Coalition for Mercury-Free Dentistry
1725 K St., N.W., Suite 511
Washington, DC 20006
Ph. 202.822-6307; fax 202.822-6309
www.toxicteeth.org
December 22, 2003
To: Alan Kaye, DDS, President (until Dec. 31, 2003),
Dental Board of California
Summary of message
- Your decision to agendize a secretly-produced fact sheet to substitute for the brochure approved by the Board in principle is in error, in policy and law. The latter was worked on openly by all board members over a two-year period, encompassing a lengthy board hearing, intense stakeholder involvement, open debates, and crafting of compromise language. It has twice been approved, overwhelming, by the full Board. In November the Board instructed that minor changes be made and the same brochure - all agreed it was a good work product and both you and the President-elect called it 95% complete - returned for a final vote. The one you are trying to replace it with is secretly produced, lacking in claim of genuine authorship, and continues a 12-year cover up of the risks of mercury. It is plainly out of order, and you should so state.
- You are an honorable person, and I recognize you are under enormous pressure from one of the most politically powerful lobby groups in Sacramento. It is not too late to reverse your decision, and we urge you to do so.
- Here are six grounds, each being sufficient, that you could use (take your pick):
- Your term as president expires December 31, and you have no power to determine the agenda for the January board meeting.
- The Board resolutions mandate that the Board work from the compromise fact sheet, approved 7 to 1 on July 11, and 8 to 0 on November 7.
- This secretly-produced "fact sheet" has never been examined by the Board, is based on a letter of a discredited charlatan who refused to appear to defend his position (unlike the experts against mercury fillings), and allows CDA to reverse the very stand it took nine months ago that mercury fillings can cause birth defects.
- To give status to an out-of-the-blue fact sheet after a painstaking two-year process gives the appearance of wrongdoing. Dr. Terlet has not revealed who wrote it, who paid for the layout, who paid for the printing, and what sources they used. Agencies may not buy a pig in a poke.
- This substantively empty document violates the Watson law -- it does not give the Proposition 65 information to the public.
- You apparently acted before receiving written advice of legal counsel.
Letter to Dr. Kaye
Dear Alan:
On behalf of consumers who continue to get mercury fillings without being told the risks, I express my deep regret that you broke your promise and did not convene a board meeting in December. We recognize that the intense pressure you are under from the relentless pro-mercury fillings lobbying group that wants the Board -- for the 12th year in a row -- to defy the Watson Law. But you gave your word as president, in open session on November 7, and to Congresswoman Watson personally, that the Board would (1) meet in December and (2) vote to distribute the Fact Sheet before the end of the year.
In refusing to have that meeting this month, you exceeded your authority: you violated the Board resolution to re-convene in December and vote.
But now we must address the problem at hand: Your ruling that the fact sheet with unknown authorship is in order and will be given a vote at the January meeting.
To work for two years on a final product, then to chuck it for a mysteriously-produced one is an unusual, troubling, and perhaps unprecedented action. Before you decide the president has the power to set aside a document approved by the Board and designated 95% complete -- in favor of one secretly crafted and produced whole -- we strongly urge you to get legal advice.
As you know, Dr. Terlet insisted for weeks that she had no time in December to do the tiny amount of work to correct the existing fact sheet consistent with the Board's wishes. She said she would have time in January - after the deadline of the Board resolution. (We had hoped you would insist she stop disregarding the Board resolution and work with Dr. Yokoyama, instead of using her intransigence as a purported rationale to block the meeting.)
Then presto … this same Dr. Terlet -- too busy to spend 30 minutes editing -- magically produces an entirely new fact sheet. It is perfectly laid out and printed professionally. It has the ADA/CDA's state-of-the-art sound bites.
Dr. Terlet (like most of us who aren't printers or graphic artists) has no known skills in professional layout or professional printing. Before putting it out on the table amidst speculations of deal-making or under-the-table activities, the Board and the president must do some rudimentary fact-finding:
- Re the printing: The fact sheet approved in principle in November was laid out and printed, above board, by the Department of Consumer Affairs. Did you inquire who printed the Terlet fact sheet? Did you inquire whether Dr. Terlet paid for it? Did you inquire whether CDA or ADA paid for it? Did you inquire whether it was printed in-house by CDA or ADA, or done gratis by their printer in order to keep their other business?
