MONTROSE – For removing Richard Harding from the Montrose Memorial Board of Trustees because he refused to submit his social security number for a background check, the Montrose County Commissioners on Tuesday evening, by a vote of 2-1, removed J. Don Vacca, Matthew Nocas and Scott Ludian from their roles as hospital trustees for allegedly acting beyond the scope of their authority.
The MMH Board of Trustees has had sharply limited responsibility for the hospital ever since 2010, when it entered into a 50-year lease for the nonprofit Montrose Memorial Hospital, Inc. to operate the facility. The county sued to overturn the lease, but lost in District Court in 2011 and again on appeal in 2012. Even while the issue this week was a seemingly inconsequential dispute over a background check, the commissioners’ strong action on Tuesday suggests that the commissioners nonetheless intend to assert some degree of control over hospital governance.
The removal of Vacca, Nocas and Ludian from the MMH Board of Trustees came at a special meeting of the commissioners Tuesday evening, one day after the Board of Trustees agreed it could not reinstate Harding because his refusal to submit his social security number contrary to the Board of Trustees policy. Hoping for a chance to speak with the trustees face-to-face on the matter, Commissioner Gary Ellis voted against their removal at the meeting.
The language of the resolution passed on Tuesday that removes Vacca, Nocas and Ludian from their duties as MMH Trustees cites six violations that are cause for their removal, including requiring members of the trustees to undergo extensive background checks, suspending a trustee (Harding) who was appointed by the commissioners, and a refusal to reinstate Harding as directed by the commissioners.
“They did not have any authority to remove a member of the trustees and they did it,” Commissioner David White said after the hearing. “It’s our authority, not theirs. Rather than prolong the agony, as it were, we had to exercise our authority to remove these people.”
White reiterated that the decision to remove the three trustees “has nothing to do with Montrose Memorial Hospital” and “everything to do with a board of trustees.”
White went on to say that he has attended a lot of trustee meetings and got the sense that the board of trustees considered the commissioners a “nuisance” and that they “wanted nothing to do” with the commissioners.
“I have been in too many of those meetings and it was so evident that they have the mindset that the Board of County Commissioners has no authority,” White said. “We do have authority and we exercised that authority today.”
Along with the violations that relate to Harding’s removal from the board, the approved resolution also alleges that the Board of Trustees permitted the MMH Board of Directors to purchase property in the name of the county, showed a lack of diligence and oversight for the protection of county-owned assets, and repeatedly showed a lack of compliance with statutory reporting to the commissioners.
“I don’t have anything to say,” Commissioner Ron Henderson said, prior to voting for the resolution. “I think the situation has spoken for itself. [The trustees] have good legal advice or at least they thought they were paying for good legal advice. I really think this resolution is in order. It’s well written and well documented and well supported. I think it’s in the best interest of the taxpayer that we do this and work further toward giving them the representation that taxpayers deserve.”
Because trustees Reed Mitchell, Mark Young and George Glasier are new appointments to the board, White said on Wednesday morning in an interview, they were given “a pass” and weren’t subject to removal. White added that because the Montrose Memorial Hospital’s Board of Directors pays for the legal fees of the MMH Board of Trustees there is a conflict of interest there as well.
“The Board of Trustees should be accountable and make the Board of Directors accountable for the financial health of the hospital,” White said. “Instead, you have a private corporation paying for [the trustees] legal bills. How does that pass the smell test? But that’s what they did. It is such an incestuous relationship.”
Ellis said he believed a face-to-face conversation would have been a better step than the resolution.
“What I would like to see happen today is to continue this,” Ellis said. “We have not had a face-to-face meeting with the trustees to convey to them our expectations and what we are looking for. I think if we had a face-to-face conversation, I think a lot of this would have been resolved. I would like to offer that opportunity, including having Richard in the discussion to see how this can be resolved.”
The commissioners appointed Harding to the hospital Board of Trustees in December 2012. Since then he has refused to provide his social security number for a background check. Harding has said that he is under no legal obligation to provide his social security number and that it’s his choice not to provide it.
In October, the Board of Trustees approved a motion that would allow its attorney, David Masters, to move forward with a lawsuit if Harding continued to refuse his number. Masters said in October that it was a serious issue for the board and that the hospital’s eligibility to be a Medicaid and Medicare provider was at risk.
‘We Have a Policy in Place’
The disagreement between the County Commissioners and the Board of Trustees over Harding’s social security number accelerated when County Manager Rick Eckert sent a letter to Vacca stating that there are no regulatory requirements, including federal and state, that members of the board must provide a social security number or undergo a background check. The letter directed the trustees to reseat Harding at its Feb. 3 meeting.
“Mr. Harding is to be seated with the board at its next meeting, with full powers of active participation, and voting on all items brought before the board,” Eckert stated in his letter. “…If appropriate assurances are not received, I will have no choice but to recommend to the Commissioners that they proceed with a quo warranto action to resolve this situation and/or consider the actions referred to and failure to resolve this matter to be cause for removal of Trustees from office for cause.”
At Monday evening’s MMH Board of Trustees meeting, which was attended by Harding, County Attorney Teresa Williams and three Montrose Police Officers, the trustees discussed Eckert’s letter in a lengthy executive session with Masters acting as their attorney.
Ultimately, six out of the seven trustees agreed to respond to Eckert’s letter with a letter of its own stating that it would be contrary to board policy to recognize Harding as a member of the board without submitting his social security number for a background check.
According to that trustees’ discussion, the policy that requires trustees to provide social security numbers has been in place since October 2010, when it was officially approved by the trustees.
“We have a policy in place,” Glasier, who was appointed to the position last month, said. “That is our policy. It is pretty simple. We have a policy. The board would have to reverse that policy to comply with [Eckert’s letter]. It’s a simple as that. We can’t do this unless we change our policy.”
Glasier made the motion to respond to Eckert’s letter with a letter from the trustees explaining their policy.
“We respond to the letter saying that’s our policy until that policy has changed,” Glasier said. “We have no option.”
Young, who also was appointed last month, asked if the board should discuss revoking that policy. It was agreed that it was “outside the meeting’s agenda” for that evening but is open for future discussion.
“What we have at this moment is a dispute between the County Commissioners and the Board of Trustees,” Vacca said Monday night. “The county manager has given a legal opinion that we do not have that right. We disagree with that.”
It is unclear what Vacca, Nocas, Ludian and Masters might do next. They could not be reached after Tuesday’s commissioners’ meeting, where the three trustees were removed from their position.
Ellis expressed concern that the removal of the trustees without trying to resolve the matter beforehand could result in more expensive legal wranglings.
“We have issues with the airport, water and a lot of things,” Ellis said. “I don’t know if this moves forward if this ends up in litigation. The last thing I want to do is spend more taxpayer dollars on legal fees on this issue if we don’t have to do it.”
(Editor's Note: This version of this story was first posted on Tuesday, Feb. 4 at 9 p.m. and was updated on Wednesday, Feb. 5 at noon to include comments from Montrose County Commissioner David White.)