later. The Agency Head walks into Counsel's office after the meeting and asks for a report. When Counsel says that the matter will be addressed in one month, the Agency Head barks "we can't wait that long! Just go ahead and issue an Order to Show Cause now. We'll plug in the facts later.” What does Counsel and the Board Administrator do?

Scenario Number 9 A Board member is at a professional trade association meeting where association members begin complaining about some of the actions of the Licensure Board. The members of the association want a meeting with the Board member to discuss the issues. What should be the actions by the Board member and by the Licensure Board?

Scenario Number 10 An Investigative Supervisor is in charge of investigators who investigate complaints against real estate licensees. The Supervisor has submitted the necessary paperwork requesting that she be listed as an officer in her husband's real estate firm. Any conflict? What if the Supervisor carries a caseload herself and investigates complaints against real estate licensees? What if a complaint is received against the husband's firm? What if the Supervisor wants to become a real estate licensee and work on the weekends?

Scenario Number 11 An administrative assistant in the Investigations Division of the Board of Public Accountancy requests a meeting with the Executive Director (ED). As a matter of courtesy, the ED notifies the Division Director of the request and that she will brief him on the meeting content afterward. During the meeting, the administrative assistant indicates that she has uncovered what appears to be a pattern of cases being settled by intervention with the Division Director just hours before the case is scheduled to be heard. All of the cases were investigated by other staff who were not allowed to participate in the pre-hearing conferences. The chatter among the investigators is that “there is something funny going on here,” but they are afraid to say anything. What does the ED do next?

Scenario Number 12 Two Assistant Attorney Generals are assigned to the Department of Regulatory Licensing. One lawyer is counsel for the Agency and one lawyer is counsel to the Boards. What if the Agency receives legal advice in conflict with legal advice received by the Boards? What if Board counsel is senior to the Agency counsel? Should one Assistant Attorney General serves as counsel to both the Agency and the Boards?

Scenario Number 13 The Physical Therapy Board is holding a hearing in the matter of the incompetent practice by a registered Physical Therapist. The evidence is clearly painting a picture of a practitioner putting clients at risk. During a break in the proceedings, the Board Member mentions to the Executive Director that he really can’t put his finger on it, but there is just something unpleasantly familiar to him about the Respondent Therapist. The “aha” phenomenon strikes and the Board Member says, “ Oh yes, I remember now, so and so told me some years ago that he thought Respondent Therapist was dipping into illegal drugs.” What actions should the Board Member and/or the Executive Director take?

Scenario Number 14 The Executive Director (ED) of the Board of Healing Arts is orienting 2 new Board appointees to the office layout. When they reach the workroom, they are surprised to find the ED’s secretary working with the Board President copying what is obviously a mailing to the Board President’s professional practice client list regarding an increase in his fee schedule. In response to the ED’s question of “what’s going on?”, the Board President dutifully explains that the ED’s secretary had graciously been doing his mailings since he was elected President of the Board 2 years ago and he certainly did appreciate the quality of her work. As the ED, what do you say to the Board member and what do you do?

Scenario Number 15 Board counsel is sitting with the Board of Massage Therapists as they hear a report from their investigator on a practice violation by a Licensee. When the report is done, Counsel suggests that the Board refer the case to a prosecutor, and set some parameters for possible settlement terms because similar violations have been settled in the past by putting the licensee on probation. The Board Chair opens the discussion by saying that makes sense. But then one member of the Board says he thinks they ought to be tougher and that they have gone too easy in allowing those others off with just probation, and suggests that the facts in this case warrant a suspension of the license. Counsel knows that the Board member has an office in competition with the Licensee only one-half mile from the Licensee. What should Board Counsel do?

Scenario Number 16 Your State has a very large population of French speaking individuals and many an area where French is the primary language. There is a request that the licensure Board’s examination be given in French. What information do you need and what is the Board’s and/or Agency’s possible course(s) of action?

Scenario Number 17 An Investigator for the Board of Animal Control is finishing a fact finding meeting with a Respondent in an illegal importation of exotic animals case, when the Respondent states, “I ran into your brother-in-law the other day, and mentioned this meeting. He asked me to share something with you … his conglomerate of international pet stores makes 70% of its sales in the exotic animal market and he thought you’d be interested in knowing that.” What does the Investigator say in response to the Respondent? What does the Investigator do?

Scenario Number 18 The Executive Director of the Land Surveyors Board receives an invitation from a staff member of a state legislator (who chairs the Business and Occupations Committee) to join her for lunch. During the lunch, the staff member mentions a piece of legislation submitted by the agency. She says that her boss does not support the legislation, although the Governor does. During the remainder of the lunch, there is no further mention of the bill; rather, the conversation is light and centers on the upcoming college basketball season. What now?

Questions or Comments?

Thank You!

Scenario Number A A licensee is disciplined and licensure status removed by State A. The individual is also licensed in State B. Can State B discipline the licensee predicated upon the disciplinary action in State A? How about based upon the actions that occurred in State A? If so, what potential sanctions are available to State B? Double jeopardy?

Scenario Number B The local media, under the Freedom of Information Act, requests the results of the examination scores of applicants for licensure (both successful and unsuccessful candidates) for the last five years. What information is available to the public? Media? Other practitioners? What information is not subject to disclosure?

Scenario Number C A complainant brings to the attention of the Board certain wrongful acts of a practitioner, which occurred over ten years ago. Should/can these alleged events be investigated? Should administrative prosecution occur if merited? How do boards address passage of time issues?

Scenario Number D A candidate has appealed the decision he should be given extra time and a separate room because of his diagnosis of Paranoid Schizophrenia. As you are reviewing the case, it is noted that the psychiatrist has indicated that this individual is having trouble with his medication and is at times unstable. What information do you need and what is the Board’s possible course(s) of action?

Scenario Number E The Board revokes the license of a practitioner and is desirous of prohibiting the individual from ever practicing again with the state? Can this be done? How are applications for reinstatement handled? During the time of revocation, what are the obligations of the Board to ensure the individual does not practice the profession?

In President John F. Kennedy’s message to Congress on April 27, 1961, he stated, “The ultimate answer to ethical problems in government is honest people in a good ethical environment...there can be no dissent from the principle that all officials must act with unwavering integrity, absolute impartiality, and complete devotion to the public interest. This principle must be followed not only in reality but in appearance.” Ethics

“Nowhere in the Constitution of the United States, or the Declaration of Independence, or the Bill of Rights…do you find the words ‘economy’ or ‘efficiency’…You discover other words like honesty, integrity, fairness…and many others which describe what human beings ought to be. These are the same words which describe what a government of human beings ought to be.” President Jimmy Carter Ethics

“It’s not really complicated. It’s a question of knowing right from wrong, avoiding conflicts of interest, bending over backwards to see that there’s not even a perception of conflict of interest.” President George H. Bush Ethics