Board composition: We are all public members

Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB.
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Counsel's column

Social work board members must understand and accept their roles as public protectors.

At ASWB New Board Member Training sessions, the composition of state and provincial boards is often discussed. It is important that regulators understand the basics of social work board composition and why boards are populated with a combination of professional members (licensees in the profession) and public members (individuals who are not members of the profession). The ASWB Model Social Work Practice Act contains the following language:

Section 202. Membership. The Board shall consist of _______ members, [_______ of whom shall be a representative of the public, and the remainder] [each] of whom shall be social workers who possess the qualifications specified in Section 203. The Board shall at all times be comprised of at least one Baccalaureate Social Worker, Master’s Social Worker, and Clinical Social Worker.

Section 203. Qualifications.
(a) Each social worker member of the Board shall at all times as a Board member:
(1) Be a resident of this state;
(2) Be currently licensed and in good standing to engage in the practice of social work in this state;
(3) At the time of appointment, have been actively engaged in the practice of social work, for at least one (1) out of the last five (5) years; and
(4) Have at least three (3) years of experience in the practice of social work.
(b) Public member(s) of the Board shall be residents of this state who have attained the age of majority and shall not be, nor shall ever have been a Baccalaureate Social Worker, Master’s Social Worker or Clinical Social Worker, or the spouse thereof, or a person who has ever had any material financial interest in the provision of social work services or who has engaged in any activity directly related to the practice of social work.

First and foremost, social work boards are populated in a way that is consistent with the plain meaning and intent of the governing statutes. So the simple answer to the question of why social work boards are populated as they are is that the statute dictates the composition. For example, the statute might say, “The board shall be comprised of seven members, five of whom shall be licensed social workers in good standing and two of whom shall be public members as defined.” As in the ASWB Model Social Work Practice Act, there may be additional requirements that licensee members must have been actively engaged in the practice for a defined number of years. The more complex answer to why social work boards are populated with both licensees and public members is that the legislatures enact statutes with such intent.

To address why social work regulatory boards include licensees and public members, it is important to understand the broad purpose for which any profession is regulated. Social work boards are statutorily created and given the authority to carry out the intent of the practice act. The practice act establishes the parameters encompassing the authority of the social work board. That authority is based on a government regulatory structure intended to protect the public and consumers of social work services. The public, incidentally, includes not only consumers of services, but applicants, licensees, academics, tradespeople, and related professionals.

The public is inclusive of not only consumers of services, but applicants, licensees, academics, tradespeople, and related professionals.

Why populate boards with licensees of the regulated profession in addition to public members? Board members with expertise in the profession are needed to promulgate rules that add specificity to the generic scope established in the statutes. These rules are complex and are the linchpin to adequately and clearly identifying what is and is not within the scope.In fairness to both licensees and laypersons, the scope must be clear and understandable to hold persons accountable to the mandates of licensure and the profession itself. Because the government requires licensure as a prerequisite to lawful practice, the defined scope must be understandable. Unclear language in either the statutes, rules, or both will lead to confusion and challenges to the regulatory structure under principles of fairness or due process. Licensees bring knowledge and experience to the boards and help the board clarify the scope of practice.

Public members bring a valuable check and balance to administrative regulatory systems by providing the public and consumer perspectives to the process. As defined above, public members generally have no affiliation with the profession either personally or through close relationships with family members. Most social work regulatory boards have at least one public member while many boards have multiple public members.

One question that is always relevant is whether the licensee members of the board can separate their professional perspectives from their public protection perspectives. This separation is a very difficult concept, especially for licensee board members who have been (or are currently) involved in the professional association.

As readers know, professional associations advocate for the profession and engage in lobbying and attempts to influence government. Failure to recognize the distinctions between the purposes of regulatory and professional organizations can have significant legal, practical, and political consequences. Indeed, some licensees seek appointment to the social work board with the intention of promoting the profession. This attitude resulted in antitrust litigation ultimately decided by the United States Supreme Court in the North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S. 494 (2015). In that case, the court held that immunity from the antitrust laws in professional regulation is premised upon a clearly articulated intent of the statutes to displace competition and sufficient oversight by the government of these regulatory boards.

In the wake of this ruling, state legislatures have grappled with concerns that licensees serving on government boards present antitrust hazards. Some legislatures have considered or have already enacted changes to the regulatory board composition to decrease the number of licensees and increase the number of public members, even to the point of eliminating licensee members entirely. There are advantages and disadvantages of taking these steps.

The expertise and efficiency of the regulatory process is essential to a well-administered licensure system. In a sense, all regulators are public members, but some bring social work expertise to the table. ASWB programs and services also assist in the effectiveness and efficiencies of social work regulation.