- Re the layout: Did you inquire who laid it out so perfectly? Did you inquire whether Dr. Terlet paid for it? Did you inquire whether the CDA or ADA paid for it? Did you inquire whether CDA or ADA laid it out in-house?
- Re the words themselves: Did you inquire who really wrote it? If Dr. Terlet had such brilliant wordsmithing abilities, where were they for the 23 previous months she was involved in writing the fact sheet?
Dr. Kaye, if Dr. Terlet ducks instead of answers these questions, that is reason enough to stop the process now, and disqualify this "fact sheet."
Until the Board and public learn otherwise, this fact sheet has:
- Unknown author(s);
- Secret financing for printing, layout, and wordsmithing;
- No opportunity for the Board as a whole to critique it;
- The sole "expert" never having appeared before the Board to defend his letter -- and it is easy to see why. Dr. Robert Baratz was just relieved of his role as an expert by the State of Wisconsin. His dental "practice" is conducted in his home without basic equipment. His quackbuster organization doubles as headquarters for his laser hair removal distributorship, his apparent medical specialty. Unlike the experts we produced, he does no current peer-reviewed research. Much of his career is focused on a stream of lawsuits against every Tom, Dick, and Jane based on ostensible physical injuries or emotional harm. See the Baratz deposition in the "state boards" section of www.ddslaw.com.
You certainly recognize, don't you, that juxtaposing this kind of fact sheet with the one approved in July and November conflicts with the spirit of the Board resolutions?
In 1993, the dental board wrote a fact sheet without relying on a single document. The board was sanctioned in a subsequent FOIA case for hiding documents, and condemned by DCA for writing a "probably misleading" fact sheet. Please do not descend to the level of this board, the one that the Legislature ultimately shut down.
It's time to get past this "mirroring the old fact sheet" charade. Via the Pinkerton amendment in July, the Board voted to update and replace the fact sheet, repeating its position in November. Your off-and-on request to "mirror" what the discredited board did is no longer operative (if it ever was - you waited to use that term publicly a full year after you created the committee). The Watson law directs the Board to update the fact sheet, and it has twice voted to do so.1
In an act of contempt of the court document it signed in January and distributed in March, CDA now claims that the notice it mailed to every dentist in California is false and misleading. Think about that! Negotiating an agreement, signing it, submitting it to the court for agreement, becoming subject to a court order, mailing the notice to every dentist (not just members) for posting - then having the chutzpah to call it language false and misleading. These shenanigans are not the work of someone with the character of Cathy Mudge -- this is Chicago taking over.
The Board may not disregard this significant development that occurred since that 2001 lame-duck vote. The CDA, consumer groups, and the Attorney General reached an agreement that mandates the following disclosure: amalgam contains mercury, and mercury causes birth defects and other reproductive harm. Proposition 65 is the law of California. The compromise fact sheet quotes it, the anonymously-produced fact sheet hides it. The remedy of the opponents of Prop 65 is to repeal it, not ignore it.
Alan, we hope you recognize you the only fair and legal decision is to rule the secretive replacement fact sheet out of order. If you choose to go forward, we would hope that DCA counsel or the Attorney General would recognize that sneaking in this new "fact sheet" is not legal, and/or that the Acting DCA Director would advise that allowing this fact sheet raises the appearance of impropriety.
Sincerely,
Charles G. Brown
- cc--DCA
- Ron Joseph, Acting Director
Denise Brown, Chief Deputy Director
Norine Marks, Counsel
- cc--Attorney General's office
- Alan Mangels, Assistant Attorney General
Tricia Wynne, Special Assistant Attorney General
- cc--Legislative staff
- Jay DeFuria, CA Senate Business and Professions Committee
Richard Butcher, Congresswoman Watson's office
- cc--Dental Board
- Newt Gordon, President-Elect
Chester Yokoyama, Chair, Fact Sheet Committee
- cc-Center for Public Interest Law
- Julie D'Angelo Fellmeth, Esq.
Collette Galvez, Esq.
__________________________
1The fact sheet in current use is a literary and grammatical disaster, and it omits the risks of mercury fillings. It was adopted at a lame-duck session by a Board that had already been shut down by the Legislature for being anti-consumer -- with the only consumer present voting no. No one can doubt that it violates the implied mandate in the Figueroa Amendment that it be consumer-friendly.