Role Of A Person On The Governing Body Of A Regulatory Entity 

Governing bodies of regulatory entities are referred to in numerous ways in various jurisdictions. Some of the most common terms are "boards" and "councils." The regulatory entity itself may be referred to as an "agency", "board", or "commission". In the United States, most regulatory entities for professions are called "boards" while in Canada, they are usually referred to as "colleges." For the purposes of this chapter, the governing bodies of regulatory entities are referred to as "boards." "Board member" has a corresponding meaning.

Boards may be arms-length from government or directly operated by it. Board members may be full or part-time. They may be public members or profession/industry members or elected by the members of the regulated profession, occupation, or industry. Regardless of the terms used to describe the aspects of these regulatory entities/boards and their members and irrespective of the jurisdictions in which they exist, they have a number of common characteristics:

• Boards are mandated to regulate the practice of a given profession/occupation or industry in the public interest. The most fundamental role for a board member is that of participating in the public interest. While different boards may use different models of governance, the basic role remains that of setting the policy direction of the regulatory body and overseeing its functioning. Board members fulfill this role by attending regular board meetings. This role involves considerable time in preparation for these meetings. For many entities, board meetings take place in the public arena, subject to the scrutiny of both practitioners and the general public. These meetings tend to be more formal in nature and follow conventionally accepted parliamentary procedures such as Robert’s Rules of Order. Many boards also use a committee structure model to carry out the work of the board. An individual board member may sit on one or more of these committees. Committees may be required by the statute (e.g. discipline committee) or may be working committees (e.g. finance) established by the board itself. It is often at the committee level where board members most actively carry out their roles. Committee meetings are usually not conducted in public and tend to be more informal in nature. Committees are responsible to the board for the work that they do. The committee does not set policy itself; rather it makes recommendations to the board, which may or may not be adopted.
• Boards set the standards for entry into a profession and assure the public that the practitioners offering services meet those standards. Individual board members contribute to this by assisting with the development of these standards in working group or committee meetings. Boards may engage in ongoing education and communication strategies to acquaint the public with these standards. Many entities have quality assurance programs and methods of assuring that practitioners meet the standards of the profession on an ongoing basis. This may or may not involve random or targeted testing on a periodic basis. There is usually some expectation that practitioners will meet a certain standard of participation in continuing education.
• They register those who are qualified. This registration usually involves issuing a certificate or license without which a person may not practice in the jurisdiction of the regulatory body. Certain information as to the status of the practitioner is available to the public. Board members may participate in the registration function by assessing prospective registrants/ licensees, determining terms and conditions, if any, to be placed on an individual’s certificate/license, and deciding appeals from individual applicants.
• Boards deal with practitioners who fail to meet the standards of practice and/or who are accused of misconduct, incompetence or incapacity. Board members may perform adjudicative functions in determining guilt and penalties with respect to practitioners and form an essential part of the system of administrative justice in a given jurisdiction. Board members serve on panels or tribunals which have the mandate to make decisions which may affect a practitioner’s ability to make a living. Their decisions may also affect the care the public can expect to receive from the profession. The seriousness of these matters makes it prudent for board members to participate in their own ongoing education with respect to the principals and practices related to the administrative justice system.

Responsibilities of Board Members

Board members have a responsibility to at least three constituencies:

• The general public. People expect that licensees/registrants will be qualified to perform properly and safely and that they will maintain a level of competence throughout their career. They have a right to expect a fair method of dealing with disputes that may arise with the practitioner. They have a right to know what’s going on within the regulatory entity.
• Potential licensees/registrants. Individuals who wish to earn their living in an occupation/profession/industry should not be denied access unreasonably. That person should have easy access to all information about entering the profession, including testing and/or practical training requirements and/or moving from another jurisdiction. There should be no unfair barriers for such persons.
• Other board members. There is a responsibility to listen to them and to respect their views and contributions. There is also a responsibility for helping to determine good policy and helpful procedures, for contributing to fair determination of problems and for helping the regulatory entity to operate most effectively and efficiently.

Consumer Rights and the Public Interest

Since the 1960’s much has been written in most democratic nations about "consumer rights." Among them are the right to safety--to be protected against harm; the right to be informed--to be protected against fraudulent, deceitful, or grossly misleading information, advertising, labeling, or other practices, and to be given the facts needed to make informed choices; to choose--to have available a variety of products and services at competitive prices; to be heard--to be assured that the public interest will receive full and sympathetic consideration in making government policy, both through laws passed by legislatures and through regulations passed by administrative entities; to education--the right to programs and information that help the public make better decisions; to redress--to work with established mechanisms to have problems corrected. Board members should keep these rights in mind when making decisions.

People often equate "the consumer interest" with the public interest. But there is a difference. Every regulatory entity has its reason for being: "To protect the health, safety, and well-being of the public." Therefore, all board members have as their primary goal the public’s interest. Just as practitioner groups are a special interest, the consumer perspective is a special interest that must be considered along with other factors when decisions are made. Working in the public interest means looking at the issues before the regulatory entity from the point of view of public protection, rather than from the point of view of the profession or of any one of the special interest groups. This means examining procedures and decisions to ensure that they encourage openness and accountability, increase the public’s safety, and do not restrict choices available to consumers. It also means being aware of the consequences of over-regulating a profession and of the need for fees for the practitioners to be reasonable. Useful information about the profession and how the public can lodge complaints and seek redress should be published in brochures and in other publications as appropriate. An aggrieved consumer needs and deserves assistance from the regulatory agency. In many instances, a suggestion of alternate dispute resolution might prove satisfactory. In more extreme instances, revocation of a license/certificate may be necessary.

