2014 VT 111


Shaddy v. State of Vermont Office
of Professional Regulation (2013-303)
 
2014 VT 111
 
[Filed 19-Sept-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 

2014 VT 111

 

No. 2013-303

 

David Shaddy


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington Unit,


 


Civil
  Division


 


 


State of Vermont Office of
  Professional Regulation


April Term, 2014


 


 


 


 


Robert
  R. Bent, J.


 

Gabriel M. Gilman, Montpelier, for Appellant.
 
David Shaddy, Pro Se, Kyburz, California, Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.[1]
 
 
¶ 1.          
DOOLEY, J.   This is an interlocutory appeal from a decision of
the superior court, on appeal from a decision of an appellate officer,
remanding this disciplinary case to the Board of Nursing to determine whether the
Board intends that the case be continued.  The central question is whether an
attorney for the Office of Professional Regulation (OPR) within the office of
the Vermont Secretary of State has the power to appeal from a Board of Nursing
decision vacating an earlier consent order suspending from practice appellee,
David Shaddy.  We conclude that the attorney had this power and reinstate the
decision of the appellate officer.
¶ 2.          
The underlying controversy resulted from a charge by Brattleboro
Retreat, an in-patient mental health facility, that while working there as a
nurse, Mr. Shaddy improperly took into his possession certain narcotic drugs. 
The charge and its consequences have been the subject of two earlier reported
decisions from this Court.  Shaddy v. Brattleboro Retreat, 2012 VT 67,
192 Vt. 215, 57 A.3d 700; Shaddy v. Dep’t of Labor, 2009 VT 103, 186 Vt.
633, 987 A.2d 311.  This case started with a report from Brattleboro Retreat to
the Board, stating its determination that Mr. Shaddy diverted the narcotics. 
In response, the Board director referred the case to an OPR attorney to bring a
summary suspension proceeding and created an investigation team consisting of
the OPR attorney, the Board director, and a Board member.  The OPR attorney
filed a charging document in the name of the State of Vermont alleging
unprofessional conduct based on the violation of four statutes and sought, and
obtained, a summary suspension of Mr. Shaddy’s license to practice nursing.
¶ 3.          
The process at this point in the case was conducted pursuant to 3 V.S.A.
§ 129(c), which provides: 
A board may assign
one or more members of the board to investigate complaints and license
applications. These members shall have the assistance of an investigator for
the Office and an attorney assigned by the Office of Professional Regulation
who shall be responsible for prosecuting disciplinary and licensing cases
before the board.
 
