Could the spouse of a Louisiana Board of Pharmacy investigator serve on that board?

Plain-English summary

A state senator asked whether a person married to a Louisiana Board of Pharmacy investigator could serve on that board. The attorney general's office found no statute that expressly barred the arrangement. Even so, it recommended that the prospective member's name be withdrawn from the board election through proper procedures.

The office focused on two problems. First, the Administrative Procedure Act restricted communications between a board member deciding a case and an employee performing investigative work. Spouses might discuss cases outside the hearing, creating an appearance that a board decision was influenced by information the parties never had a chance to address. The office said repeated recusals could leave the board effectively short one member and require temporary replacements. Second, it considered the board member's role in setting the investigator spouse's salary or deciding whether to replace that investigator an inherent budget conflict.

The opinion expressed a recommendation based on those concerns. It did not identify a statute making the marriage itself a disqualification.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Pharmacy board officials at the time

The office advised the Board of Pharmacy to have the prospective member's name withdrawn from the election through proper procedures. Its reason was the risk to fair adjudication and the inherent budget conflict, despite finding no express statutory ban on a spouse's board service.

Licensees appearing before the board at the time

The opinion said a licensee who lost an adjudication could appeal to district court and might challenge a decision on the ground that an investigator had communicated privately with a spouse who sat on the board. It did not say that any such communication had actually occurred.

Common questions

Q: Did Louisiana law in 1998 automatically forbid an investigator's spouse from joining the Pharmacy Board?
A: The attorney general's office said it could find no statute expressly prohibiting that arrangement. Its recommendation to withdraw rested on fairness and conflict concerns.

Q: Why did the office object if it found no statutory ban?
A: It was concerned that a board member might learn about an investigation from a spouse outside the hearing, affecting the appearance of fairness. It also saw a conflict if the member participated in decisions about the spouse's salary or continued employment.

Q: Could recusal alone solve the problem, according to the opinion?
A: The opinion said the board member might have to recuse from every case the investigator spouse worked on. It warned that repeated recusals could leave the board with, in effect, a part-time member, and noted the temporary appointment process under La. R.S. 49:960B.

Background and statutory framework

The request arose before a late-March 1998 election for a Pharmacy Board seat. La. R.S. 49:960, as discussed in the opinion, prohibited specified private communications between an adjudicative board member and an employee carrying out investigative functions. The office drew on decisions emphasizing separation of investigative and decision-making roles and the appearance of fairness in public hearings.

The opinion also noted that, under La. R.S. 49:960B, the governor would appoint a temporary member to sit when a board member recused. For salary and staffing decisions involving the investigator spouse, the office described an inherent conflict of interest. These points led it to recommend withdrawal through proper election procedures.

Citations and references

• La. R.S. 49:960 (Administrative Procedure Act separation of functions)
• La. R.S. 49:960B (temporary replacement after recusal, as described in the opinion)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/98-0123

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

One American Place
301 Main Street, Suite 600
DEPARTMENT OF JUSTICE
P.O. Box 94005
CIVIL DIVISION
TEL.: (504) 342-7013
BATON ROUGE
FAX: (504) 342-2090

RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

March 18, 1998

OPINION No. 98-123

63-B LICENSING - For professions or occupations 64 - 2 LOUISIANA ADMINISTRATIVE PROCEDURE ACT 86 - PHARMACY - State Board of

Honorable Craig F. Romero La. R.S. 49:960 State Senator
District 22
The jurisprudence has consistently held that it is essential that the appearance
of fairness be evident in all adjudicatory matters. This element, together with an
P. O. Drawer 12539
inherent conflict of interest in budgetary matters, leads this office to conclude
New Iberia, LA 70562-2539 that the Board of Pharmacy should err on the side of caution by having the specific Board member’s name withdrawn from the election, while employing proper procedures to do so.
Dear Senator Romero:

This correspondence shall serve to acknowledge this office’s receipt of your March 3, 1998 request for an expedited opinion regarding certain elections for a Louisiana Board of Pharmacy seat with said elections to be held in late March of this year.

Specifically, you inquire whether there is any law which would prohibit the spouse of investigator, the latter of whom is employed by the Louisiana Board of Pharmacy, from serving as a member of the Board of Pharmacy.

While this office is unable to locate any statute which prohibits such an arrangement, we wish to call to your attention a provision in the Administrative Procedure Act, specifically 49:960, which prohibits ex parte communications between a fact finder, (in your case, a Board member) and any employee or agent of the Board engaged in the performance of investigative functions.

Even though it is conceivable that the prospective Board member and the investigator’s spouse could actually refrain from ever discussing any matter which the inspector has investigated, the appearance of impropriety is quite apparent. It is fact of life that most or many spouses confide in each other regarding confidential matters which occur at the workplace. It is difficult to presume that the investigator spouse would never discuss a single case which he or she has investigated on behalf of the Board of Pharmacy with his or her spouse.

If the Board member has to recuse himself or herself from every investigation in which his or her spouse participated, the subject Board could find itself operating at distinct disadvantage by having in actuality only a part-time Board member. (Upon recusal of a

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Honorable Craig F. Romero
State Senator
OPINION No. 98-123
Page 2

Board member, under the provisions of La. R.S. 49:960B, the Governor would have to appoint a pro-temp member to sit in the recused member’s seat). If the Board member spouse did not recuse himself or herself and a decision was rendered after an adjudication contrary to a licensee, the licensee certainly has the option of appealing to the district court, and one of the grounds for such an appeal could anticipated to be a challenge that ex parte communications occurred between the investigator and his/her spouse Board member.

The Louisiana Supreme Court made it very clear in Allen vs. Louisiana Board of Denistry, 543 So.2d 908 (La. 1989) that there must be separation of functions between the adjudicatory body (the Board members) and the investigatory and prosecutorial aspects of an adjudication. The Court in Allen also discussed "the crucial appearance of fairness" which must attach to all public hearing adjudications.

During the course of investigation, an investigator may learn of allegations which the prosecution is unable prove to the Board. It is quite conceivable that the investigator might disclose some of these unprovable allegations to his or her spouse. If this were the case, the Board member would began the adjudicatory process with a preconceived notion or bias which was prohibited by the Court. In The Matter of Rollins Environmental Service, Inc. 481 So.2d 113. 120 (La. 1985)

The appearance of the fairness and the absence of a probability of outside influence on the adjudicatory process is required by due process. Utica Packing Company vs. Block, 781 F.2d 71, 77 (6th Cir. 1986). Because a license is a property right, a licensee can not be deprived of property without due process of law. U.S. Const. Amend. XlV, Section 1, La. Const. Art. 1, Section 2.

In budgetary matters, we are of the opinion that the spouse Board member would have an inherent conflict of interest in determining the salary of his or her investigator spouse. Additionally, if the Board determined that it wanted to replace the spouse investigator with another investigator, the Board member would be faced with a conflict of interest there also.

In conclusion, the jurisprudence has consistently held that it is essential that the appearance of fairness be evident in all adjudicatory matters. This element, together with an inherent conflict of interest in budgetary matters, leads this office to conclude

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Honorable Craig F. Romero
State Senator
OPINION No. 98-123
Page 3

that the Board of Pharmacy should err on the side of caution by having the specific Board member’s name withdrawn from the election, while employing proper procedures to do so.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

By:
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Assistant Attorney General

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