Suggested Requirements for Service on Regulatory Entities

The following are suggested requirements:

1. A demonstrated interest in public service. Positions on regulatory entities involve considerable work and commitment with little or no compensation.
2. Common sense and a willingness to ask questions. Do the policies, procedures, and decisions of the regulatory entity seem sensible? If not, say so and ask for clarification. You are responsible for what goes on with your regulatory entity. You are expected to use good judgment in handling problems and making decisions.
3. A commitment to attendance. Consistent attendance is essential to keeping informed about what is going on and to providing direction and support. An individual who accepts an appointment/election to the governing body of a regulatory entity and does not take seriously the duty to be there regularly and actively, does a disservice to the entity and to the public he/she is supposed to serve. This applies to committee meetings as well.
4. Assertiveness. Respect your own rights and needs as well as those of others.
5. A willingness to become informed about the structure and resources of the regulatory entity. Find out how government works in relation to your entity and investigate other available resources. You are expected to apply the profession’s statutes, rules, and regulations in a fair, unbiased manner.
   
   

Characteristics of Effective Board Members

Effective board members have these characteristics in common:

1. They demonstrate good team skills in order to make decisions.
2. They understand and follow democratic processes.
3. They are willing to devote time and effort to the work of the governing board.
4. They work to find alternative solutions to problems whenever necessary.
5. They have good communication skills.
6. They recognize that the goal of the regulatory entity is service to and the protection of the public.
7. They are aware that authority is granted by the law to the governing body of the regulatory entity as a whole, not to any member individually. Consequently, they respect the vote of the majority of the governing members.
8. They avoid becoming involved in the day-to-day administrative functions of the regulatory entity and its staff.
9. They delay making judgments until adequate evidence is in and has been fully discussed.
10. They don’t let personal feelings toward others affect their decisions.

Participation of Public Members in Regulatory Entities

Every board member has the responsibility to regulate in the public interest rather than the interest of the profession/occupation/industry being regulated. However, public members have this as their sole purpose. Public members are not expected to be, indeed are not supposed to be technically expert or experienced in the specific occupation/profession. They are not expected to have a conflict of interest such as may be assumed for those who practice the profession. They bring their own perspectives to the deliberations of the regulatory entity.

Some possible advantages of public members on regulatory boards:

1. Reduces the potential for decisions that favor the regulated occupation/profession over the public.
2. Reduces the potential for decisions which illegitimately favor one faction of the regulated industry/profession over another.
3. Institutionalizes public participation in government decision-making.
4. Decreases public suspicion and thereby augments public confidence and trust in the regulatory entity.
5. Expands the range of skills, talent, training, and perspectives available for higher quality and more creative action.
6. Achieves a balanced discussion, including re-examination of the "givens" in any industry/occupation/profession.
7. Enables "the average citizen" to address the regulatory entity.
8. Enhances credibility respecting decisions and public advocacy.

Some possible disadvantages of public members on regulatory boards:

1. Public members may be intimidated by industry/occupation/profession members’ experience in the field.
2. Public members may impede governing activity if technical issues are not understood by lay members.
3. Split public/profession votes or conflict may polarize decision making to the detriment of the entity.
4. There may be fewer motives for participation because professional self-interest motives are lacking. Public members must be purely interested in doing "public service".

Advice to Board Members

The following are suggested responsibilities:

1. Inquiries regarding matters within the regulatory entity’s jurisdiction should be directed to the staff so that they can be processed appropriately in accordance with the policies and procedures of the entity.
2. No details of governing body activity should be released by an individual board member unless and until they become part of the public record. Details of investigations as well as informal hearings or conferences, may not be part of the public record and board members must keep such matters confidential. Where doubt exists, disclosure of such information should be made only after consultation with staff and/or legal counsel.
3. Board members are generally prohibited from conducting private meetings outside of scheduled meetings of the governing body. This means, for example, that they cannot discuss the details of a disciplinary action with the subject of the complaint or with any other members of the public or with other board members, except at a duly constituted meeting.
4. It should be remembered that board members are seen as representatives of the regulatory entity when they appear at industry or professional gatherings. They should not appear to speak for the entity unless specifically authorized to do so.
5. Board members should always be aware that actions taken individually by the member and collectively by the board are subject to scrutiny by members of the profession, the public, and the government and that actions taken, to be valid and enforceable, must be based on relevant statutes and regulations.

Resources

Sections of the "Role of the Board Member" were adapted from Effective Consumer Representation: An Orientation Manual for Board Members published by the Maryland Consumer Council, and from the Handbook for Board Members published by the Montana Dept. Of Commerce and the Board Orientation Training Manual published by the Washington Dept. Of Licensing.

COPYRIGHT 2000. Rights to copy and distribute this publication are hereby granted to members of the Council on Licensure, Enforcement and Regulation (CLEAR), providing credit is given to CLEAR and copies are not distributed for profit.