Does Oregon's separation-of-functions rule for medical-board investigations reduce the number of votes needed to discipline a licensee?

Plain-English summary

Senate Bill 467 (Oregon Laws 1997, ch. 792) amended ORS 677.208(2) to disqualify Board of Medical Examiners members from voting on a contested-case final decision if they had participated in investigating the licensee. The Board asked the AG two related questions: did the amendment lower the number of yes-votes required for Board action, and what kinds of activities counted as "participating in the investigation"?

Chief Counsel Donald Arnold answered: no change to the vote count, and a narrow reading of "participation." Under ORS 174.130, a board's "authority conferred by law" is exercised by a majority of all its members unless a statute says otherwise. The Board has 11 members, so six yes-votes were required to act, regardless of how many members were absent or disqualified. The amendment did not change this. As for participation, only members who took direct part in the investigative activities authorized by ORS 677.320(2) or ORS 677.415(4) were disqualified. Routine board meetings to decide what to do with a complaint, including reviewing the investigative file in advance, did not count as participation.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why didn't the disqualification reduce the threshold?
A: ORS 174.130 sets the rule for boards whose enabling statutes are silent on quorum and voting. The "authority conferred by law" is held by all members, so a majority of all members is required to exercise it. Disqualification removes a member from voting on a particular matter, but it doesn't change the total membership figure that the majority is computed against. The result is similar to recusal for bias or financial conflict: the disqualified member is excluded, but the math stays the same.

Q: What if six members are present and three are disqualified?
A: The Board still needs six yes-votes from the remaining three to take action, which is mathematically impossible. The opinion did not address this edge case, but the implication is that the Board would be unable to act on that particular matter with that particular set of disqualifications.

Q: What does "participate in the investigation" mean concretely?
A: Directly taking part in any of the activities listed in ORS 677.320(2): taking evidence, depositions, or testimony; compelling appearance of witnesses; requiring answers to interrogatories; or compelling production of books and papers. It also includes participating in informal interviews under ORS 677.415(4).

Q: Can board members review the investigation file before voting?
A: Yes. The amendment expressly said: "A meeting of the board to determine what further action, if any, should be taken regarding the licensee or applicant is not part of the investigation." The AG extended this to include reviewing investigative materials in connection with such a meeting. Reading the file before voting is decision-making, not investigating.

Q: Was there an exception for the public member?
A: Yes. ORS 677.208(2) provided that one public member could participate in both the investigation and the final decision. The opinion noted this and applied the disqualification rule only to the other members.

Background and statutory framework

The Board of Medical Examiners had 11 members appointed by the Governor (ORS 677.235(1)). The Board's enabling statutes did not specify a quorum or voting threshold, so ORS 174.130's default applied: a majority of all members was required to exercise the Board's authority. That meant six yes-votes for Board action, with six members needed for a quorum.

SB 467 (Oregon Laws 1997, ch. 792, § 21) amended ORS 677.208(2) to disqualify investigating members from contested-case final decisions, with one public-member exception. The amendment also clarified that ordinary board meetings to decide further action were not "investigation."

ORS 677.320(2) lists the formal investigative actions the Board can take. ORS 677.415(4) authorizes informal interviews with licensees suspected of medical incompetence or unprofessional conduct. ORS 677.280(1) authorizes the Board to employ investigators rather than do investigative work itself.

The opinion treated the disqualification as functionally similar to disqualification for bias or financial conflict, citing the New Jersey case King v. New Jersey Racing Com'n and general principles of parliamentary law.

Citations and references

Statutes:
- ORS 174.130, default rule for board authority
- ORS 677.208(2), participation-investigation disqualification
- ORS 677.235(1), Board membership
- ORS 677.280(1), authority to employ investigators
- ORS 677.320(2), board investigative powers
- ORS 677.415(4), informal interview authority
- Oregon Laws 1997, chapter 792 (SB 467)

Cases:
- King v. New Jersey Racing Com'n, 511 A2d 615 (NJ 1986), disqualification does not change quorum requirement

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1997/11/op1997-6.pdf

Original opinion text

November 7, 1997
Kathleen Haley, Executive Director
Board of Medical Examiners
1500 SW 1st, Suite 620
Portland, OR 97201
Re: Opinion Request OP-1997-6
Dear Ms. Haley:
You have asked for advice regarding Oregon Laws 1997, chapter 792 (Senate Bill 467) and its
ramifications on the investigative activity of the Board of Medical Examiners (board). We set forth your
questions and our short answers below, followed by a discussion.
1. Does ORS 677.208(2), as amended by Oregon Laws 1997, chapter 792, section 21, change the
number of board members who must vote in favor of a particular action in order to authorize that
action?
No. Board action will continue to require an affirmative vote of at least six members of the board.
2. What board activities will constitute "participat[ion] in the investigation of licensee" to disqualify
members from participating in the final decision of the board following a contested case hearing?
Board members who take a direct role in investigating an applicant or licensee may not participate in the
board's final decision following a contested case.
Discussion
1. Voting Requirements for the Board
The board consists of 11 members appointed by the Governor. ORS 677.235(1). The board's statutes do
not specify the number of members that constitute a quorum or the number of votes required to take
action.
Under Oregon law, when a board's enabling statutes do not dictate a quorum or voting requirement, ORS
174.130 applies. ORS 174.130 provides:
Any authority conferred by law upon three or more persons may be exercised by a majority of them
unless expressly otherwise provided by law.
We have previously interpreted this statute to require
a majority of all members of the board, commission or council to concur in order to make a
decision. When ORS 174.130 applies, a majority of those present and voting in favor of a
particular action is not sufficient to authorize that action unless that majority is more than
one-half of the total members of the board, commission or council. For example, in the case
of a 13-member board, if only 11 persons were present, six votes for a proposition would be
insufficient to authorize any action because six votes would not constitute a majority of the
members of that board even though it would constitute a majority of those present.
Oregon Attorney General's Administrative Law Manual, Appendix D, Parliamentary Procedure,
Quorums and Voting, p. D-3 (1995) (footnote omitted).

