Can you see the conflict?

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Conflicts of interest and bias issues are relevant in virtually all decisions made by regulatory boards, including rulemaking, policy decisions, and recognition of certain programs. Board members must always be aware of and sensitive to issues of conflict of interest and bias. While we as individuals address conflict of interest issues on a regular basis, this article will focus on the importance of recognizing and addressing legal issues in a government regulatory setting.

Counsel's column

photograph of Dale Atkinson
Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB.

Before focusing on conflicts in a government regulatory setting, defining some relevant terms and phrases is in order. Generally, conflict of interest refers to a matter whereby the concerns or aims of two parties are incompatible. This incompatibility leads to the need for discussion, debate, and ultimate compromise if resolution is to be achieved. Notice the above definition identifies two parties. In the government regulation arena, conflict of interest specifically relates to one person who may have conflicting interests that may or may not be apparent. Somehow, these conflicting interests may have to be reconciled.

Another term in need of definition is bias. Generally, bias refers to prejudice in favor of or against one thing, person, or group compared with another. Introducing bias into decision-making will likely result in an allegation of unfairness in the process. Allegations of unfairness can vary from simple expression of disgruntlement with the process (and, perhaps decision) right through to formal legal challenges.

It is fundamental that a government-issued social work license creates a property interest in that license. Further, based on the statutory schemes, government has mandated that one must possess a duly issued license to lawfully engage in the practice of social work. There are criminal and administrative consequences to noncompliance. The issuance and renewal of that social work license are premised upon satisfaction of criteria set in law, including components related to education, examination, and experience. The law is enacted to provide uniformity to the criteria, and the social work board administers the licensure process for all applicants.

The involvement of government in a mandated licensure process triggers constitutional protections for all parties involved in the process, including applicants, licensees, complainants, and board members and staff. These constitutional protections afford procedural and substantive due process to the affected party. In the context of administrative adverse action proceedings, due process involves providing the licensee/respondent with the right to notice of the charges, the right to respond and be heard, and the right to a fair and impartial decision-making body. It is in the fair and impartial decision-making body where conflict of interest and bias become relevant and can implicate legal issues and challenges.

The concepts of perceived bias and conflict of interest principles remain critical to social work boards and their important public protection mandates.

Although distinguished above, the remainder of this article will use the term bias as the encompassing reference to both conflict of interest and bias. If necessary, specific reference to either conflict of interest or bias will be noted. Allegations of bias can be cited as actual bias or perceived bias. Furthermore, bias can challenge an individual board member (or staff member), as well as be alleged against the board as a whole. Numerous cases have addressed these varying scopes of bias. Regulators must understand that the presumption is that board/staff members are impartial and can and will be objective in the decision-making process. The burden to establish bias is on the party challenging the impartiality of the board and board/staff members.

A case of bias

In 1973, the Supreme Court of the United States (SCOTUS) in Gibson v Berryhill, 411 U.S. 564 (1973) found that perceived bias on the part of the Alabama Board of Optometry (Board) as a whole was sufficient to render that board unable to make licensure revocation decisions for a series of hearings. While based upon unique facts, the Gibson decision remains instructive today. The Board determined that licensed optometrists were prohibited by statute from being employed by corporate entities, namely Lee Optical. At that time, approximately 50 percent of Alabama licensed optometrists were employed by corporate entities. Thus, the Board was facing the potential sanctioning of one-half of the licensees in Alabama.

The Alabama Optometric Association (Association) filed the initial complaint against these corporate-employed optometrists. At that time, membership in the Association was limited to independent practitioners; that is, those not employed by corporate entities. Further, to be eligible to serve on the Board, one had to be a member of the Association. Thus, the composition of the Board was limited to and composed entirely of optometrists who worked independently.

Optometrists employed by Lee Optical filed litigation in federal court seeking an injunction prohibiting the Board from proceeding on the administrative hearings against the corporate-employed optometrists. There were many procedural aspects to the case, but ultimately the federal district court issued an injunction in favor of the optometrists, enjoining the Board from conducting the administrative hearings. The district court did not consider the existence of actual bias on the part of the Board members; rather, it considered “whether in the natural course of events there was an indication of a possible temptation to an average man sitting as a judge to try the case with bias for or against any issue presented to him.”

The district court cited two major factors that supported the conclusions of perceived bias: First, the Board served as both the prosecutor and judge in these administrative licensure actions; and second, the removal of one-half of the optometrists from practice would result in economic gain to the Board members in the form of additional business. As stated, the “members of the Board and other private practitioners would fall heir to this business.” Consequently, the district court found that the possibility (or perception) of bias as substantiated by the factors cited above required the entry of an injunction enjoining the administrative proceedings. This bias infringed on the constitutionally established due process rights to be afforded to the respondents—namely, a fair and impartial decision-making body.

The matter was appealed to SCOTUS, which upheld the findings of the district court. In affirming, SCOTUS held that “[s]ince the Board was composed solely of private practitioners and the corporate employees it sought to bar from practice constituted half of the optometrists in the State, the District Court was warranted in concluding that the Board members’ pecuniary interest disqualified them from passing on the issues.” The injunction was lifted because a separate state court ruling found that the Alabama law did not prohibit optometrists from being employed by corporate entities. But in the end, the Gibson opinion establishes that the perception of bias, under certain circumstances, may infringe on due process rights in administrative settings.

The unique nature of the facts of the Gibson case may not be as relevant in today’s regulatory arena. However, the concepts of perceived bias and conflict of interest principles remain critical to social work boards and their important public protection mandates. Individual, social worker, and societal pressures related to numerous factors and movements will want to influence administrative decision-making. Board members are asked to separate their social worker licensee mentality from their regulator roles as members of state and provincial regulatory bodies. As is emphasized at the ASWB New Board Member Training sessions, “You are not social workers who are regulators, you are regulators who are social workers.”