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Some State Boards and Commissions Had Vacancies That the Office of the Governor Did Not Fill Immediately When Members’ Terms Ended.

Without a full complement of appointees, boards and commissions may lack the knowledge and skills to effectively meet their mission.

Table of Contents

Overview

As of the end of our audit period, the term had ended for 248 (10.6%) of the 2,341 seats5 on active state boards and commissions; these 248 seats should have been filled by the Office of the Governor (GOV) according to the Intranet Quorum (IQ) database. Additionally, during our audit, we noted that GOV did not always maintain complete and accurate information about appointments in IQ. When boards and commissions are without a full complement of appointees, they may lack the knowledge and skills to effectively meet their mission and may encounter difficulty securing a quorum to officially conduct business.

Based on our initial analysis, as of the end of our audit period, 230 (92.7%) of the 248 vacancies we identified had existed for 200 calendar days or longer:

Days Vacant as of June 30, 2020

Number of Board/Commission Seats Vacant

Less than 200

18

200–1,000

78

1,001–2,000

81

2,001–3,000

22

3,001–4,000

23

Over 4,000

26

Total

248

 

Additionally, of the 2,341 total active seats, there were 97 new seats from 22 boards and commissions that were created during the audit period, and IQ indicated that 4 (4.1%) of these were vacant at the end of the audit period. The existence of 586 boards and commissions, and continued creation of boards and commissions, may result in duplicative work.

During our analysis, we identified 24 instances where appointments by the Governor to boards and commissions were not listed in IQ. According to GOV officials, these were omitted from IQ in error.

Additionally, in its interim response to our audit testing, GOV identified 212 instances where a seat on a board or commission was reported as vacant in IQ, but the board or commission was actually inactive and no longer meeting. GOV did not accurately document in IQ that these 212 seats were for boards and commissions that were inactive.

GOV also identified 72 instances where IQ did not list a seat as filled, but GOV officials researched the vacancy and determined that the seats were filled with an active appointment. GOV did not accurately document in IQ that these 72 seats had an active board or commission member appointed.

Without ensuring that board and commission appointment information is complete and accurate in its database, GOV cannot effectively manage the filling of vacancies.

Authoritative Guidance

Regarding the Governor’s responsibility to appoint seats to boards and commissions,6 GOV’s website states,

Governor Baker appoints citizens to more than 700 boards and commissions dealing with virtually every state department and public policy area.

Each state board’s or commission’s enabling legislation describes its composition and, if applicable, GOV’s appointment responsibility and authority. For example, Section 42 of Chapter 13 of the Massachusetts General Laws states,

There shall be a board of registration of cosmetology and barbering to consist of 9 members who shall be appointed by the governor, 1 of whom shall be designated as chairperson by a majority vote of the board. Members shall be appointed for terms of 3 years; provided, however, that any person designated to fill a vacancy shall be appointed only for the remainder of the unexpired term of the member so replaced. Upon the expiration of a term of office, a board member may continue to serve until a successor has been appointed and qualified.

Reasons for Vacancies

GOV’s Boards and Commissions Office (BCO) has not established a process that effectively monitors upcoming board and commission vacancies so they can be filled immediately when members’ terms end. Additionally, GOV does not have an adequate process in place to monitor the creation of new boards and commissions. Finally, GOV has not established any policies and procedures to ensure that the information entered in IQ is complete and accurate.

Recommendations

  1. GOV should enhance its process to monitor all required appointments by the Governor to ensure that state boards and commissions are filled with appointments by the Governor immediately when members’ terms end.
  2. GOV should implement a review process for any new board or commission created to ensure that it is not duplicative and does not have a mission similar to that of an existing board or commission, and GOV should combine duplicate responsibilities to create a single board or commission.
  3. GOV should develop policies and procedures to ensure that IQ accurately contains all active state boards and commissions and the appointments made to them.

Auditee’s Response

Seats that are truly vacant, with no one serving either in term or in holdover, should be filled with qualified individuals as soon as possible. The report’s concern, however, that there were vacancies not filled “immediately when the members’ terms ended,” seems to suggest a problem that does not reflect the reality of board turnover, recruitment, and the appointment process. This finding ignores that board and commission members appointed by the Governor continue to serve in holdover before they are re-appointed for a subsequent term or a successor is appointed to take their seat. General Laws c. 30 § 8, allows members appointed by the Governor to serve and exercise all the powers of the public office when serving in holdover status. The policy reasons supporting this provision are well established.

