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home : opinions : opinions June 29, 2015


2/21/2014 6:00:00 AM
TIMES EDITORIAL: Confusion surrounds hospital board vote
When Palo Verde Healthcare District Board of Directors made the decision to pay up to $35,000 for legal costs incurred by director Sandra Hudson as she fights a criminal charge of conflict of interest, it brought up many innuendos and conundrums.
When Palo Verde Healthcare District Board of Directors made the decision to pay up to $35,000 for legal costs incurred by director Sandra Hudson as she fights a criminal charge of conflict of interest, it brought up many innuendos and conundrums.

"A perfection of means, and confusion of aims, seems to be our main problem."

- Albert Einstein


When Palo Verde Healthcare District Board of Directors made the decision to pay up to $35,000 for legal costs incurred by director Sandra Hudson as she fights a criminal charge of conflict of interest, it brought up many innuendos and conundrums.

Cause of much of the confusion centers around whether (1) the 2-0-2 vote is considered a majority vote and; (2) whether the two abstained votes count with the "yea" votes or as a "no vote"; and (3) whether the vote was valid.

According to Palo Verde Healthcare District's bylaws dated from 2006, under the Quorum section it states, "A majority of the members of the Board shall constitute a quorum for the transaction of business. The act of a majority of the Board members present at a meeting at which a quorum is present shall be the act of the Board. The Board shall not take action by secret ballot, whether preliminary or final."

In order for a vote to pass, with five members on record at the meeting, the vote would have to have at least three "yea" votes, according to the district's own bylaws.

But under Robert's Rules of Order it states, "unless otherwise provided by law, these bylaws, or Board rules, Board meeting procedures shall be in accordance with Robert's Rules of Order Newly Revised. However, technical failures to follow Robert's Rules shall not invalidate any action taken..."

Under this provision, the district relies on Robert's Rules of Order to operate.

Also according to Robert's Rules of Order, "the phrase 'abstention votes' is an oxymoron, an abstention being a refusal to vote...In the usual situation, where either a majority vote or a two-thirds vote is required, abstentions have absolutely no effect on the outcome of the vote since what is required is either a majority or two thirds of the vote cast. On the other hand, if the vote required is a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention will have the same effect as a "no" vote. Even in such a case, however, an abstention is not a vote and is not counted as a vote..."

Based on Robert's Rules of Order, the abstained votes do not count at all. Which would make the vote invalid.

But in a California state appellate court decision (Dry Creek Valley Assn., Inc. v. Board of Supervisors; 67 Cal. App. 3d 839), abstentions go with the majority and Robert Rules of Order does not count. In that ruling, the appellate court referred to Government Code section 25005 as the deciding factor. The decision stated, "A majority of the members of the board constitute a quorum for the transaction of business. No act of the board shall be valid or binding unless a majority of all the members concur therein."

The court went on to state that a vote must be a majority of the body not the quorum so when there are only three members, a two-yes and one-no vote does not pass but a two-yes and one-abstain does.

The court found "in any of these events the requirement of section 25005, that a majority of all members of the board shall concur for passage of a measure, is satisfied."

And then the board has set its own precedence when in 2010, the board was looking to fill a seat vacated by Dr. Francisco Tejeda. At that time the board voted 2-1 to appoint Beatrice "Quitty" Piñon to the seat (board member Tim Maley abstained) and deadlocked 2-2 on appointing Floyd Marlowe to the board. Piñon opponents declared the vote to be invalid and so Supervisor John Benoit stepped in and appointed Beverly Mays to the board.

It should be clear that there is no clear answer to last week's vote.

Part of the problem is the board operates under such ambiguous rules. No where in the district's bylaws does it clearly spell out how an "abstained" vote translates for the board. The most current bylaws made available by the hospital are dated 2006. Multiple requests for the most updated version have gone unanswered. So if, we the constituents are unable to view current bylaws, we don't know for sure the board members have access to current bylaws.

Another problem arises with the request even being made to the board about using taxpayers money to defend Hudson. It seems strange that a victim would be asked to pay for the defense of the accused. It would be like the victims of the Enron fiasco asked and agreeing to pay for Jeffrey Skilling, Enron Corporation, chief executive's defense. But according to Bob Stern, Center for Governmental Studies president, "As the charges relates to the position as a board member, covering legal fees is legal. Not necessarily ethical."

