PERSPECTIVE FROM THE 19^TH HOLE: This is the title I chose for my personal blog, which is meant to give me an outlet for one of my favorite crafts – writing – plus use an image from my favorite sport, golf. Out of college, my first job was as a reporter for the Daily Astorian in Astoria, Oregon, and I went on from there to practice writing in all of my professional positions, including as a Congressional press secretary in Washington, D.C., an Oregon state government manager in Salem and Portland, press secretary for Oregon’s last Republican governor (Vic Atiyeh), and a private sector lobbyist. This blog also allows me to link another favorite pastime – politics and the art of developing public policy – to what I write.

Why is this sometimes-esoteric subject an issue for me – the issue of non-compete contracts that make it difficult for high-level professional talent to jump without warning from one employer to another?

Well, my background relates to public policy issues at the Capitol several years ago when I represented the Oregon Association of Broadcasters (OAB). [The assocation is still represented by my old firm, CFM Strategic Communications.]

At that time, a state senator who was a former broadcaster decided, without consultation with the industry, that he should propose doing away with non-competes. He did so at the behest of a union, the American Federal of Television and Radio Artists.

Removing non-compete agreements, he contended, would occur without regard to the fact that broadcast stations often had invested millions of dollars to promote on-air talent.

Better, I contended at the time, for policymakers to recognize the investment and allow broadcast stations to allow non-competes for a limited amount of time, say three years.

We eventually found just a bit of middle ground to preserve the use of non-competes for broadcasters, but with some restrictions.

All of this came to mind recently when I read a column in the Wall Street Journal under this headline:

Your longtime doctor moves. Will you lose that physician because of a non-compete clause?

The piece reported problems for patients when a physician moved from one practice to another without information being provided about the move and patients left to scramble to find a physician with whom they had a relationship.

Here is an excerpt from the piece:

“A physician had decided to change jobs, but her contract included a non-compete clause that prevented her from working for a competitor within 10 miles for a year after she left. A non-solicitation agreement also meant she couldn’t tell patients where she was going. If they asked, she would need to tell them to search online for her.”

The WSJ reports that it’s not clear how often doctors sign covenants, the contract clauses that limit where they can go or what they can say after leaving a job, says David Clark, a partner at Epstein Becker & Green, a law firm in New York.

Laws vary by state — both in what’s allowed in physician contracts and what is enforceable. In some states — including Massachusetts, Rhode Island, Delaware and Colorado — health-care systems can’t legally enforce contract provisions that prevent health-care employees from working for competitors.

Other states — including Texas, New Mexico, Connecticut and Tennessee — allow them with various limitations on how restrictive they can be.

As was true for the broadcasters I represented, hospitals and clinics justify non-compete contracts as a way to protect the investments they make in physicians, says David Meltzer, an economist and primary-care physician at the University of Chicago.

He imagined a scenario in which a hospital spent a lot of money to hire a prominent surgeon, supplemented by expenditures in support staff and advertising, only to have the surgeon soon leave the practice for a competitor down the road.

“There is a reason why these exist,” Meltzer says. “It’s not just a ridiculous control mechanism, necessarily.” And, from my point of view, the competitors should be required to make the same type of investment in physicians they hire, not just steal from another provider.

Beyond broadcasters, I encountered this issue in my representation of health care interests, this time a cardiology practice.

The issue arose because the cardiology practice had invested thousands of dollars to entice a group of cardiologists to move from another state to join the practice here in Oregon. As they arrived, the practice invested more money in facilities, services and staff to help the new cardiologists succeed in their new location.

Then, as it happened, the new cardiologists decided summarily to leave for a new location down the street.

My client took the new cardiologists to court in an effort to preserve the non-competes, as well as to preserve the investment they had made in enticing the new physicians to come to Oregon where they could practice successfully.

Well, the judge in the case issued a confounding ruling that I felt went beyond his appropriate jurisdiction. Rather than ruling on the efficacy of the non-compete agreements, he said the community would benefit from expanding health care access by allowing the physicians to move because, inevitably, they would be replaced by the original hiring practice – my client – and, thus, there would be more cardiologists in the region.

A bad ruling, I thought. His jurisdiction was not the spread of health care services in the region. His jurisdiction should have been limited to whether the non-competes were fair and reasonable. But, we were stuck with the decision to the consternation of my client – and me.

The moral of all this is that, in various instances of high-priced and high-value professional positions, non-compete agreements make absolute sense.

I wish policymakers – both in the Legislative and Judicial Branches — would recognize the rationale and the value.