STATE OF ALABAMA

ETHICS COMMISSIONMAILING ADDRESS

P.O. BOX 4840

MONTGOMERY, AL

36103-4840

STREET ADDRESS

RSAUNION

100 NORTH UNION STREET

SUITE 104

MONTGOMERY, AL 36104COMMISSIONERSJeny L. Fielding, Ret. Sr. Circuit Judge, ChairFrank C. "Butch" Ellis, Jr., Esq. Vice ChairJames Jeny Wood, Esq.Stewart Hill Tankersley, M.D.Charles Price, Ret. Circuit Judge

Thomas B. AlbrittonExecutive Director

August 3, 2016

TELEPHONE (334) 242-2997FAX (334) 242-0248

WEB SITE: www.ethics.alabama.gov

ADVISORY OPINION NO. 2016-21

Ms. Susan F. Wilhelm, Esq.Executive Director and General CounselBoard of Dental Examiners of Alabama5346 Stadium Trace ParkwayHoover, Alabama 35244-4583

Conflict Of Interest/Members And Staff OfThe Board Of Dental Examiners OfAlabama Receiving Free EducationalOpportunities

Members of the Board of Dental Examinerswho are required to be licensed andpracticing dentists or dental hygienists, mayreceive a tuition waiver from DOCSEDUCA TION to attend this proposedcontinuing education program when theBoard members' attendance is in furtheranceof their administrative obligation todetermine whether that particular class is incompliance with their educationalrequirements, on the condition that theyreceive no continuing education creditthemselves, nor are allowed to use thecourse for permitting purposes, and as longas it is not offered as an opportunity tocorruptly influence official action.

Dear Ms. Wilhelm:

The Alabama Ethics Commission is in receipt of your request for a formal AdvisoryOpinion of this Commission, and this opinion is rendered pursuant to that request.

Ms. Susan F. Wilhelm, Esq.Advisory Opinion No. 2016-21Page Two

QUESTION PRESENTED

May the members of the Board of Dental Examiners of Alabama, who are required toobtain continuing education credits, receive free educational opportunities by virtue of theirposition on the Board or employment with the Board?

FACTS AND ANALYSIS

The facts as have been presented to this Commission are as follows:

The job of the Board of Dental Examiners of Alabama is to protect the health, safety andwelfare ofthe public through the regulation of dentistry and dental hygiene in the State ofAlabama. The Board of Dental Examiners is made up of six practicing dentists and one dentalhygienist.

The Alabama Dental Practice Act requires that all Board members be currently licenseddentists, or in the case of the hygiene member, licensed as a dental hygienist. The Boardmembers must be actively engaged in the practice of dentistry or dental hygiene during theirterms of service on the Board of Dental Examiners. These Board members, themselves, mustsatisfy the Board's continuing education requirements.

Effective October 1,2016, dentists must have 20 hours of continuing education andhygienists must have 12 hours of continuing education. The Board of Dental Examinersapproves courses for which applicable credit can be received. Administrative Rule 270-X-4.04states, in addition, "The Board of Dental Examiners of Alabama shall have the right to monitoror audit any course or program to determine whether that course or program is in compliancewith these rules."

Board of Dental Examiners rules require that any practicing dentist who intends to offerOral Conscious Sedation (OCS) must receive 16 hours of training in Oral Sedation beforeadministering Oral Conscious Sedation and being permitted in its use.

Pursuant to Ala. Code §§ 34-9-60 - 65 and §§ 34-9-81 - 90 (1975), as well as theirAdministrative Rules, the Board of Dental Examiners issues permits for General Anesthesia,Parenteral Sedations (intravenous), and Oral Conscious Sedation. To qualify for any of thesepermits, a dentist must have completed an appropriate educational course in addition to his or herdegree from an accredited school of dentistry. The Board is exploring whether the currentpermitting requirements remain appropriate and best suited to ensure the safe administration ofsedation to dental patients. Without these permits, a dentist is not permitted to administerGeneral Anesthesia, Parenteral Sedation or Oral Conscious Sedation.

