BILL ANALYSIS
AB 2104
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 2104 (Hayashi) - As Amended: April 8, 2010
SUBJECT : California State Board of Pharmacy.
SUMMARY : Requires the Governor to appoint a person exempt from
civil service as the Board of Pharmacy's (BOP) executive officer
(EO), requires BOP to submit and receive prior approval from the
Department of Consumer Affairs (DCA) for all state legislation
BOP seeks to sponsor, support, or oppose, and requires BOP board
members (members) to disclose ex-parte communications, as
specified. Specifically, this bill :
1)Requires BOP to submit to DCA and receive prior approval for
every piece of state legislation the board seeks to sponsor,
support, or oppose. Requires BOP to resubmit and receive
subsequent approval from DCA on the same legislation after any
substantive amendments.
2)Requires a member who, acting in his or her official capacity,
engages in an ex- parte communication with a person with an
interest in a matter before BOP to disclose that communication
in one of the following ways:
a) The member or the other person makes public the ex-parte
communication by providing a full report to the EO, or, if
the communication occurs within 7 days of the next board
meeting or hearing, to BOP on the record of the proceeding
of that meeting or hearing; or,
b) When two or more members receive substantially the same
written communication or oral communication from the same
party on the same matter, one of the members must fully
disclose the communication on behalf of the other member or
members, and must request in writing that it be placed in
BOP's official hearing or meeting record.
3)Requires the EO to place in the public record any report of an
ex-parte communication.
4)States that communications are no longer considered ex-parte
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communications when fully disclosed and placed in BOP's
minutes, as specified.
5)Requires BOP to promulgate regulations providing requirements
for reporting of ex-parte communications and appropriate
sanctions for noncompliance with any rule proscribing ex-parte
communications. The regulation shall provide that reportable
communications shall be reported by the board member or person
with an interest before the board, whether the communication
was initiated by the person or the board member, and that the
report shall include all of the following information:
a) The date, time, and location of the communication, and
whether it was oral, written, or a combination;
b) The identity of the recipient and the person initiating
the communication, as well as the identity of any persons
present during the communication; and,
c) A brief description of the interested person's, but not
the member's, communication and its content, to which shall
be attached a copy of any written material or text used
during the communication.
6)Defines "ex-parte communication" as any oral or written
communication between a member and a person with an interest
in a matter before BOP, concerning substantive but not
procedural issues, that does not occur in a public hearing,
workshop, or other public proceeding, or on the official
record of the proceeding on the matter and falls into one of
the following categories:
a) The communication occurs in a meeting or other
conference, including telephone calls, that begins at a
scheduled time;
b) The communication is in writing, including electronic
mail or text messages;
c) The communication occurs on calendar days when BOP has a
scheduled meeting or hearing;
d) The communication qualifies as an additional ex-parte
communication, as may be defined by BOP regulation; or,
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e) The communication is by or from any agent, officer, or
employee of a licensee or any agent, officer, or employee
of any civic, environmental, neighborhood, business,
consumer, labor, trade, or similar organization.
7)Defines "person with an interest," as:
a) Any agent, officer, or employee of a licensee, or a
person receiving consideration for representing the
licensee, or a participant in the proceeding on any matter
before BOP who intends to influence the decision of a
member on a matter before BOP;
b) Any agent, officer, or employee of any civic,
environmental, neighborhood, business, consumer, labor,
trade, or similar organization who intends to influence the
decision of a member on a matter before BOP;
c) Any person with a financial interest, as specified, in a
matter before BOP, or an agent, officer, or employee of the
person with a financial interest, or a person receiving
consideration for representing the person with a financial
interest who intends to influence the decision of a member
on a matter before BOP; or,
d) A consumer or licensee representing him or herself who
intends to influence the decision of a member on a matter
before BOP.
EXISTING LAW :
1)Provides for the licensure and regulation of the practice of
pharmacy by BOP within the DCA.
2)Provides that BOP is comprised of 13 members, 11 appointed by
the Governor, and one member each appointed by the Senate
Committee on Rules and the Speaker of the Assembly.
3)Authorizes BOP to appoint a person exempt from civil service
designated as the EO who performs the duties delegated by BOP.
Under existing law, EO may or may not be a member of BOP, as
determined by BOP.