What we know is Palo Verde Healthcare District Board of Directors President Trina Sartin and Board Secretary Sam Burton voted in favor of giving Hudson the money. And Board Treasurer Beatrice "Quitty" Piñon and Board Vice President Catalina "Cat" McLain abstained from voting, with none of the directors voting against the vote.

We also know the decision is not as "cut and dried" as it appears on the surface. We also know confusion has been known to start wars and it's known to serve as a diversion while criminals get away.

The board can clear up all this confusion by taking a more open approach and hold study sessions in addition to regular meetings. The board really needs to engage itself in the heart of the community and not its own personal agendas, whatever those may be. Board of Directors, only you can stop the confusion and offer up an explanation to the public.

Everyone may not agree with the decision made but, we, the people, the rightful Palo Verde Hospital owners, deserve to hear why the decision was made and who is paying for Hudson's defense really helps.

Related Stories:
• Palo Verde Healthcare District Board agrees to pay for Director Hudson's defense
• Hospital board director Hudson arrested Jan. 13


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Reader Comments

Posted: Friday, March 7, 2014
Article comment by: Check This Out

(deleted)

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Posted: Friday, March 7, 2014
Article comment by: @ laws work...

Why should this hospital and community keep paying for all Dr's shameless lawsuits against other members of this community - especially after paying him a fortune for his erratic, immature behavior as a physician on call, etc? He and hudson are accused of a crime against the very hospital that has already paid him plenty. He also sabotaged pvh when he left us hi & dry when he went on vacation to his Iranian homeland. If you will remember, pvh lost big time in the way of scheduled surgeries, social security monies, dept's being closed, and if I remember right - this was right around the time he was having a fit because a board member he didn't like was cutting off his rant at a meeting - oh yea he sued Dr Montgomery and lost. But really its us the community who continually looses, year after year. Me thinks pvh has paid out toooo much already.

Posted: Thursday, March 6, 2014
Article comment by: Michael Teniente

Well, it's clear now. First the Government Code section 25005.

The code does not apply in this case because everyone was present. Hudson was recused for reasons of conflict of interest. So, the Robert's Rules of Order is the governing remedy here. The following is the guideline: ..."if the vote required is a majority or two thirds of the members present, or a majority or two thirds of the entire membership, an abstention will have the same effect as a "no" vote."

The abstention vote is counted as a no vote. The four members present represent the "entire membership" because, again, Hudson is recused. It isn't that she is or isn't there. It's a conflict of interest even if she was there. So, in this case a quorum is not the governing remedy. Now, if Hudson were absent for any other reason, then the Government Code section 25005 would be the governing remedy.

What?

The action taken by the board is invalid.

mike t.

p.s. Next time I'll actually read the whole thing before I comment. lol!


Posted: Monday, March 3, 2014
Article comment by: To Laws work for those you hate too

Big difference! Hudson and Sahlolbei are Criminal Charges not civil lawsuit...

Posted: Monday, March 3, 2014
Article comment by: Laws work for those you hate too

Hudson is legally entitled to be covered as she is not proven guilty. The board does not get paid and the hospital is covering the expenses of the past board members who are involved in a lawsuit. Why is Hudson not covered just like Catalina and Quitty are?

Posted: Monday, March 3, 2014
Article comment by: Good Job Board!

The board needs to ensure fairness by voting now to pay for Sahlolbei's legal bills.

Posted: Thursday, February 27, 2014
Article comment by: Michael Teniente

Hey,

I think I just confused myself!

mike t.


Posted: Thursday, February 27, 2014
Article comment by: Proving the point

Michael T., you proved the point of this op-ed! It is confusing and the board needs to update their bylaws or clear up the mess! All it seems the board does is protect their own interests and not the interests of the people of the district. Shame on the board members for "approving" to pay for the accused legal fees when the crime she is accused of committing is against the district which is all the taxpayers in the district.

Posted: Thursday, February 27, 2014
Article comment by: Michael Teniente

Simply put: isn't it a conflict of interest to pay for the legal defense of someone who has acted in a way that is a conflict of interest in and of itself?

