Saturday, September 20, 2014

Professional Punishment Procedure

Shaddy v. State of Vermont Office of Professional Regulation, 2014 VT 111

By Andrew Delaney

This case gets into professional regulation’s procedural quirks. As one might suspect, when the SCOV has to get into such things, it’s a wee bit of a mess.

Mr. Shaddy was a nurse who was accused of diverting narcotics. He entered into a consent order suspending him from practice. Read all about that and its progeny here, here, and here. The whole thing started with Mr. Shaddy’s former employer reporting its suspicions to the Board of Nursing. The Board then referred the matter to an Office of Professional Regulation (OPR) attorney to bring summary suspension proceedings and the Board, along with the OPR attorney, investigated the complaint.

So that previously noted consent order was entered. In it, Mr. Shaddy didn’t admit liability, but he conceded that the State could prove its case by a preponderance of the evidence. At the time, Mr. Shaddy was represented by counsel. A year later, however, Mr. Shaddy filed pro se to vacate or amend the judgment on the basis that he didn’t do it and his lawyers pressured him into entering into the consent order. He included a packet of supporting materials. The OPR attorney opposed the motion.

The Board held a hearing—Mr. Shaddy being the only witness—and granted Mr. Shaddy most of the relief he requested, pretty much finding that the underlying merits were insufficient and the whole shebang was a miscarriage of justice. The Board vacated the consent order and tossed the charges.

The OPR attorney appealed to an appellate officer, who conducted an “an on-the-record review without taking new evidence.” Though the appellate officer generally has to defer to the Board and is only supposed to reverse “if substantial rights of the appellant have been prejudiced,” the appellate officer found a number of reasons to reverse the Board’s decision here. First, the Board shouldn’t have got into the merits; second, the Board didn’t find proper grounds to vacate the prior judgment; third, the facts and circumstance didn’t meet the required standard for relief from judgment; fourth, the Board made no findings of facts; and fifth, the Board didn’t give the State a chance to present evidence.

Mr. Shaddy then appealed to superior court, arguing simply that the OPR attorney had no power to appeal the Board’s decision. The superior court ruled that the prosecution power is vested in the Board and not in OPR. Thus, the superior court ruled that the appellate officer’s decision had to be struck even though it noted that “the appellate officer explained in detail that the Board’s Rule 60 proceeding and decision were egregiously flawed and the court agrees.” The superior court therefore sent it back to the Board of Nursing to determine whether it wanted to pursue the charges against Mr. Shaddy—or not. The OPR attorney requested an interlocutory appeal and the SCOV obliged.

The SCOV begins its analysis with an even-though-this-is-s’posed-to-be-one-issue-it’s-really two note: (1) whether the State can appeal a Board of Nursing decision; and (2) whether the OPR attorney acts for the State in the appeal process.

Mr. Shaddy’s argument is basically that the State is bound by the Board’s decison and doesn’t get to challenge it—the Board has the “final say. But the SCOV agrees with the State that in this situation the State is a “party aggrieved” under the statutory framework. If the SCOV were to agree with respondent that the State lacks authority to appeal, the SCOV reasons that it would essentially take away any prosecutorial discretion. The SCOV ain’t playin’ that. Sure, there’s more to it than that—the SCOV even digs into some administrative rules and such, but the bottom line is that the State has the power to appeal a Board decision. It seems the State doesn’t have to just go along with what the Board decides.

That decided, the SCOV looks to whether the OPR attorney within the Secretary of State’s office has the power to bring an appeal on behalf of the State. See, it used to be that the Attorney General’s office was the only entity that prosecuted cases of unprofessional conduct. The Board of Nursing could investigate complaints but the Attorney General would prosecute.

The legislature, over time, deleted the send-it-to-the-AG’s-office obligation. There was a one-time appropriation to “facilitate the transfer of the professional licensing unit from the office of the attorney general to the secretary of state.” Finally, the SCOV reasons that the burden-of-proof subsection of the unprofessional conduct statute places the burden on the State. So, to make a long story short, the OPR attorney does have authority to appeal on behalf of the State.

The SCOV reverses the superior court and reinstates the appellate officer’s decision.

Given this case’s history, this may not be the last we hear of it. Stay tuned.

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