The most notable “power couple” in Gov. Chris Christie’s administration is about to enter a new ethical minefield – one in which even talking about their jobs with one another could pose serious dilemmas.
Christie Chief of Staff Kevin O’Dowd’s move to become senior executive vice president and chief administrative officer for Cooper University Health Care has prompted state Health Commissioner Mary E. O’Dowd, his wife, to order that she be screened from hearing about issues involving Cooper.
The situation has caught the attention of longtime advocates for state ethics oversight.
The question that the O’Dowds will have to face is whether they can overcome even the perception of a conflict of interest when their jobs so pervasively present opportunities for such a situation.
“It’s a very, very tenuous situation,” said William Schluter, a former longtime member of the State Ethics Commission and state senator.
He noted that nearly everything that senior hospital executives do in their jobs is influenced by state regulations.
“It’s a situation that I sure as heck wouldn’t want to be in,” said Schluter, adding that he expects second-guessing in the media and by elected officials as the state handles issues affecting Cooper.
Mary O’Dowd’s sent a letter to the ethics commission and Ruth Charbonneau, her chief of staff, on Oct. 28, telling Charbonneau to ensure that the commissioner doesn’t receive any communications “on any matters directly affecting The Cooper Health System.” The letter said this recusal would remain in effect until further notice.
“Because I may be seen to have a conflict of interest in matters directly affecting The Cooper Health System, I am delegating all responsibility and authority for handling any such matters” to Charbonneau, Mary O’Dowd wrote in the letter, which was sent more than two weeks before Cooper announced her husband’s hiring.
At Cooper, Kevin O’Dowd will be responsible for “business and organizational development,” including the system’s relationships with MD Anderson and AmeriHealth New Jersey, according to Cooper’s announcement of his hiring. He will also oversee marketing, human resources, compliance oversight, and corporate real estate and development. He will join Cooper in January.
Prior to taking the Cooper position, Kevin O’Dowd had been nominated by Christie to be the next attorney general, but his nomination became bogged down over questions surrounding the governor’s office’s handling of the controversial closure of a George Washington Bridge ramp in Fort Lee.
Seton Hall Law Professor Michael P. Ambrosio said questions about conflicts of interest will be inevitable for the health commissioner, noted that she will have to avoid the “appearance of impropriety” – a legal standard for a conflict of interest for public officials.
But he said the basic outline of the situation doesn’t disqualify either O’Dowd from doing their jobs.
“That would be to take the conflict of interest (standard) and the appearance of impropriety too far,” Ambrosio said.
He said that Mary O’Dowd will have to be sensitive about state decisions that don’t directly involve Cooper – such as decisions that affect Cooper’s rival hospitals, like Lourdes Health System and the Virtua system. Whether it will be appropriate to recuse herself on issues facing hospitals other than Cooper should be handled on a case-by-case basis, depending on the specific facts involved, Ambrosio said.
He noted that executives at the hospitals involved in these decisions would also be in a position to raise ethical concerns.
Ambrosio added that the other state officials who handle Cooper-related businesses in place of the commissioner must be trusted.
“The expectation is that people will be responsible in the exercise of their authority,” he said, adding that if Mary O’Dowd were to retaliate against her subordinates, it would be grounds for an employment-discrimination lawsuit.
“You can’t presume that there is going to be untoward influence,” Ambrosio said. “I think that’s going too far — it’s essentially denying the presumption that people are honorable.”
Mary O’Dowd has been the health commissioner since April 2011, after serving a year as deputy commissioner. Previously, she was chief of staff for two years to former Commissioner Heather Howard during Gov. Jon S. Corzine’s administration. Before that, she managed revenue cycle operations for NYU Medical Center’s emergency department and was assistant vice president of legislation and policy with the New Jersey Hospital Association.
As to what the O’Dowds will be able to discuss in private, Ambrosio noted that couples in other professions have long had to deal with similar issues. For example, lawyers who work for firms on opposite sides of a lawsuit know they have an obligation not to disclose to each other information about the case.
“People at that level are aware of how strong the fiduciary obligations,” of holding their positions are, Ambrosio said. He added that he expects that the O’Dowds will be careful not to violate those responsibilities.
If concerns are raised about the commissioner’s work, they would likely be directed to the ethics commission.
Schluter and other former commissioners have said the commission’s independence was harmed by Christie’s move to replace its executive director.
Schluter added that the O’Dowds are entering what is “certainly a problematic situation.” He predicted that many people will say: “There’s so much that goes into it that it doesn’t pass the smell test.”