I mean, that's just like saying:

a two-yes and one-no vote does not pass but a two-yes and one-abstain does.


lol!

mike t.


Posted: Thursday, February 27, 2014
Article comment by: Michael Teniente

"...when there are only three members, a two-yes and one-no vote does not pass but a two-yes and one-abstain does."

Now this: if a board consists of just three members, then a quorum is two of the members showing up. Now, the only way a quorum can be represented by the number three is if the board consists four or five members. But, clearly, the court is not referring to a quorum, because it had just stated that a quorum can conduct business but it's not binding until a majority of the whole board concurs -me thinkest-.

This language:
a two-yes and one-no vote does not pass but a two-yes and one-abstain does.

It has to be tied into the definition of what a vote to abstain represents. Unless that's a misprint, that language doesn't make sense, because if the court is referring to all the members of the board, a two-yes and one-no is a majority, and they're saying it doesn't pass? But a two-yes and one-abstain does? I mean, the example is of a complete board of three. Is the court saying all members must concur? By saying that, then a vote to abstain is referred to as a yes vote? And if so, then a two-yes and one-abstain would be considered all members concurring. But the court just said that "a majority" is required to concur. Brilliant!

mike t.


Posted: Thursday, February 27, 2014
Article comment by: Michael Teniente

Now for this section:

"The court went on to state that a vote must be a majority of the body not the quorum so when there are only three members, a two-yes and one-no vote does not pass but a two-yes and one-abstain does."

That doesn't make any sense at all. First the court states that business can be conducted with a quorum. Then in the next sentence they require majority of the body. What are they saying? That the majority of the five members must concur? Either way it cut, there is no majority in this case. Unless they mean that a quorum can conduct business, but its not binding until the majority of all the members of the body concur -put to a vote-.

Well, with Hudson recused the four members present is the whole membership of the board. Again 2-yes 2-abstain, that is not a majority.

The thing that needs to looked at is the bylaws that define what a vote to abstain represents. The ability to abstain is a legal move, and if legal, it has to have guidelines which govern the process. Go look it up and your problems is resolved.

mike t.


Posted: Wednesday, February 26, 2014
Article comment by: Michael Teniente

CORRECTION:

"Two out of five members present and voting is not a majority."

I mean to say: Two out of four members present and voting is not a majority. The four members present represent the quorum.

Not binding!

mike t.


Posted: Wednesday, February 26, 2014
Article comment by: Michael Teniente

No act of the board shall be valid or binding unless a majority of all the members concur therein.

One more time. A majority of the quorum must concur. Two abstain that does not qualify their vote as a non-vote. Their votes are valid they are neither nay nor yea. And since they are counted as legitimate votes they register as part of the quorum, and two out of four is not a majority.

Nowhere in Government Code section 25005 is it stated that an abstaining vote constitutes a "non-vote." Because if that were the case, the the criteria for the quorum is not satisfied. Two out of five members present and voting is not a majority. The quorum is satisfied when a majority of the board is present to vote, not present to look on.

mike t.


Posted: Wednesday, February 26, 2014
Article comment by: Michael Teniente

Government Code section 25005

"A majority of the members of the board constitute a quorum for the transaction of business. No act of the board shall be valid or binding unless a majority of all the members concur therein."

Quorum: merriam-webster.com
: the smallest number of people who must be present at a meeting in order for decisions to be made.

In this case the number of board members is five. Four showed up, that meets the requirement of the law. If that were it, the vote is valid. But the sticking point is this: "No act of the board shall be valid or binding unless a majority of all the members concur therein..."

This is the legal question: How can the "majority" concur when two members abstained? Government Code section 25005 states that all members must concur therein. Within that language the quorum is implied.

In other words: There are five board members. Four out of five members present -the majority- fits the criteria of a quorum. That means the board can do business. But no act by the board shall be valid or binding unless a majority of all the members -PRESENT! the quorum (all the members present)- concur therein. The vote was 2-yes 2-abstain. That is not a majority.

The act therefore is not binding.

mike t.


Posted: Wednesday, February 26, 2014
Article comment by: To @ Times Editorial

Thats great! Except the Brown Act requires a majority vote of the Body.
The PVHD Body is 5 therefore requiring at least a yes vote of 3 members to pass.....



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