Because the board has 11 members, at least six members must be present for a quorum. In addition, at
least six members must vote in favor of a particular action in order for the board to authorize that action.
ORS 677.208(2), as amended, provides in relevant part:
Following a contested case hearing, the members of the board who participated in the
investigation of the licensee, except for one public member, shall not participate in the final
decision of the board. A meeting of the board to determine what further action, if any,
should be taken regarding the licensee or applicant is not part of the investigation. * * *
Under this statute, except for one public member, any board member who participates in the
investigation of a licensee is disqualified from participating in the final decision of the board. You ask
whether such a disqualification would effectively reduce the number of board members required to
constitute a quorum or to vote to take action when the board makes a final decision after a contested case
hearing involving a licensee.
The disqualification mandated by ORS 677.208(2) is not unlike that for bias or conflict of interest, where
one or more decision-makers are disqualified for having prejudged a matter or for having a pecuniary
interest with regard to persons or issues that are the subject of the hearing. Such disqualification does not
change a board's quorum requirement or permit the disqualified member to be counted in determining the
presence of a legal quorum. See King v. New Jersey Racing Com'n, 511 A2d 615, 618 (NJ 1986); 59
Am Jur 2d, Parliamentary Law, § 7 (1987). Nor have we found any suggestion that such a
disqualification would alter the requirement under ORS 174.130 that the board's authority be exercised
by a majority of the entire board.
We have previously advised that unfilled positions on a board, commission or a council have no bearing
on the requirements of ORS 174.130. See Letter of Advice dated June 8, 1989, to John F. Hoppe, Acting
Executive Director, Board of Police Standards and Training (OP-6322), at 3-4. We believe a similar
conclusion would apply to a statutory disqualification of one or more members.
ORS 174.130 refers to "authority conferred by law upon three or more persons" and provides for that
authority to be exercised by a majority of them "unless expressly otherwise provided by law." ORS
677.235(1) created the board with 11 members, thus conferring authority to act upon that entire board,
which authority may be exercised by a majority of those 11 members, or six members. ORS 677.208(2)
does not provide, expressly or otherwise, for the board's authority to be exercised by less than six
members of the board. Rather, ORS 677.208(2) merely disqualifies individual board members from
deciding a contested case if the members participate in an investigation of a licensee that gives rise to a
contested case.(1)
The fact that particular board members may be disqualified from voting does not change the requirement
in ORS 174.130 that a minimum of six board members must concur by vote for the board to act.
2. Board Member Participation in Investigations
ORS 677.320 authorizes the board to investigate complaints of any alleged violations of ORS chapter
677. The specific investigative actions that the board may take are described as follows:
2. In the conduct of investigations, the board or its designated representative may:
a. Take evidence;
b. Take the depositions of witnesses, including the person charged;

c. Compel the appearance of witnesses, including the person charged;
d. Require answers to interrogatories; and
e. Compel the production of books, papers, accounts, documents and testimony
pertaining to the matter under investigation.
ORS 677.320(2). In addition, ORS 677.415(4) authorizes the board to order an "informal interview" with
any licensee who, in the opinion of the board, may be medically incompetent, guilty of unprofessional or
dishonorable conduct or unable to practice safely because of an impairment. Board members who
participate in any of the investigative activities authorized by ORS 677.320(2) or 677.415(4) would be
disqualified from participating in the board's final decision of the resulting contested case. ORS
677.208(2), as amended.(2)
ORS 677.208(2), as amended, provides that "a meeting of the Board to determine what further action, if
any, should be taken regarding the licensee or applicant is not part of the investigation." In order to make
an informed decision on whether to initiate disciplinary action based upon a complaint against a licensee
or applicant, the board would need to review the board's file on the licensee or applicant, including any
investigation report and related materials. Accordingly, we believe that not only the meeting itself, but
also a board member's review of investigative file materials in conjunction with such a meeting for
purposes of determining what further action the board should take would not constitute participating in
the investigation.
The concept of active involvement, implicit in the common meaning of "participate," is the
distinguishing factor. Board members who take direct part in the investigative activities authorized by
ORS 677.320(2) and ORS 677.415(4), except for one public member, will be deemed to have
participated in the investigation and thus be disqualified from taking part in the final decision of the
board on any given contested case.
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division

1. Moreover, ORS 677.208(2) does not by itself deprive board members of their authority to decide contested cases. The board members are deprived of their authority to act only if the members by their own actions participate in an investigation. No statute requires board members to participate in an investigation. Rather, ORS 677.280(1) expressly authorizes the board to employ investigators for purposes of securing evidence of violations of chapter 677.

2. One public member is exempt regardless of that person's investigative involvement in a given case. Id.