Briefing Report: Does Public Protection Require A Public Majority?

A Look at Public vs. Professional Membership on State Regulatory Boards
Wednesday, March 30, 2011

Introduction

The Canadian politician, Marcel Masse once said, "[T]he more the world is specialized the more it will be run by generalists." This could not be truer than when looking at California's regulatory boards. California is the most regulated state in the nation, requiring licenses for 177 job categories. 1 These licensed occupations are overseen by regulatory bodies designed to essentially "police" the profession. While some may think that in order to regulate a profession, a person must have some knowledge of that industry, many of the occupational licensing boards under the Department of Consumer Affairs (DCA) are becoming increasingly comprised of members of the public who, rather than bringing clinical and professional expertise to the board, are bringing a more general public perspective to these bodies.

Who is Regulating What and Why?

Regulatory boards are made up of both public and professional members. The primary purpose of licensing boards is to promote the public welfare and regulate the profession. A board carries out this purpose by ensuring that the public is served by competent and honest practitioners and by establishing minimum standards of proficiency in the regulated professions by examining, licensing, regulating and disciplining practitioners of those professions.

As such, public members take on the overarching role of representing the interests of the public at large. Public members are not expected to be, indeed, are not supposed to be, a technical expert or experienced in the licensed occupation. Their appointment to the board is designed to provide a unique public perspective on licensing and enforcement. In fact, state law specifically prohibits public members on boards from being "too closely identified" with the regulated profession.

Professional members also have a particular role in making available their professional expertise to the discussions and decisions of the regulatory body they serve on. Professional members are necessary in order to properly represent and provide technical expertise for the profession on the board.

The Balancing Act

Board composition has been a hot topic lately, as consumer groups push for more public representation, while professional associations struggle to hold on to spots for industry representation. As a general rule, supporters of public member majority boards believe that no one should be in a position to make government decisions affecting the trade/profession he/she practices. They feel that any regulatory system directly under the control of a profession it is designed to discipline is a conflict of interest.

Many argue that having a public member majority underscores the public nature of state licensing boards, thereby ensuring that consumer protection is increased. Since any regulatory program's primary purpose is to protect the public, increasing the public's representation is a way to assure that the professions' interests do not outweigh what is in the best interest of the public.

Many are concerned, however, that when steps are taken to increase public representation at the expense of a professional perspective, there could be harm to the public as a result of losing technical expertise.

Legislature Sides with Public Majority Boards

For more than a decade the Legislature has slowly whittled away at board membership, reducing the number of professional board members and replacing them with members of the public. Some of the more notable changes include:

  • AB 253 (Eng, Ch. 678, Stats. of 2007) reduced the membership of the Medical Board of California (MBC) from 21 to 15 members, increasing the public member representation on the board.

  • SB 248 (Figueroa, Ch. 659, Stats. of 2005) changed the composition of the Acupuncture Board from 9 members (5 professional, 4 public) to 7 members (3 professional, 4 public). When SB 248 was moving through the Assembly, the Department of Consumer Affairs sent a letter to the Assembly Business & Professions Committee stating that the administration was taking an "oppose unless amended" position on all board and commission sunset bills, and requesting that all boards be reconstituted to become public member majorities. 2

  • AB 270 (Correa, Ch. 231, Stats. of 2002) made California the first state in the nation to have a public-member majority on the Board of Accountancy.

  • SB 827 (Greene, Ch. 759, Stats. of 1997) changed the composition of the Board of Registered Nursing, Board of Vocational Nurse and Psychiatric Technician Examiners, Board of Pharmacy, Board of Architectural Examiners, and the Veterinary Medical Board to allow for more public representation on the boards.

There are currently 12 boards and bureaus under the Department of Consumer Affairs that have a public member majority. They include the following: Athletic Commission, Board of Accountancy, Board of Acupuncture, Board of Behavioral Sciences, Contractors State License Board, Court Reporters Board, Board of Professional Engineers and Land Surveyors, and Geologists, Board of Guide Dogs for the Blind, Board of Occupational Therapy, Board of Optometry, Professional Fiduciaries Bureau, and the Board of Vocational Nursing and Psychiatric Technicians.

