ADVISORY OPINION NO. 2001-EC-005
Issued August 17, 2001

ISSUE: Whether it would be permissible for a person who has been appointed to serve on the Arkansas State Board of Dental Examiners to apply for and accept a position of employment with the Arkansas Department of Health?

BRIEF ANSWER: Yes.  The statutes under the Commission’s jurisdiction do not contain a general prohibition against a member of a state board accepting a position of employment in state government and none of the restrictions which Subchapter 10 of Title 21, Chapter 8 of the Arkansas Code places on members of state boards are applicable on the facts presented.  However, Governor’s Executive Order 98-04 and the rules and regulations promulgated by the Department of Finance and Administration for the enforcement and administration of said order should be reviewed to determine their applicability.

DISCUSSION:
The Ethics Commission has received a written request for an advisory opinion from Jan Blancett, who has been appointed to serve on the Arkansas State Board of Dental Examiners.  In her advisory opinion request, Ms. Blancett asks whether it would be permissible for her to apply for and accept a position of employment with the Arkansas Department of Health.

The Arkansas State Board of Dental Examiners is authorized by statute to license dentists and dental hygienists, to register dental corporations, and to issue certain permits to dentists, dental hygienists, and dental assistants.  The Board disciplines its licensees and permit holders if there has been a violation of the Dental Practice Act, the Dental Corporation Act, or the Board’s Rules and Regulations.

The Board is composed of nine (9) members appointed by the Governor for terms of five (5) years.  Each member of the Board receives one hundred dollars ($100) per day for each day of attendance at regular or special meetings or while on any proper business of the Board.

Ms. Blancett has indicated that she is interested in applying for a position of employment with the Arkansas Department of Health.  The position in question is that of Program Director in the office of oral health.  According to Ms. Blancett, the position is administrative in nature and is funded by a grant from the Centers for Disease Control and Prevention.

In reviewing the statutes under its jurisdiction, the Commission has concluded that there is no general prohibition against a member of a state board accepting a position of employment in state government.  The Commission notes, however, that Subchapter 10 of Title 21, Chapter 8 of the Arkansas Code places certain restrictions on members of state boards.

Under that subchapter, a member of a state board is prohibited from: (i) voting on, influencing, or attempting to influence an official decision if the member has a pecuniary interest in the matter under consideration by the board;[1] (ii) participating in any discussion or vote on a rule or regulation that exclusively benefits the member;[2] (iii) using or attempting to use his or her official position to secure unwarranted privileges or exemptions for himself or herself or others;[3] and (iv) disclosing confidential information acquired by him or her in the course of the member’s official duties, or using such information to further his or her personal interests.[4]

It is the Commission’s understanding that the Arkansas State Board of Dental Examiners plays no role in the hiring decisions of the Arkansas Department of Health and that members of the Arkansas State Board of Dental Examiners are not in a position to exert any influence or control over such decisions.  On those facts, it is the Commission’s opinion that the statutes under its jurisdiction would not prohibit a member of the Arkansas State Board of Dental Examiners from accepting a position of employment with the Arkansas Department of Health.

It must be mentioned, however, that Governor’s Executive Order 98-04 appears to be applicable to the facts presented.  The Commission lacks jurisdiction over said order but notes that the Department of Finance and Administration has promulgated a set of rules and regulations for the enforcement and administration of same.

This advisory opinion is issued by the Commission pursuant to Ark. Code Ann. § 7-6-217(g)(2).


Graham F. Sloan
Director


[1] Ark. Code Ann. § 21-8-1001(a)(1)

[2] Ark. Code Ann. § 21-8-1001(b)

[3] Ark. Code Ann. § 21-8-1002

[4] Ark. Code Ann. § 21-8-1003