The chief sponsor of nursing home legislation in the Virginia General Assembly in recent years has been Del. Owen B. Pickett, a former chairman of the Virginia Democratic Party whose Virginia Beach law firm represents the largest nursing home chain in the state.
Pickett steered several bills sought by the nursing home industry through legislature last year, including one measure, opposed by poverty groups, that would allow nursing homes to collect more money from the families of Medicaid patients.
This session, when the Virginia Health Care Assocation, a trade group of nursing home operators, wanted a bill that would require that one of its members be placed on the state Board of Health, the group went straight to Pickett.
"We asked Mr. Pickett to be the lead sponsor," said Peter Clendenin, director of the Health Care Association. "He's been helpful to our industry in the past."
Pickett, who was briefly a U.S. Senate candidate last year, says there is no conflict of interest because the bills do not directly benefit him personally or his firm's client, Beverly Enterprises, a California-based corporation that owns 20 nursing homes in Virginia.
"I have an expertise in health issues acquired over a period of 12 years," Pickett said. "It's not to serve any particular interest . . . . I'm serving the people of Virginia."
Pickett's comments are a standard refrain in Virginia's part-time legislature where it is not uncommon for lawmakers to introduce or vote on bills that, to one degree or another, affect their law clients or businesses. Not all cases involved direct conflicts, but in the absense of a strict ethics law, lawmakers say there are numerous instances each session where the line between public and private interest becomes blurred and difficult to find.
"I don't think this is a place where people are always putting in bills to fatten their wallets," says Sen. Richard L. Saslaw (D-Fairfax). "But every session, you'll get a few cases that are blatant . . . . And there's lots of others in which there are gray areas and there's no definable standard."
One of the most talked-about examples this session has involved Del. Bernard S. Cohen (D-Alexandria) and his efforts to rewrite the state's personal injury laws to make it easier for victims to file lawsuits for damages.
As a lawyer, Cohen is considered a specialist in personal injury cases, having won the first in a string of lawsuits against Ford Motor Co. for allegedly faulty automatic transmissions that have slipped from park into reverse, causing accidents. Cohen estimates that his firm netted about $150,000 in fees, or nearly a third of its income, from personal injury awards and settlements last year.
As a legislator, Cohen has lead the fight for a "comparitive fault" law, a doctrine that would allow persons to sue for damages even if they are partly negligent. Cohen's bill has run into consistently stiff opposition from insurance companies and defense lawyers who argue that it would raise insurance rates and substantially increase the volume of lawsuits as well as business for personal injury lawyers such as Cohen.
Is it a conflict for Cohen to sponsor such legislation?
No, says Cohen, "as long as you're truthful and everybody knows where you're coming from . . . . It's a matter of principle with me."
Besides, he asks: "Who is better able to introduce a bill for comparitive fault than a personal injury lawyer? Is a defense lawyer going to do it? Is a doctor going to do it? Is a lay person going to do it?"
The question is not unique to the lawyers in the legislature. When the issue is pharmacy, the Virginia lawmakers often turn to Del. Harvey Morgan (R-Gloucester), owner of Morgan's Drug Store and former president of the Virginia Pharmaceutical Assocation. Each year since he was elected in 1979, Morgan has introduced bills to change the state's pharmacy laws, often at the request of the trade group he used to head.
Morgan, whose wife and brother are also pharmacists, says he zealously guards against using his office to serve himself, his drug store or his fellow pharmacists. "I'm very careful to put in bills for the public welfare," he says. "If it's a bill to benefit me, then I would have somebody else put it in and I wouldn't even vote on it."
Not all the cases are that simple. One of Morgan's bills this year, which passed after considerable amending, will allow pharmacists in some instances to dispense certain, nondangerous drugs without a doctor's prescription. Last year, he put in a bill, killed in House committee, to exempt pharmacists from jury duty.
"I'm a legislator and legislators are already exempt, so I didn't feel it was a conflict," he said.
When the current session began, retiring Sen. Adelard L. Brault (D-Fairfax) sponsored a new ethics bill drafted by State Attorney General Gerald L. Baliles that, among other items, tried to address the conflicts issue by establishing a legislative ethics advisory panel and mandating more financial disclosure. It would have required that legislators name the companies in which they hold stock, such as Virginia Electric and Power Co., rather than by category, such as utilities.
The financial disclosure section has been gutted by the House and critics say the bill barely tightens existing law for legislators. Brault says that, other than restoring the deleted disclosure requirement, the bill "is about as far as you can go and maintain a citizen legislature."
To do any more, such as tightening rules to prevent personal injury lawyers from voting on negligence bills, would deprive members of an expertise they badly need and pave the way for a full-time professional legislature, says Brault.
Brault hasn't always maintained that attitude. Two years ago, he took the floor to angrily oppose another bill that would benefit plaintiffs and plaintiffs' lawyers in car accident suits at the expense of insurance companies. The bill has also been sponsored by Cohen but was introduced that session by another plaintiffs lawyer, former Richmond delegate George Allen, who was the legislature's so-called "King of Torts."
"This is the most crass piece of legislation I have seen in the 16 years I've been in the Senate," said Brault then. "The intention of introducing this bill was to feather a lawyer's nest."
The remarks annoyed some of his colleagues because Brault is an insurance lawyer whose Fairfax law firm represents State Farm Mutual Automobile Insurance Co., Motors Insurance Corp., Aetna Insurance Co. and more than a dozen other insurance firms.
In retrospect, Brault says he regrets the comment. "That was an extreme statement made in the heat of debate," he says. "That wasn't a conflict."