Recently, the reestablishment of the sunset review process has led to the issuance of the following recommendations, which, if enacted, will further diminish professional representation on state regulatory bodies:

  • During the oversight hearing for the Office of Real Estate Appraisers (OREA), the Senate Business, Professions & Economic Development Committee recommended that the Committee consider establishing the OREA as an independent board of Real Estate Appraisers appointed by the Governor and the Legislature, composed of licensed real estate appraisers and members of the public to prevent any influence of the real estate industry and having a public member majority. 3

  • During the oversight hearing for the Department of Real Estate (DRE), the Senate Business, Professions & Economic Development Committee recommended that consideration be given to establishing a new Real Estate Advisory Commissionwith a public member majority to advise the Commissioner and give policy input to the DRE, the Administration and the Legislature. 4

  • During the oversight hearing for the Dental Board of California (DBC), the Senate Business, Professions & Economic Development Committee recommended that the composition of DBC should be changed to include more public members. 5

Board Composition Not Without Challenges

While the concept of public members is very important and can be very beneficial, some boards, like the Speech-Language Pathology and Audiology Board (SLPAB), have found that, "…it has been difficult to engage our current SLPAB's public members in activities. Given the relatively esoteric nature of the SLPAB's professions, this is understandable." 6 The SLPAB is composed of nine members: 3 speech-language pathologists; 3 audiologists; and 3 public members, one of which is a licensed physician and surgeon, board certified in otolaryngology. With regard to the public member positions on the board, the SLPAB believes that, "[ I]t may be more difficult to find individuals who have experiences with our services."

Over the years, the Dental Board of California (DBC) has echoed a similar sentiment. The DBC has stated in years past that, "…attendance of public members at board meetings is poor, and their efforts to understand the issues have been extremely inconsistent." 6 The Dental Board of California, like many other regulatory boards, has responsibilities that many would argue require professional knowledge, including approving schools, approving continuing education curriculum, making the final determination on enforcement issues, and identifying emerging trends and practice issues in the state in order to protect the public.

Some feel that public board members do not devote enough time to deal with the complexities of the industry they are charged with regulating. This perceived lack of commitment by public members puts greater workload on the professional members and can restrict the ability of the board to perform its duties because of workload and/or lack of a quorum. In addition, when public members are appointed to a board, the boards often need to spend time actively educating the public members about the factors important to the profession because they do not always possess the knowledge necessary to regulate licensees within the industry. The knowledge gap can be especially problematic for Boards in more complex, risk-laden sectors like healthcare.

So Now What?

The Legislature will continue to look at board composition in the coming year. As the Legislature considers proposals to increase public representation on regulatory boards, it is important to remember that the public and the profession benefit from the subject matter expertise provided by members who are also professional licensees.

While broad perspectives are important in deliberation and decision-making, expertise and interest in the profession should not be sacrificed to attain diversity in perspectives.

1 Summers, Adam. "Occupational Licensing: Ranking the States and Exploring Alternatives." Reason Foundation. August 2007.
2 Assembly Business & Professions Committee Analysis of SB 248 (Figueroa). 2005-06 Legislative Session.
3 Senate Business, Professions & Economic Development Committee. Background Paper for the Office of Real Estate Appraisers. Oversight Hearing. 7 March 2011.
4 Senate Business, Professions & Economic Development Committee. Background Paper for the Department of Real Estate. Oversight Hearing. 7 March 2011.
5 Senate Business, Professions & Economic Development Committee. Background Paper for the Dental Board of California. Oversight Hearing. 14 March 2011.
6 California Speech-Language Pathology and Audiology Board. Sunset Review Report. 2006.

 

For more information on this report or other Business, Professions & Economic Development issues , contact Amber Alexander, Senate Republican Office of Policy at 916/651-1501.