The State of Missouri seems hell-bent on creating work for Jefferson City attorneys. As we reported earlier this summer (You were Warned!), the Division of Professional Registration blundered in its first move to control how the State Board of Embalmers and Funeral Directors conducts inspections of funeral homes. Since then, the Division has also declared the State Board (in 1999) ceded control of its personnel budget, and lacks the funding to hire its own inspectors. (We will follow up on this claim later because it would seem the Division should have documentation to back up such an assertion.) Even though the State Board suspended non-essential inspections until its authorities over personnel and funding could be sorted out, the Division delivered a fait de complis to unwanted funeral home inspections by stacking the State Board with 4 new members, and then sacking the Board’s executive director and preneed audit supervisor. (Underline that latter position, and we’ll come back to it in a future post.)
You may be asking how this benefits Jeff City attorneys. During a heated discussion at the State Board’s last meeting challenges were made to two new Board members about their qualifications to serve. Section 333.151 sets out the statutory requirements for serving on the State Board, and they include that the appointee be licensed as either a funeral director or an embalmer, and have been actively engaged as such for a period of five years preceding the appointment. While all three new industry board members are licensed, two do not seem to meet the 5 year active engagement requirement. One of the new board members advised he had perhaps embalmed 3 bodies during the past 5 years. Another new board member acknowledged she was a full time pharmacist at a hospital. The State should anticipate that licensees threatened with discipline will likely challenge the Board’s legitimacy and authority to the Administrative Hearing Commission. This same authority and legitimacy issue will undoubtedly be raised by attorneys bringing wrongful terminations of the State Board staff. And conceivably, this qualification issue casts a shadow on the legitimacy of every license issued by the State Board subsequent to Governor’s appointment of these two individuals. No wonder some attorneys make a living off lawsuits against the government.
Rumors are also running rampant that the Division had been actively recruiting State Board candidates that would follow orders. Concern for Division retribution would seal to silence those funeral directors who may have been approached. But the rumor may have been unwittingly validated by the Division. Last Thursday’s Board was started with the disclosure that script provided to the newly appointed Board members had been leaked. And per the script, the new Board members voted as the majority block to go into closed session to fire the staff. We have not yet obtained the ‘script’ but will be making open record requests of the new board members, the State Board and the Division. [We’ll come back in a future post about how if accurate this constitutes a gross violation of Missouri’s Sunshine Law. But then again, it has only been a few short years back to when a prior Board chairman and Executive Director also violated the Sunshine Law in attempts to influence Board decisions.]
All of this started more than a year ago when MFDEA accused the State Board of gotcha tactics when conducting inspections. In defense of the Board, they had stated a preference to hire and train its own inspectors, and thus avoid the picture taking. It was suggested that disgruntled funeral homes were complaining to Governor Parsons, and he wanted an end to the picture taking. With the practice having been tabled, why then stack the Board and terminate the staff? Had all this come to be because the Board stepped on the toes of a Governor ally? And if this had to do with gottcha inspections, why terminate the preneed audit supervisor? The next phase of preneed audits was to have included an expanded role for the Board inspectors. Sacking the staff will likely set the preneed audit process back a few years. (We’ll dive into this aspect in a future post.)