4)Prohibits any board from submitting to the Legislature any
fiscal impact analyses relating to legislation pending before
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the Legislature until the analysis has been submitted to the
Director of DCA for review and comment.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author's office, "I am
concerned about the relationship between BOP and the entities
they are supposed to regulate. BOP's mission is to 'protect and
promote the health and safety of Californians by pursuing the
highest quality of pharmacist's care and the appropriate use of
pharmaceuticals through education, communication, licensing,
legislation, regulation, and enforcement.' However, they have
sponsored several bills in the recent past that do not place the
consumer's interest first. We believe this bill will help BOP
renew its commitment to ordinary Californians."
Background . Currently, BOP selects its own EO, and the Governor
appoints DCA bureau chiefs. All boards and bureaus are
requested to submit sponsored legislation for DCA review, but
are not required to do so. BOP has not submitted its
legislative package in the past, according to DCA.
All boards and bureaus must abide by current laws prohibiting
ex-parte communications during the administrative disciplinary
process. Current law states, "While the proceeding is pending
there shall be no communication, direct or indirect, regarding
any issue in the proceeding, to the presiding officer from an
employee or representative of an agency that is a party or from
an interested person outside the agency, without notice and
opportunity for all parties to participate in the
communication." The Central Valley Flood Protection Board is
required to report all ex-parte communications.
This bill requires the Governor to appoint a person exempt from
civil service as BOP's EO, and requires BOP to submit and
receive prior approval from DCA for all state legislation BOP
seeks to sponsor, support, or oppose.
This bill additionally states that a member who is acting in his
or her official capacity and engages in an ex-parte
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communication with a person with an interest in a matter before
BOP must disclose that communication, as specified. Opposition
to this bill is concerned that the communications disclosures
will impact pharmacist members' ability to communicate with
their employers on a day-to-day basis. However, this bill
clearly states that disclosures are only required when the
individual is acting in his or her member capacity, which has no
reason to occur in an ordinary employment situation.
Arguments in support . The California Nurses Association writes,
"Recently, BOP sponsored several bills that advantaged the
pharmacy industry without benefit to consumers, and there have
been concerns of undue industry influence in the BOP. These
actions present a clear conflict of interest for the BOP with
its regulatory role and mission to protect the health and safety
of Californians. This bill will ensure a degree of professional
distance between the BOP and its managing administrative officer
by allowing the Governor to appoint the EO.
"Further, by requiring reporting of all ex-parte communications
with individuals having business before the board, AB 2104 will
guarantee that the BOP is truly working on behalf of all
Californians. Also, by requiring the DCA to review all
legislation the BOP wishes to sponsor, support, or oppose, the
BOP will have a fresh perspective on legislation impacting
consumers and be better insulated from undue influence peddling
by the regulated community."
Arguments in opposition . California Retailers Association (CRA)
writes, "AB 2104 proposes to enact provisions that would
undermine and impact BOP's independence from DCA. Specifically,
the sections that permit the Governor to appoint the BOP's EO
and require the BOP to obtain DCA approval on all board
sponsored, supported or opposed legislation and subsequent
amendments would allow DCA to manage the activities of the
board. As such, AB 2104 represents a significant departure from
the widely accepted view that healing arts boards be allowed to
fulfill their missions without interference from the political
pressures exerted by the Administration.
"Additionally, CRA members are very concerned with provisions in
AB 2104 that would require Board members ? to inform the BOP of
all communications they have with individuals on matters of
interest to the Board. This requirement is unprecedented and
completely impractical, as it mandates the active pharmacist
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board members to disclose all communications made and received
during the course of their employment. This is problematic as
pharmacist board members would be required to disclose
information that may be proprietary or could otherwise
compromise their employers' competitive advantages."
Previous legislation . SB 963 (Ridley-Thomas), Chapter 385,
Statutes of 2008 extended the sunset date on seven boards until
January 1, 2011, and established a sunset date of January 1,
2013 for the Bureau for Private and Postsecondary Education. A
previous version of the bill required DCA boards and bureaus to
disclose all ex-parte communications. This provision was later
removed.
SB 523 (Kopp), Chapter 938, Statutes of 1995 revised procedures
for administrative adjudications in state agencies, including
requiring the disclosure of ex-parte communications in specified
situations.
REGISTERED SUPPORT / OPPOSITION :
Support
California Labor Federation, AFL-CIO
California Nurses Association
Opposition
California Retailers Association
Analysis Prepared by : Sarah Weaver / B.,P. & C.P. / (916)
319-3301