April 21, 1997

Civil Division-Kent County (739-7641)

Carol Ellis, Director
Division of Professional Regulation
861 Silver Lake Boulevard, Suite 203
Dover, Delaware 19901

Dear Ms. Ellis:

You have requested the opinion of this office on the question of
the status of a public member of the Board of Medical Practice to
continue to hold office as a Board member.

You indicate that a presently serving public Board member has a
son who is completing his medical education in New Jersey. The
son is presently a surgical resident in New Jersey and holds a
permit from that state authorizing the holder of such permit to
engage in the practice of medicine or podiatry in the second year
of a graduate medical education program in medicine or podiatry.

Your question is prompted because of the provision of 24 Del. C.
§ 1710(b) which concerns the qualifications for public members of
the Board of Medical Practice and which provides for five public
members of the Board and then provides in pertinent part:

Said public members shall not be or ever have been licensed in any health-related field, shall not be a member of the immediate family of someone licensed in any health-related field, shall not be employed by a company engaged in a directly health-related business, and shall not have a material financial interest in the providing of goods and services to persons engaged in the practice of medicine. (Emphasis added).

A son or daughter would be viewed as a member of the "immediate
family" for purposes of determining the qualifications for public
members of the Board of Medical Practice. In Delaware, children,
either natural or adopted, are viewed as a "close relative" for
purposes of judging the conduct of state officers and employees.
29 Del. C. § 5804(1). 

As to the issue of whether a permit to practice in New Jersey
equates with being "licensed in any health-related field," the
fact that New Jersey may distinguish between a "license" to
practice medicine and a more limited "permit" to practice
medicine which is given to medical students while in the second
year or beyond of a graduate medical education program in
medicine or podiatry in the State of New Jersey should not be
viewed as controlling in any determination of eligibility for
public Board member status in Delaware. Even if the New Jersey
permit is viewed as only a restricted or limited authority to
practice medicine, it is, nevertheless a "license" within the
context of the Delaware Code. The equivalent authority in
Delaware for the New Jersey "permit" to practice medicine would
be the granting of a certificate to practice medicine under 24
Del. C. § 1725(a)(2) in what is commonly referred to as an
"institutional license." 

The term "licensed" in the statute is not expressly limited to

licensure "within the State of Delaware," and given the purpose
of the restriction, which is obviously to insure that public
members not be connected to or associated with the health care
industry, any such limited construction of the term "licensed"
would be strained, overly restrictive, and inappropriate. 

Assuming that the present situation is one which would disqualify
an individual from initial appointment to the Board, the question
becomes one of the status of an individual, presumably properly
appointed, who subsequently comes under such a disqualification.
Stated differently, does the occurrence of the disqualifying
event necessarily or automatically result in the removal of the
public member from the office or is further action required? The
answer to this question for this Board is that the disqualifying
event does not automatically effect the removal of the Board
member nor, for that matter, does it mean that his acts done
under the color of authority can be challenged. See Commonwealth
of Kentucky ex rel. Breckinridge v. Winstead, et al., 430 S.W.2d
647 (1968). 

The individual in such circumstances is viewed as at least a de
facto officer. A de facto officer is one whose title to an office
is not good in law but who is in fact in the unobstructed
possession of his office and is discharging its duties in full
view of the public in such manner and under such circumstances as
not to present the appearance of being an intruder or usurper.
State v. Pack, Del. Super., 188 A.2d 524 (1963). 

The fact that the Board member may have been validly appointed
and that the disability has occurred subsequent to a valid
appointment is not material in this situation since the statute
specifies the prohibition in terms that a public member ". . .
may not be nor ever have been . . ." (emphasis added). Therefore,
under the statute as it presently exists, when any of the
prohibited conditions occur, the public member becomes ineligible
to be a public member, and while such a Board member would serve
as a de facto officer until ousted, once the right of such
officer to serve is questioned, the probable result seems clear
that service as a public board member must terminate unless the
disability can be removed. State v. Pack, supra. 

Members of the Board of Medical Practice are appointed by and
subject to removal for cause from office by the Governor who may
also fill vacancies on the Board. 24 Del. C. § 1710(g). 

When a duly appointed Board member becomes disqualified from
further service because of the occurrence of a limiting event and
does not otherwise vacate the office, the appointing authority
has cause to effect the removal of the individual who is no
longer qualified and provide for his or her replacement by
filling the resultant vacancy. 


Should you have additional questions concerning this matter,
please do not hesitate to let us know. 

Very truly yours,



Michael M. Tischer
Deputy Attorney General



Malcolm S. Cobin
Assistant State Solicitor



Approved:



Michael J. Rich
State Solicitor



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