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Failure to get quorum didn’t stop Mass. panels

7 agency licensing boards have record of taking votes anyway

The pharmacy board met at its offices earlier this month. A review of past meeting minutes showed the board met without a proper quorum at least twice since 2010.

John Tlumacki/Globe Staff

The pharmacy board met at its offices earlier this month. A review of past meeting minutes showed the board met without a proper quorum at least twice since 2010.

There was one glaring problem when a state board overseeing nursing home managers met in a fourth-floor conference room near TD Garden on Jan. 17: Not enough people showed up.

Only six members attended the meeting — two short of the quorum needed to legally conduct business — and one of the six left after 22 minutes.

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But members and staffers didn’t seem to notice. The Board of Registration in Nursing Home Administrators proceeded to vote on more than a dozen items, including denying a Braintree consultant’s request to teach seminars for nursing home managers who are required to take continuing education courses to maintain their licenses.

“I am upset that action was taken inappropriately,” said Sean Dore, president of Z.S. Consulting Group and a former state public health official, who said he complained to the agency after the Globe asked him about the vote. He said the rejection potentially cost him income. “The law is black and white.”

One of the most basic rules of serving on a government board is that you can’t have an official meeting unless you round up enough members for a quorum — typically a majority of all the seats on the board.

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But all too frequently, professional licensing boards overseen by the Massachusetts Department of Public Health have defied the rules.

A Globe review of meeting minutes found that seven of the boards, regulating everything from pharmacists to genetic counselors, have collectively held more than a dozen meetings without a quorum in the past five years, throwing any votes taken on those days into doubt.

“It’s sheer incompetence,” said Leonard Kesten, a trial lawyer who represents cities and towns, including their boards and employees.

Though there’s no law barring a small group of board members from meeting informally and even taking straw votes on issues, it’s not considered an official meeting and the votes don’t legally count, attorneys said.

“It’s a group of people chatting,” said Kesten, a partner with Brody Hardoon Perkins & Kesten LLP. “It’s not a meeting of the board. It’s a nothing.”

The revelation about the quorum-short meetings comes at a time when the Department of Public Health has already been blamed for two major scandals in which lax management was a key issue.

The agency’s drug lab was shuttered last year after disclosures that state chemist Annie Dookhan may have falsified thousands of drug tests in criminal cases over several years. And the pharmacy board’s executive director was fired for allegedly failing to act on a complaint about a Framingham compounding pharmacy before its products were linked to 61 deaths.

“It seems to me we have some systemic failures and they are going to require systemic reform,” said state Senate minority leader Bruce Tarr, a Gloucester Republican.

Both Tarr and state Senator Mark Montigny said they were disturbed to learn the health-related licensing boards were violating quorum rules, since it puts their actions in doubt. Meeting minutes show the boards voted on scores of items — from changes in regulations to disciplinary actions — without enough members present.

“It’s outrageous and it needs to cease immediately,” said Montigny, a New Bedford Democrat. “You don’t get to flout the law on a whim.”

Montigny noted that the invalid votes open up the boards to potential lawsuits, both from people dissatisfied by the votes or from any third parties who are harmed by the decisions. It also creates the risk that the boards made the wrong decisions because missing members weren’t present to raise questions or provide insights that could affect the outcome.

“It’s an accident waiting to happen, and, at this agency, we’ve already had a lot of accidents,” Montigny said.

Public health officials acknowledged Friday that several of the licensing boards — including those overseeing pharmacists and physician assistants — clearly violated the quorum rules. The state vowed to implement new training to make sure the panels comply with the law in the future.

“The Department of Public Health considers violations of statutory quorum requirements to be unacceptable,” said agency spokesman David Kibbe. Licensing board members are typically appointed by the governor, but are not paid anything beyond travel expenses.

Kibbe said Department of Public Health commissioner Cheryl Bartlett, who took over the agency in May, has ordered a full review of its practices — including an analysis of any past quorum violations — and will determine whether further action is needed.

Still, Kibbe attributed most of the apparent violations, such as the one involving the nursing home administrators’ board, to ambiguity in the law.

The statute says “a simple majority of the members” are needed for a quorum — but Kibbe noted it does not explicitly say whether that means a majority of people currently serving on the board or a majority of all the positions (including unfilled seats).

Kibbe said the agency had a longstanding policy of advising boards that they only needed a majority of people actually sitting on the board for a quorum, reducing the number necessary for boards with empty seats. For instance, if a five-member board had two vacancies, agency staff reasoned, the panel only needed two people to form a majority, instead of the usual three.

But the Massachusetts attorney general’s office recently issued guidance explaining that vacancies do not lower the number of members needed for a quorum, citing a 1982 state Appeals Court decision.

“When there is a vacancy on a public body, a quorum is still measured by the number of members of the public body as constituted,” the attorney general’s office noted, except when a statute for a specific board says otherwise. The office issued the guidance in February after receiving questions about what the law meant, but a spokesman said the guidance applies broadly to meetings since July 1, 2010, when the attorney general’s office assumed responsibility for interpreting and enforcing the Open Meeting Law .

Kibbe said the Department of Public Health will follow the attorney general’s guidance going forward, but it still believes its old interpretation was valid for past meetings, including the nursing home administrators meeting in January. “We don’t believe any further action is needed,” he said.

Still, Kibbe acknowledged that three other boards met when it was clear they did not have a quorum.

For instance, the law for the board of perfusionists — who operate heart-lung machines during surgery — flatly says “a quorum shall consist of four members present.” But the board still met with just three members to approve new licenses in October 2011, according to board minutes.

Similarly, the law creating the board of physician assistants says clearly “a quorum shall consist of at least five members.” But the board voted with only four members present on three occasions in the past five years, minutes show.

Finally, pharmacy board members went ahead with meetings even when they didn’t have a majority of the people currently serving on the board.

Only four of the 10 members showed up for an emergency meeting on June 14, 2010, for instance. (The 11th board seat was vacant.) And just five of the 10 showed up for a meeting on July 17, 2012. But, in both cases, the boards voted on items anyway. The board needed six members for a quorum, under both the Department of Public Health’s old and new interpretations of the rules.

In all the cases, attorneys said, the board votes could potentially be vulnerable to a court challenge.

“It’s a really bad problem,” said Kesten, the Boston lawyer. “If the board fined you, then it’s void.”

Kesten, however, said it would probably take an aggrieved party, such as someone who was punished, to challenge the actions in court. And the boards could likely solve the problems by voting on the items again at a proper meeting with a quorum, Kesten said.

Meanwhile, at least a half-dozen people have filed complaints with the attorney general about municipal board meetings that were held without a quorum in the past two years. But the attorney general’s office has typically declined to act on such complaints, arguing that is outside the purview of the Open Meeting Law because the statute only covers meetings with a quorum.

Nevertheless, Brad Puffer, a spokesman for the attorney general, noted: “It is always in a public body’s best interest to follow the rules.”

The head of an organization representing municipal attorneys said he thought quorum violations were relatively rare for cities and towns. He said most local officials have long understood that boards need a majority of positions to vote and can’t get by with fewer people when there are vacancies.

“I would think instances where a local board did not understand the law would be far and few between,” said James Lampke, executive director of the Massachusetts Municipal Lawyers Association.

But Lampke said occasional errors are inevitable in government.

“It’s public service,” Lampke said. “It’s not perfect service.”

Todd Wallack can be reached at twallack@globe.com. Follow him on Twitter @twallack.
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