Ms. Susan F. Wilhelm, Esq.Advisory Opinion No. 2016-21Page Three

DOCS EDUCATION, a national education company, is offering an educational seminarwhich provides Oral Sedation training. DOCS has offered to waive the standard $2,700.00tuition fee for the Board members. They are offering this waiver to every Board of DentalExaminers in several states, but this waiver is not extended to all practicing dentists. The Boardis generally familiar with the DOCS' course, as they currently accept it for initial OCSpermitting. Based on her best recollection, Ms. Wilhelm states that the most recent Boardmember taking the course took it 10 years ago. Other than that, it's been over 20 years since therest of the members of the Board took an OCS course. Their desire to audit the course stemsfrom the need to insure the current course is appropriate for future acceptance and the possibilityof requiring dental licensees holding OCS permits to take "refresher" or remediation courses.DOCS' motivation in waiving the tuition for this event is to encourage the Board members toattend the seminar so as to familiarize the Board with DOCS' curriculum, etc. in order to gainBoard approval for future educational seminars.

The Board acknowledges that this course would normally be eligible for application tothe Board members' continuing educational requirements and as a basis for their own permittingto administer Oral Conscious Sedation.

DOCS provides educational programs across the United States. DOCS EDUCATION isnot registered with the Alabama Ethics Commission as a principal in the State of Alabama andhas confirmed in writing that they do not retain lobbyists anywhere in the country. DOCS has nobusiness before the Board of Dental Examiners and has had no business before the Board ofDental Examiners.

The Board agrees to institute a policy that any educational hours provided under this orany other waiver would not be valid for application by Board members to their annual continuingeducation requirement or for permitting. The Board has discussed the matter and proposes that ifa member were cleared to audit the program free of charge, they would request a voidedcertificate from the provider. This voided certificate would be placed in the Board member'slicensing file with a cover note stating that the attached course hours were invalid for permittingand/or the licensee's required continuing education hours. The Board of Dental Examiners hasbeen discussing this issue for some time, and it is currently on the agenda for their Augustmeeting for final adoption and the Board seeks the Ethics Commission's guidance.

The Board of Dental Examiners requests the opinion of the Ethics Commission only as towhether Board members may accept a tuition waiver for this educational course offered to themin their capacity as Board members of the State agency. The members of the Board of DentalExaminers are "public officials" under Ala. Code § 36-25-1 (27). See also, Ala. Code § 34-9-43(b )("The Board in exercising its power and duties shall adhere to the guidelines andproceedings of the State Ethics Commission as provided in Chapter 25 of Title 36 ... ").

Ms. Susan F. Wilhelm, Esq.Advisory Opinion No. 2016-21Page Four

Under Ala. Code § 36-25-5(a), "No public official or public employee shall use or causeto be used his or her official position or office to obtain personal gain for himself..." Ala.Code §36-25-7 prohibits the offering or acceptance of any thing, regardless of whether or not the thingoffered is a thing of value, if the purpose is to corruptly influence official action.

The Board has recognized these limitations and that understanding motivated theirproposed policy. Moreover, the ability to audit "any" courses (without limitation as to location)to determine whether the course is in compliance with the Board's educational requirements isspecifically provided for by administrative rule.

CONCLUSION

Members of the Board of Dental Examiners, who are required to be licensed andpracticing dentists or dental hygienists, may receive a tuition waiver from DOCS EDUCATIONto attend this proposed continuing education program when the Board members' attendance is infurtherance of their administrative obligation to determine whether that particular class is incompliance with their educational requirements, on the condition that they receive no continuingeducation credit themselves, nor are allowed to use the course for permitting purposes, and aslong as it is not offered as an opportunity to corruptly influence official action.

AUTHORITY

By 4-0 vote of the Alabama Ethics Commission on August 3, 2016.

rry L. Fielding, Ret. S . Circuit JudgeChairAlabama Ethics Commission