April 21, 1997 Civil Division-Kent County (739-7641) Carol Ellis, Director Division of Professional Regulation 861 Silver Lake Boulevard, Suite 203 Dover, Delaware 19901 Dear Ms. Ellis: You have requested the opinion of this office on the question of the status of a public member of the Board of Medical Practice to continue to hold office as a Board member. You indicate that a presently serving public Board member has a son who is completing his medical education in New Jersey. The son is presently a surgical resident in New Jersey and holds a permit from that state authorizing the holder of such permit to engage in the practice of medicine or podiatry in the second year of a graduate medical education program in medicine or podiatry. Your question is prompted because of the provision of 24 Del. C. § 1710(b) which concerns the qualifications for public members of the Board of Medical Practice and which provides for five public members of the Board and then provides in pertinent part:
Said public members shall not be or ever have been licensed in any health-related field, shall not be a member of the immediate family of someone licensed in any health-related field, shall not be employed by a company engaged in a directly health-related business, and shall not have a material financial interest in the providing of goods and services to persons engaged in the practice of medicine. (Emphasis added).
A son or daughter would be viewed as a member of the "immediate family" for purposes of determining the qualifications for public members of the Board of Medical Practice. In Delaware, children, either natural or adopted, are viewed as a "close relative" for purposes of judging the conduct of state officers and employees. 29 Del. C. § 5804(1). As to the issue of whether a permit to practice in New Jersey equates with being "licensed in any health-related field," the fact that New Jersey may distinguish between a "license" to practice medicine and a more limited "permit" to practice medicine which is given to medical students while in the second year or beyond of a graduate medical education program in medicine or podiatry in the State of New Jersey should not be viewed as controlling in any determination of eligibility for public Board member status in Delaware. Even if the New Jersey permit is viewed as only a restricted or limited authority to practice medicine, it is, nevertheless a "license" within the context of the Delaware Code. The equivalent authority in Delaware for the New Jersey "permit" to practice medicine would be the granting of a certificate to practice medicine under 24 Del. C. § 1725(a)(2) in what is commonly referred to as an "institutional license." The term "licensed" in the statute is not expressly limited to
licensure "within the State of Delaware," and given the purpose of the restriction, which is obviously to insure that public members not be connected to or associated with the health care industry, any such limited construction of the term "licensed" would be strained, overly restrictive, and inappropriate. Assuming that the present situation is one which would disqualify an individual from initial appointment to the Board, the question becomes one of the status of an individual, presumably properly appointed, who subsequently comes under such a disqualification. Stated differently, does the occurrence of the disqualifying event necessarily or automatically result in the removal of the public member from the office or is further action required? The answer to this question for this Board is that the disqualifying event does not automatically effect the removal of the Board member nor, for that matter, does it mean that his acts done under the color of authority can be challenged. See Commonwealth of Kentucky ex rel. Breckinridge v. Winstead, et al., 430 S.W.2d 647 (1968). The individual in such circumstances is viewed as at least a de facto officer. A de facto officer is one whose title to an office is not good in law but who is in fact in the unobstructed possession of his office and is discharging its duties in full view of the public in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. State v. Pack, Del. Super., 188 A.2d 524 (1963). The fact that the Board member may have been validly appointed and that the disability has occurred subsequent to a valid appointment is not material in this situation since the statute specifies the prohibition in terms that a public member ". . . may not be nor ever have been . . ." (emphasis added). Therefore, under the statute as it presently exists, when any of the prohibited conditions occur, the public member becomes ineligible to be a public member, and while such a Board member would serve as a de facto officer until ousted, once the right of such officer to serve is questioned, the probable result seems clear that service as a public board member must terminate unless the disability can be removed. State v. Pack, supra. Members of the Board of Medical Practice are appointed by and subject to removal for cause from office by the Governor who may also fill vacancies on the Board. 24 Del. C. § 1710(g). When a duly appointed Board member becomes disqualified from further service because of the occurrence of a limiting event and does not otherwise vacate the office, the appointing authority has cause to effect the removal of the individual who is no longer qualified and provide for his or her replacement by filling the resultant vacancy. Should you have additional questions concerning this matter, please do not hesitate to let us know. Very truly yours, Michael M. Tischer Deputy Attorney General Malcolm S. Cobin Assistant State Solicitor Approved: Michael J. Rich State Solicitor
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