Review shows health licensing boards voted improperly

Some of the improper votes were procedural, such as approving minutes. But many affected substantive issues, such as approving license applications, deciding whether to investigate complaints, and determining what disciplinary action to take.

For instance, after initially voting at a legal board meeting to shut down a Webster compounding pharmacy that gave a teenager medicine that was 1,000 times too potent, triggering a heart attack, a handful of board members voted to reverse the action at a meeting a week later without a legal quorum. The pharmacy has since closed on its own, and DPH is continuing to investigate the matter.

The audit’s findings potentially mean any aggrieved party could go to court to challenge the decisions and raise questions about the integrity of the process. The Department of Public Health sent letters earlier this year to 38 licensees who were adversely affected by votes, offering them the opportunity to have the matters taken up again. Three people so far have taken DPH up on the matter. But the department did not contact members of the public who had filed complaints that were improperly dismissed. Nor did it revisit votes in which boards awarded licenses without a proper quorum.

One lawmaker said he was puzzled that boards met so often without a quorum because attorneys and other staff members typically attend the meetings.

“It’s kind of bizarre,” House minority leader Bradley H. Jones Jr. said. “It just leaves me scratching my head.”

The governor’s office and DPH officials declined to say why the boards held so many meetings without a quorum or whether they were surprised by the findings.

In addition, DPH acknowledged that state health boards also held countless additional votes that would not be allowed under their current understanding of the law. Those votes were not flagged in the audit because lawyers at the time thought they were complying with the quorum rules, which generally require boards to have a majority of members present.

DPH attorneys historically believed boards were permitted to vote with fewer members present when some seats were unfilled. If a five-member board had four vacancies, they figured the board only needed one person for a quorum instead of the usual three.

However, the Massachusetts attorney general’s office issued guidance in February 2013 explaining that vacancies do not lower the number of members needed for a quorum. The reason cited was a 1982 state Appeals Court decision, a principle that many municipal boards have followed for decades.

State health officials said they have abided by the attorney general’s guidance since April 2013 but do not plan to revisit old votes affected by the ruling. A Health and Human Services official said it would “wreak havoc” if officials had to apply the guidance retrospectively.

The agency also said boards didn’t immediately start following the guidance in February 2013 because not all board attorneys received the attorney general’s e-mail (though records show it went to dozens of members of the Patrick administration, including the DPH general counsel). For instance, the Board of Respiratory Care met with just two members, two short of quorum, on Feb. 13, 2013, nine days after the e-mail was sent.

The quorum-less meetings are just the latest in a series of embarrassing management missteps by the Department of Public Health under Governor Deval Patrick.

The department’s drug lab was shut down in 2012 after investigators discovered that a chemist falsified thousands of drug tests, tainting decisions in many criminal cases. That same year, the state fired the pharmacy board’s executive director for failing to act on a complaint about a Framingham compounding pharmacy that was later blamed for 64 deaths and sickening hundreds of other patients. And last June, the agency scuttled licenses for nine of 20 medical marijuana facilities that won preliminary approval after questions emerged about their applications.

It also reflects the state’s larger struggle to keep track of a sprawling labyrinth of state boards.

A Globe review earlier this year found more than one-third of the seats on about 700 state boards were either vacant or filled with members whose terms have since expired. In some cases, boards had to regularly cancel meetings because they couldn’t muster a quorum, while it appears some other boards simply ignored the quorum requirements and met anyway.

The governor’s office, which handles the bulk of appointments to state boards, recently removed dozens of moribund boards from its website and said it is trying to fill positions on remaining boards. But it is constantly dealing with waves of new resignations and also is constrained by specific requirements set by the Legislature.

The board of pharmacy, for instance, had to cancel its November meeting for lack of a quorum after the Legislature revamped requirements for it. Just five of the 13 seats are filled, though the governor’s office hopes to fill three more in early December. Overall, there were 573 vacancies and 753 holdovers on more than 640 state boards and commissions listed on the governor’s website as of last week.

Attorney General Martha Coakley’s office, which is charged with enforcing the open meetings law, praised DPH for undertaking the review.

“It is a positive step that DPH has taken a deeper look at this important issue,” said Brad Puffer, a Coakley spokesman.

But DPH refused to provide a copy of the body of the report — which explored the legal implications of the missing votes — saying it is exempt from the public records law under attorney-client privilege. Instead, it only released an appendix summarizing the improper votes after the Globe filed a public records request.

In addition, DPH blacked out the names of the people who were sent letters advising them about the dubious votes, citing the licensees’ right to privacy. And the agency took three months to respond to the Globe’s public records request for the report, even though government agencies are normally required to respond to requests within 10 calendar days.

Wilmot of Common Cause said she thought the delay and redactions constituted another violation of state law, in addition to the quorum violations. The Secretary of State’s office ordered DPH to undergo remedial training in public records law after the Globe complained about the delay.

The Secretary of State’s office noted that it had received 14 complaints about the DPH’s handling of public records requests in the past 12 months alone. In some cases, it found the department simply ignored the requests.

“For a large state agency such as DPH that receives many public records requests and has its own communications director, such a response is unacceptable,” wrote Shawn A. Williams, the lawyer who oversees the Secretary of State’s public records division.

The DPH spokesman, David Kibbe, said in a statement the agency “deals with a high volume of public records requests.”

“Staff reviews regular public records training from legal counsel and would be happy to attend any further training,” he said.

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