The table [in Finding 1], therefore, would be more accurate if it accounted for holdover service by calculating the number of days vacant based on the end of a member’s actual service rather than the end of the member’s term.

We have a related concern that the finding’s focus on whether seats were filled “immediately when the members’ terms ended,” where no statute or rule specifies a required window for re-appointment, suggests a problem of legitimacy or legal authority for members serving in holdover that does not exist. These members were lawfully serving the Commonwealth.

We also observe that the OSA’s calculation overstates the percentage of vacancies by excluding all the members who served without a term or coterminous to the Administration because OSA reviewed only appointments with a term-end date. This methodological approach under-reported BCO’s actual performance in filling available seats. OSA’s approach also fails to recognize or give BCO credit for filling appointments to these seats and further fails to recognize these members’ service.

Finally, the report’s statement that BCO “did not always maintain complete and accurate information about appointments in IQ” ignores the high accuracy with which most appointment information was entered into the IQ database during the audit period. The audit report identified 96 instances out of 2,341 seats tested where some appointment information was inadvertently omitted from the IQ database during the audit period. This data entry error rate (4%) is within acceptable standards. Additionally, in all instances where appointment information was not properly entered into the IQ database, the BCO properly maintained the appointment information in other office records.

Response to Recommendations

Recommendation 1 . . .

The BCO fills vacant seats with qualified individuals as soon as possible. The BCO prioritizes qualifications of the candidate when filling board and commission seats. It is more important to find a qualified candidate to serve than to fill a vacant seat immediately with an unqualified candidate. Additionally, there is no need for the BCO to fill a seat immediately at the end of a member’s term, if the member is willing to serve in holdover status.

The BCO has a process to monitor all appointments legally required by the Governor. BCO staff are made aware of vacancies by board members as well as by a board or commission’s staff member, Secretariat, or agency staff member that provides administrative support to a board or commission. Vacancies are then recorded in the IQ database, including the reason for departure. This process was the standard practice followed during the audit period and was memorialized in a written policy and procedure document that was distributed to all Boards and Commissions staff members in December 2020.

The BCO has increased the frequency of its meetings with board or commission staff members, Secretariats, and agency staff members that provide administrative support, to ensure that the BCO’s records are current. Additionally, the BCO is implementing a quarterly review of the IQ database data with appropriate board and commission staff, Secretariat, or agency staff, to ensure that the BCO is aware of any upcoming or unforeseen vacancies.

Recommendation 2 . . .

Most boards and commissions are created by the Legislature. Consequently, the Office of the Governor does not have legal authority to unilaterally consolidate or alter legislatively-created boards or commissions, even when they may be “duplicative” of existing bodies. A 2014 legislative audit of state boards and commissions stated, “[t]he Legislature should enact legislation to allow automatic dissolution or sunsetting of inactive commissions and to create a formal process to regularly review commissions to determine whether they should be abolished.” This Office agrees with that conclusion. [On July 30, 2014, the Senate Committee on Post Audit and Oversight published “Fulfilling Their Mandates?: A Review of Massachusetts State Boards and Commissions.”]

In some instances, the Office creates boards and commissions through the Governor’s Executive Orders. In doing so, it strives to not create duplicative boards or boards with similar missions. Executive Orders are updated as needs change.

Recommendation 3 . . .

The BCO has developed policies and procedures designed to ensure that IQ accurately contains the most up-to-date information. The BCO strives for data to be entered accurately 100% of the time and in a timely fashion. In December 2020, the BCO created a set of comprehensive, written policies and procedures for recording data in the IQ database and distributed them to BCO staff. The BCO also instructed BCO staff to enter new boards and commissions and new members as soon as possible after the appointment letters are issued.

The BCO has recently conducted a thorough review of the IQ database to produce a list of boards that were considered active and inactive during the audit period. Staff reviewed data from over thirty years. Through the review, the BCO determined that many boards and commissions existed in the database that should have been marked inactive by earlier Administrations prior to 2015. Altogether, the BCO found 177 inactive boards that were incorrectly marked as active in IQ during the audit period. Of these inactive boards, two-thirds of them (118) should have been marked inactive prior to this Administration. This type of review was a first in the history of the BCO. To keep our successors from undergoing the same laborious process, the BCO will review the IQ database in meetings with the boards’ and commissions staff, Secretariats, and other agency staff members that support each board and commission. This will include a specific review of whether a board or commission should be marked inactive.

