Who gets to have a conflict of interest? The case for doing a little surgery on the Texas Medical Board

The Dallas Morning News has done an interesting story on the Texas Medical Board and physician misconduct. The News has been looking at this issue for seven years and there continue to be signs of problems. There’s very little serious investigative journalism going on these days and I appreciate the DMN for doing some research.

The question for those of us in political science is how to create institutions that guard the public interest. The Texas Medical Board is a state agency charged with regulating the practice of medicine in the state. Board members are appointed to six-year terms by the governor (subject to confirmation by the Texas Senate). Texas law specifies that the board is composed of 19 members, 12 physicians and 7 “public” members.  Specifically, the law specifically calls for “twelve members who are learned and eminent physicians licensed in this state for at least three years before the appointment, nine of whom must be graduates of a reputable medical school or college with a degree of doctor of medicine (M.D.) and three of whom must be graduates of a reputable medical school or college with a degree of doctor of osteopathic medicine (D.O).” You can not be a public member of the board if you or your spouse is a health care provider or if you have a similar conflict of interest.

So, by law the Board is dominated by doctors. You can argue about whether or not that is a bad thing. However, it is a sharp contrast from teachers who are barred from being appointed to the Texas Higher Education Coordinating Board or elected to the State Board of Education. Section 7.103 Texas Texas Education Code specifies: “A person is not eligible for election to or service on the board [SBOE] if the person holds an office with this state or any political subdivision of this state.” According to an Attorney General’s opinion issued in 1982 that will include public school teachers and faculty members at state universities.

Going beyond barring eligibility for service, § 7.108. of Texas Education Code states that “person engaged in manufacturing, shipping, selling, or advertising textbooks or otherwise connected with the textbook business commits  an offense if the person makes or authorizes a political  contribution to or takes part in, directly or indirectly, the  campaign of any person seeking election to or serving on the board [State Board of Education].” As far as I know our textbook is not being considered for use in Texas public schools. However, it certainly could be and I am engaged in the “textbook business.” So, I can not give money or volunteer for a SBOE candidate. For educators, the language of the law about conflict of interest is very restrictive.

It seems very odd to me to legally preclude citizens from electing an educator to the State Board of Education. It would be one thing for the Legislature to check executive power by restricting a governor’s appointment powers.  However, legislating a restriction on the choices voters have is a check on democratic power rather than executive power. In this case Legislature has decided to define conflict of interest for voters rather than letting them decide for themselves. I’m not aware of similar restrictions on elective offices.

In Federalist #10, James Madison said, “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” In Texas, conflict of interest is mandated in one case and outlawed in another. The Texas Medical Board does benefit from the insights of experienced doctors. However, citizens must feel confident that professional judgment isn’t trumped by  personal interest and that the oversight of the state’s doctors is as concerned with patients’ health as doctors’ interests.

I don’t see why the TMB couldn’t get by with fewer doctors and more public members. Governors are not going to nominate citizens who are hostile to doctors and public board members would certainly listen to the opinions of the medical professionals on the Board. With a TMB weighted toward public membership, Texans could fee more confident that conflicts of interest could be check and that the balance of power favored the public interest.

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