Florida Board Executive Director Warns Board Members About Adhering to Sunshine Laws

News Staff
Florida Board Executive Director Warns Board Members About Adhering to Sunshine Laws

"You need to be very cautious about conversations you are having"

The recent Florida Board of Chiropractic Medicine meeting held on August 17, 2023 may have been focused on the issue of whether or not dry needling is within the scope of practice for chiropractors in Florida, however the meeting raised a number of other issues confronting the Florida Board.

CLICK here for an audio transcript 

For example, FBCM board member Anthony Oliverio DC who Chairs the Board's Legislative Committee has sent out a letter claiming to have had "in depth conversations with numerous chiropractors" who want to expand the scope of practice in Florida to include injectables, muscle relaxers, steroid packs, dry needling and trigger point injections.

CLICK HERE for that story

During the August 17th meeting Oliverio lamented how he has been bringing the subject of expanding the scope of practice to Dayle Mooney the Executive Director of the FBCM for the past year stating:

"I just recently sent out a letter asking the state Associations for this very topic to poll. And I think that's what we should be doing with this topic."

The question this raises is whether or not Oliverio is taking these actions consistent with Florida's Sunshine law which heralds open and transparent government.

The Florida Board Member Handbook explicitly states on Page 11:

"Ex Parte Communications: A board member is prohibited from having unilateral communications concerning the merits of an issue before the board"

Was this letter sanctioned by the Board or the Department of Health? Did Oliverio discuss it with other board members outside of board meetings? It would seem likely that he did.

In another section of the transcript from the meeting, Oliverio further laments how he was told by Mooney that the "DOH would not handle that" and that he "needed to go to the associations."

The question becomes whether or not there are public records associated with these conversations or did they happen in private without proper notice and the related ability for the public to participate?

Florida has a very broad public records law.

But the issue of back room dealing didn't end there. Later during the meeting and heavy discussion about dry needling and expanding the scope, the Vice Chair of the Florida Board, Jason Comerford DC stated he "was contacted by one of the other associations, specifically the FCPA" and then asking "Are they here today? Because they were talking about this to me."

Comerford went on to address Kim Driggers the Counsel for the Florida Chiropractic Association (FCA) of which he is a member stating:

"I got your email Ms. Driggers. I emailed you back. Yeah, I gave you my phone number. You didn't call me."

Driggers answered that she didn't think she had his phone number with Comerford responding:

"Yeah, it's on my email but FCPA called me about this specifically and I honestly don't know enough about it myself. I thought they would have comments because I thought they were gonna be here because he specifically asked me about this"

Comerford was then cut off from continuing.

As the meeting started coming to a close Executive Director Mooney made a point to address the communciations ostensibly occurring contrary to the Sunshine law stating:

"Now, we just go ahead and go on record of asking the board members to please use caution when talking about any information that is going to be on this or a future agenda of the board where two board members are meeting to discuss future actions of the board, that meeting must be publicly noticed and made available. So as you move forward on this, please be mindful. We've heard this here today. We've decided that we're going to hear it again in the future. You need to be very cautious about conversations that you are having so that we make sure that we are fully in the sunshine on this and make sure that members of the public are notified and able to participate as is the will of the legislature."

Soon after Vice Chair Comerford apparently seemed to walk back his statement to Driggers out of the blue claiming:

"And Ms. Driggers, I apologize, I replied to my own email. Thank you."

Driggers responded "I promise I didn't receive it"

Given that the majority of the FBCM Board Members are all dues paying members of the Florida Chiropractic Association and it is the FCA that is pushing for expanding the scope of practice along with these Board members it raises all kinds of issues related to the Florida Code of Ethics and possible violations by public officers.

Violation of the Sunshine Law can make one subject to fines and/or criminal charges.

According to the Board Members handbook in regards to Legislative Intent and Declaration of Policy:

"It is essential that public officials be independent and impartial in the conduct and operation of government."

Even a cursory reading of the transcript from the August 17th meeting reveals the lack of impartiality of board members making decisions on scope as active market players that will affect thousands of chiropractors and millions of citizens.

Just one example includes the shocking admission by Board Member Michael Roberts DC that:

"I've been trained in dry needling and I use it in my practice right now"

How did the Board Staff and legal counsel (or anyone else on the Board) allow him to vote on the issue given his obvious conflict of interest?

CLICK HERE for more on Roberts

According to the document: Florida Department of Health. Legal and Ethical Guide. Brady E. Antitrust Division. U.S. Supreme Court Ruling in North Carolina State Board of Dental Examiners v. FTC Overview, Implications, and the New Regulatory Landscape Scope of practice issues are more likely to bring up anti-trust issues and so are declaratory statements. The Antitrust Division also warns about "voting blocks" such as what we see with the board being controlled by FCA members.

As was made clear by the August 17th meeting, dry needling didn't make the cut this time around but the Florida Board intends to make an attempt to expand the scope of practice of chiropractic to include drugs, injectables, muscle relaxers, steroid packs, dry needling and trigger point injections moving forward.

Whether or not they will heed Mooney's warning about operating in the Sunshine or continue to engage in ex parte behind the scenes maneuvering remains to be seen.

McCoy Press