Auditor’s Reply

In our audit, we set out to determine whether GOV immediately filled vacant Governor-appointed seats on state boards and commissions as prescribed by state laws, regulations, or executive orders. With information obtained from BCO, we analyzed IQ data, taking into account all information GOV uses to monitor vacancies. We did not include the 978 appointees that BCO has termed holdovers in the count of vacant appointments. (See “Other Matters” for further discussion of holdovers.) In our analysis, we found 248 appointment vacancies as of June 30, 2020. Therefore, we concluded that GOV had not immediately filled all vacant Governor-appointed seats on state boards and commissions.

In its response, GOV contends that the Office of the State Auditor (OSA) did not consider holdover status for the table in Finding 1. This table shows the number of days seats remained vacant. Although Section 8 of Chapter 30 of the General Laws allows members appointed by the Governor to serve in holdover status with the same authority that existed during their terms, there is no identifier in IQ to indicate that status. Moreover, there is no indication that GOV knows whether a particular holdover is actively participating on a board or commission. Therefore, we could not address holdover status when calculating the length of time between the end of the prior appointment term and June 30, 2020 for each of the 248 vacant seats.

In its response, GOV states that no statute or rule specifies when a vacant seat must be reappointed. We believe BCO should monitor appointees as they approach the end of their terms to determine which boards and commissions are expected to have upcoming vacancies and fill them with new appointments as soon as possible. The audit identified 248 vacant seats, 230 of which had existed for 200 calendar days or more. These results were the reason for our recommendation that GOV enhance its monitoring process to ensure that the Governor fill appointments immediately when members’ terms end.

In its response, GOV states that our audit did not take into consideration appointments made for seats that did not have term end dates. As detailed in the “Audit Objectives, Scope, and Methodology.” section of this report, our review focused on GOV making timely appointments to vacant seats. The percentages used in our findings were based on our consideration of board or commission seats that were not immediately filled upon vacancy. A seat with no term end date would not have a definitive vacancy date, so we did not consider such seats because there was no affirmative duty to fill them by a specific date.

Additionally, GOV contends that the 96 instances of errors we discovered in IQ in our analysis are acceptable because the error rate is 4%. GOV states that the correct information was documented in separate GOV records. However, GOV officials told OSA several times that IQ is the tool GOV uses to manage appointments. If at least 4% of appointment data in IQ is inaccurate or incomplete, GOV cannot ensure that it appropriately manages all gubernatorial appointments to boards and commissions.

Regarding the response to our first recommendation, OSA concurs that BCO has a process to monitor all appointments legally required by the Governor; however, improvements can be made to the process to ensure that appointments are made to limit vacancies. GOV’s response notes improvements such as the following:

The BCO has increased the frequency of its meetings with board or commission staff members, Secretariats, and agency staff members that provide administrative support, to ensure that the BCO’s records are current. Additionally, BCO is implementing a quarterly review of the IQ database data with appropriate board and commission staff, Secretariat, or agency staff, to ensure that the BCO is aware of any upcoming or unforeseen vacancies.

Based on these steps, it appears that GOV is taking steps to implement our first recommendation.

Our second recommendation was as follows:

GOV should implement a review process for any new board or commission created to ensure that it is not duplicative and does not have a mission similar to that of an existing board or commission, and GOV should combine duplicate responsibilities to create a single board or commission.

In its response, GOV stated that it did not have the authority to unilaterally change legislatively created boards and commissions. However, we are not recommending that GOV change boards and commissions, but that it review and provide input on the missions of proposed ones and assess whether they duplicate existing boards or commissions. If they do, BCO could propose to the Governor that the Legislature review and reassess the mission before the legislation is signed. We again urge GOV to implement our recommendation.

Our third recommendation was as follows:

GOV should develop policies and procedures to ensure that IQ accurately contains all active state boards and commissions, as well as the appointments made to them.

Based on its response to our audit, GOV appears to have taken steps to address our recommendation.

5.     In its interim response to our audit testing, GOV identified 19 ex officio seats, from the 2,572 seats that we initially identified as active seats appointed by the Governor, that should not be included in this population because they were not gubernatorial appointments. Additionally, GOV identified 212 seats that should not be included in our analysis because the board or commission was inactive. We subtracted these 231 seats from the population, resulting in a total of 2,341 seats. 

6.     GOV officials confirmed only 586 active boards and commissions during the audit period.

Date published: September 23, 2021
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