Federal Judge John Jones III has teed off (again) on the Pennsylvania Board of Funeral Directors. Awarding attorneys fees of more than a million dollars and issuing a permanent injunction against the State Board, Judge Jones rebuked Board members for their failure to show initiative towards a legislative fix to a Truman era problem. And, the situation for the State Board is about to get worse. Judge Jones will also preside over Rabbi Wasserman’s lawsuit against the State Board. The Rabbi made a very compelling case to the Tablet, and will likely find a friendly ear in Judge Jones. If these recent events are considered in the context of Ernie Heffner’s comments, one would have to wonder if the State Board is being hung out to dry by a trade association that has long endorsed the State’s enforcement of a protectionist law.
Contrary to the Judge’s perception, industry boards are better suited to applying existing law than re-writing it. The purpose for having an industry board is so that the members can provide experience and balance when applying the law to alleged violations. But if the law is broken, board members are dependent on attorneys for advice on how it should be fixed, and what to do until the law is changed. As Mr. Heffner points out, PFDA attorneys mounted a strong defense of the Pennsylvania law. The NFDA also provided support for certain provisions of the law. The Board’s legal team followed the course set by the industry attorneys. As a consequence, the State of Pennsylvania will now have to foot the bill for more than a million dollars in attorneys’ fees, with the possibility of more to come.
Pennsylvania represents a failure in legal leadership. But too often, an association defines the role of its general counsel in ways that encourage loyalty to its board (or to crucial members) at the expense of its membership, or worse yet, at the expense of the industry. Such was the case in Illinois when the general counsel approved years’ of board decisions that culminated in the near collapse of the master preneed trust.
If Pennsylvania is to find legislative solutions, it needs to be the collaborative effort of the State Board’s attorneys, industry attorneys, and the PFDA’s attorneys. Missouri should take heed from the Pennsylvania situation. For the better part of 2 years, the staff for the Missouri State Board of Embalmers and Funeral Directors has advised that the law is broken with regard to insurance assignments. The staff continues to pressure the Board to take action. The industry is opposed to the staff’s position on insurance assignments, and the MFDEA has recommended that funeral directors contact board members about their feelings. What the board members need is legal advice from the association and other industry attorneys. If the law isn’t broken, explain why. If the law is broken, but not to the extent the staff asserts, then recommend a fix.