Advisory Opinion No. 2011-27

Re: Michael Fine, MD

QUESTION PRESENTED

The Petitioner, the Medical Director of the Rhode Island Department of Corrections, a state employee position, who is currently serving as the Interim Director of the Rhode Island Department of Health, requests an advisory opinion regarding how to manage and avoid potential conflicts of interest given his personal interests in other health care facilities and charities.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the proposed recusal procedures set forth by the Petitioner, the Medical Director of the Rhode Island Department of Corrections, a state employee position, who is currently serving as the Interim Director of the Rhode Island Department of Health, are both reasonable and sufficient to avoid potential conflicts of interest given his personal interests in other health care facilities and charities located in Rhode Island.

The Petitioner is currently serving as the Interim Director of the Rhode Island Department of Health (“DOH”). In his private capacity, the Petitioner is a physician who has been and is currently affiliated with various health care organizations and charities in Rhode Island. He informs that as Interim Director of DOH, he is the chair of the Rhode Island Medical Licensure Board, the state agency that oversees licensing and disciplinary actions for physicians. He also states that DOH is responsible for licensing of all other health care professionals and health care facilities in the state, including hospitals and clinics. He represents that licensure is overseen by a DOH Associate Director, who is his immediate subordinate.

The Petitioner informs that until accepting the position of Interim Director, he was the Managing Director of Rhode Island Family Physicians’ Access Alliance, LLC d/b/a Health AccessRI (“Health AccessRI”), a for-profit company that provided primary health care to economically disadvantaged people. He explains that while DOH is not responsible for licensing the facility itself, DOH is responsible for licensing the physicians who are in member-practices of Health AccessRI.

The Petitioner also informs that in 2008, he and his wife sold their financial interest in Hillside Avenue Family and Community Medicine, LLC (“Hillside”). He advises that the terms of the sale agreement provide for a fixed monthly buyout payment to him and his wife; such payments are not dependent on the profitability of Hillside in general, but will cease in the event that the practice becomes insolvent. Similar to Health AccessRI, DOH is not responsible for licensing the facility itself, but is responsible for licensing the physicians who practice at Hillside.

Additionally, the Petitioner represents that he is affiliated with four health-related charitable organizations (collectively “charitable organizations”). The first charitable organization is Crossroads Rhode Island (“Crossroads”), a homeless service organization, where he is an Executive Board Member and Chair of the Health Services Committee. Of particular relevance to his DOH position, he states that DOH licenses the health center housed at Crossroads. The second organization is the Rhode Island Academy of Family Physicians, of which he is a member; it is the state’s affiliate of the largest primary care physician organization in the United States. He advises that DOH licenses the physician members of Rhode Island Academy of Family Physicians. The third organization is the Scituate Health Alliance, which provides local, accessible and affordable health care to the residents of Scituate; the Petitioner is a Vice President. He informs that DOH not only licenses the health care professionals at the Scituate Health Alliance, but also supplies vaccines. The final organization is the Jewish Family Service, Inc., which provides social services within the framework of Jewish tradition and values, where he is a Board Member. He represents that DOH licenses the health professionals practicing at this organization.

To avoid any conflicts of interest arising from his new public role and his former and current health care related affiliations, the Petitioner has proposed to take the following steps for the duration of his service as Interim Director. First, with respect to his interest in Health AccessRI, he represents that he will place his membership interests in a blind trust, thereby suspending his voting and investment power. Second, the Petitioner states that he will recuse himself from any matters relating to the licensure and discipline of the health professionals affiliated with Health AccessRI, Hillside, and the four charitable organizations. He informs that he will delegate such decisions to his direct superior, the Secretary of the Executive Office of Health and Human Services (“EOHHS”). Third, he represents that he will similarly recuse from any facility licensing decisions relating to Health AccessRI, Hillside, and the four charitable organizations, similarly delegating his authority up the chain of command to the Secretary of EOHHS.

