Judges: BILL LOCKYER, Attorney General
Filed Date: 8/4/1999
Status: Precedential
Modified Date: 7/5/2016
BILL LOCKYER Attorney General ROBERT L. MUKAI Deputy Attorney General
ART PULASKI has requested this office to grant leave to sue in quo warranto upon the following question:
May a person with a background in the field of management serve as the public member of the Occupational Safety and Health Standards Board?
On December 21, 1998, Defendant was reappointed to the Board as the public member and took the oath of office on January 12, 1999. Defendant continues to be president of Sopac and Associates and the owner and operator of the McCarthy Creek Ranch and the business manager of the River Valley Ranch.
The Board is comprised of seven members appointed by the Governor. Labor Code section
"There is in the Department of Industrial Relations, the Occupational Safety and Health Standards Board which consists of seven members who shall be appointed by the Governor. Two members shall be from the field of management, two members shall be from the field of labor, one member shall be from the field of occupational health, one member shall be from the field of occupational safety and one member shall be from the general public. Members representing occupational safety and health fields and the public member shall be selected from other than the fields of management or labor."
Among its various duties, the Board is responsible for adopting occupational safety and health standards and orders. (§
Section
"Initially, we note that nowhere in section 15433 has the Legislature stated that a physician and surgeon may not be representative of the public. Such conclusion may only be made by inference from the fact that, with respect to the appointees of the Senate Rules Committee, one member must be a licensed physician and surgeon, or perhaps from the fact that physicians work in health facilities. However, when the Legislature desires to exclude a member of a particular class or profession from serving as a `public member' it appears to specifically so provide. Thus, for example, a licensed physician and surgeon may not serve as a `public member' on the Board of Medical Quality Assurance, nor may a licensed barber serve in such capacity on the Barber's Board.
"Furthermore, we are not considering in section 15433 a licensing or regulatory board where it would be logical to exclude as `public members' the very persons who are being regulated. We are dealing merely with a board which will pass upon and make loans to health facilities. . . .
". . . Several instances have been discovered in various statutes where the Legislature has specifically specified that the `public member' should be someone conversant with the area or subject matter to be considered by the particular board. For example, with respect to the State Board of Examiners of Nursing Home Administrators, four of the nine board members must be actively engaged in the administration of nursing homes, and five members `shall represent the general public.' (Bus. Prof. Code, §§
3910 -3912 ) Although no board member may be an owner or supervising employee or manager of a nursing home or hospital or have a financial interest therein, `[o]ne of the public members shall be actively engaged in the practice of medicine, with a demonstrated interest in convalescent and chronic care, and one shall be actively engaged as an educator in health care administration.' (Bus. Prof. Code, §3912 , emphasis added.) The analogy between this situation and the one being considered in this opinion is remarkable. Another example may be found with respect to the Hearing Aid Dispensers Examining Committee where the law requires that one of the public members `shall be a licensed physician and surgeon specializing in treatment of the diseases of the ear . . . and another public member shall be an audiologist." (Bus. Prof. Code, §3320 )" (Id., at pp. 687-688, fn. omitted.)
We noted in our 1981 opinion the following examples of situations where the Legislature excluded members of a particular class or profession from serving as a public member of a state board or committee:
"Business and Professions Code, sections
1602 (Board of Dental Examiners); 2077 (Board of Medical Quality Assurance); 2702 (Board of Nurse Examiners); 2842 (Board of Vocational Nurse and Psychiatric Technicians Examiners); 2923 (Psychology Examining Committee, Board of Medical Quality Assurance); 3011 (Board of Optometry); 4001 (Board of Pharmacy); 4801 (Board of Examiners in Veterinary Medicine); 5514 (Board of Architectural Examiners); 5620 (Board of Landscape Architects); 6013.5 (State Bar); 6501 (Board of Barber Examiners); 6711 (Board of Registration for Professional Engineers); 7002 (Contractors' State License Board); 7302 (Board of Cosmetology); 7602 (Board of Funeral Directors and Embalmers); 8521 (Structural Pest Control Board); 9626 (Cemetery Board)." (Id., at p. 687, fn. 5.)
While some of these statutory provisions have changed since our 1981 opinion, the Legislature has currently excluded particular classes of persons from serving as public members on a variety of boards and commissions. (See, e.g., §
Returning to the requirements of section
In the present circumstances, Defendant was chosen from the field of management in 1994 and had the same management background in 1998 when she was chosen as the public member upon completion of her term as a member from the field of management.
We believe substantial questions of fact and law exist concerning whether Defendant qualified as a person "other than from the fields of management or labor" at the time she was reappointed to the Board in 1998.
Accordingly, the application for leave to sue in quo warranto is GRANTED.