Pursuant to the Code of Ethics, a public official may not participate in any matter in which he has an interest, financial or otherwise, that is in substantial conflict with the proper discharge of his duties or employment in the public interest. R.I. Gen. Laws § 36-14-5(a). An official will have an interest in substantial conflict with his official duties if it is reasonably foreseeable that a “direct monetary gain” or a “direct monetary loss” will accrue, by reason of his official activity, to the official, a family member, a business associate, an employer or any business which the public official represents. Section 36-14-7(a); Commission Regulation 36-14-6001. Furthermore, a public official may not use his public office or confidential information received through his office to obtain financial gain, other than that provided by law, for himself, his family members, his employer or any business associate. Section 36-14-5(d). Finally, a public official must recuse from participating in his agency’s consideration of a matter in which his business associate represents itself. Section 36-14-5(f).

A business is defined as “a sole proprietorship, partnership, firm, corporation, holding company, joint stock company, receivership, trust or any other entity recognized in law through which business for profit or not for profit is conducted.” Section 36-14-2(2). A business associate is defined as “a person joined together with another person to achieve a common financial objective.” Section 36-14-2(3). A person is defined as “an individual or a business entity.” Section 36-14-2(7). The Commission has previously concluded that public officials are “business associates” of entities for which they serve either as members of the Board of Directors or in other leadership positions that permit them to affect the financial objectives of the organization. A.O. 2008-35 (opining that a member of the Tiverton Zoning Board of Review was not a business associate of the Tiverton Land Trust, because although she was a member, she was not on the Board of Directors, an officer, or in any type of leadership position; therefore there was not need for her to recuse from the Zoning Board’s discussion and voting on the Land Trust’s petition for a variance); see also A.O. 98-76 (opining that a member of the Narragansett Town Council may not participate in matters concerning the Narragansett Chamber of Commerce given that she serves on its Board of Directors).

The Commission has previously encountered the inevitable conflicts faced by the appointment of a Rhode Island licensed medical professional to the position of authority within DOH; thus, the appointment by its very nature puts a doctor in charge of licensing other doctors, other medical professionals, and medical facilities. For example, in Advisory Opinion 2005-14 the Acting Director of DOH, who was also a medical doctor, sought advice from the Ethics Commission as to how to manage potential conflicts of interest given that his spouse was a Rhode Island licensed practicing physician and was an employee of an entity that had current and potentially future contracts with DOH. There, the Commission approved the petitioner’s offer to recuse from any licensing matters regarding his wife or health care facilities where his wife practiced and any contracts involving his wife’s business associates, deferring any matters up the chain of command to the Director of EOHHS. A.O. 2005-14. Similarly, in Advisory Opinion 2004-29, the Chief Administrative Officer of the Rhode Island Board of Medical Licensure and Discipline, who was also a medical doctor, was required by the Code of Ethics to recuse from any official action regarding the licensure or discipline of any of his business associates and his spouse.

In the present matter, the Commission will not examine the nature of the Petitioner’s business relationship with each of the above named entities and its respective health professionals, given the Petitioner’s plans to recuse on all licensing matters related to Health AccessRI, Hillside, and the charitable organizations. It is the opinion of the Ethics Commission that the Petitioner’s proposed steps to avoid conflicts of interest are sufficient to insulate him from conflicts of interest while serving as the Interim Director of DOH. Notice of recusal should be filed in accordance with section 36-14-6.

Code Citations:

§ 36-14-2(2)

§ 36-14-2(3)

§ 36-14-2(7)

§ 36-14-5(a)

§ 36-14-5(d)

§ 36-14-5(f)

§ 36-14-6

§ 36-14-7(a)

Commission Regulation 36-14-6001

Related Advisory Opinions:

A.O. 2008-35

A.O. 2005-14

A.O. 2004-29

A.O. 98-76

Keywords:

Business Associate

Recusal