According to 3 V.S.A. § 123(a),
the function of OPR is to “provide administrative, secretarial, financial,
investigatory, inspection, and legal services to the boards.” 
¶ 4.          
The OPR attorney and Mr. Shaddy, then represented by counsel, reached a
consent order in February of 2011, and it was approved by the Board in April
2011.  The consent order states that it is not an admission of liability by Mr.
Shaddy but he does not dispute that the State could prove its charges by a
preponderance of the evidence.  The consent order continued Mr. Shaddy’s
suspension and set the conditions for reinstatement of his license.  Just over
a year later, in April 2012, Mr. Shaddy, without counsel, sent the Board a
letter seeking that the Board vacate or amend the stipulated order because he
did not commit the unprofessional conduct alleged and he signed the stipulation
under duress from his attorneys who threatened to cease representing him if he
did not sign.  He included with the letter a packet of supporting materials. 
The OPR lawyer filed an objection to Mr. Shaddy’s request for relief.  The
Board held a hearing, presided over by a different OPR lawyer,[2]
at which Mr. Shaddy was the only witness.  Relying upon V.R.C.P. 60(b)(6), the
Board granted Mr. Shaddy most of the relief he requested, finding his testimony
was “well organized and credible,” that he showed “a good reason for his
request for relief,” that he sought relief “within a reasonable time,” that his
claims were “supported by the documentation he provided at the hearing,” that
“the evidence against Mr. Shaddy is insufficient,” that “there has been a
miscarriage of justice,” and that the facts demonstrated an extraordinary
situation “that warrant[s] the reopening of final judgment.”  The Board vacated
the consent order and suspension and dismissed the charges against Mr. Shaddy
without prejudice to bring them again.
¶ 5.          
The OPR attorney appealed the Board decision, on behalf of the State,
pursuant to 3 V.S.A. § 130a(a).  Under the statute, the Director of OPR
assigns the appeal to an appellate officer, who conducts an on-the-record
review without taking new evidence.  Id.  Generally, the appellate
officer is bound by the fact-finding of the Board and can overturn the Board
decision only “if substantial rights of the appellant have been prejudiced” for
any of seven listed reasons.  Id. § 130a(b).  In this case, the
appellate officer reversed[3]
the Board of Nursing decision for multiple reasons: (1) the Board should not
have considered evidence related to the merits of the disciplinary charges, (2)
the Board improperly failed to find grounds to vacate the earlier judgment, (3)
the facts and circumstances did not meet the standard of Rule 60(b)(6), (4) the
Board made no findings of fact, and (5) the Board improperly deprived the State
of the opportunity to offer evidence.  Mr. Shaddy then appealed the appellate
officer’s decision to the superior court, raising one relevant argument: the
OPR attorney had no power to appeal the Board of Nursing decision, and, as a
result, the appellate officer decision has to be struck.
¶ 6.          
In an extensive decision, the superior court ruled that the power to
prosecute a disciplinary complaint is vested in the Board and not in OPR.  Thus,
it ruled that if the Board’s decision was intended to exercise its power of
prosecution by withdrawing the disciplinary complaint, its decision was final
and could not be appealed by the OPR attorney.  It reached this conclusion
despite its conclusion that “the appellate officer explained in detail that the
Board’s Rule 60 proceeding and decision were egregiously flawed and the court
agrees.”  The court’s order remanded the case to the Board of Nursing “for
clarification whether its Rule 60 decision represents a determination that the
original decision to prosecute Mr. Shaddy has been replaced by a
decision not to prosecute Mr. Shaddy and any further proceedings
consistent with this decision.”  On the request of the OPR attorney, the court
granted an interlocutory appeal to this Court.
¶ 7.          
Although this appeal ostensibly involves one issue, there are actually
two issues: (1) whether the State could appeal the decision of the Board of
Nursing pursuant to 3 V.S.A. § 130a(a); and (2) whether the OPR attorney
acts for the State in filing and pursuing the appeal.  The State argues that
the first issue is determined by our decision in In re Lakatos, 2007 VT
114, 182 Vt. 487, 939 A.2d 510.  Lakatos was also a disciplinary action,
albeit for a different profession, and the professional argued that the State
could not appeal an adverse decision of the superior court to this Court.  We
answered:
Respondent has
moved to dismiss the appeal on the ground that the State is not a party that
may appeal the superior court's ruling.  The assertion is unpersuasive.  The
statutory scheme governing appeals from professional boards such as the Board
of Dental Examiners provides that a “party aggrieved” by a final decision of a
board may appeal to the director and have the matter heard by an appellate
officer.  3 V.S.A. § 130a.  Thereafter, a “party aggrieved” by the
decision of the appellate officer may appeal to the superior court.  Id.
 The State, as the prosecuting agency, was plainly a party to the proceedings
and as such would have been entitled to pursue an administrative appeal and an
appeal to the superior court, and was further entitled to appeal from an
adverse ruling by the superior court to this Court.
 
Id., 2007
VT 114, ¶ 5, n.6 (citing Office of Prof’l Regulation v. McElroy,
2003 VT 31, ¶ 1, 175 Vt. 507, 824 A.2d 567 (mem.); In re Smith, 169
Vt. 162, 164, 730 A.2d 605, 607 (1999)).  We agree with the State’s position.
¶ 8.          
We do not accept the rationale of the superior court that the charging
decision resides in the Board, and the Board could simply drop the charges for
any or no reason.  The statute describes the role of the OPR attorneys as “prosecuting
disciplinary and licensing cases.”  3 V.S.A. § 129(c).  Even though
disciplinary cases are not criminal cases, we view the designation of the OPR
lawyer as a prosecutor as significant.  “Because prosecutors function as
delegates of the executive, they retain broad discretion to enforce the law
including—so long as probable cause is present—the decisions whether to
prosecute in any given case and what charge to file.”  State v. Wesco, Inc.,
2006 VT 93, ¶ 11, 180 Vt. 345, 911 A.2d 281.  As we noted in State’s
Attorney v. Attorney General, “the legislature has often exercised its
power to provide for the commencement of prosecutions by officers other than
State’s Attorneys.”  138 Vt. 10, 13, 409 A.2d 599, 601 (1979).  The trial
court’s interpretation of the Board’s power deprives the prosecuting officer of
the most important power—to determine what charges to file, if any.  We cannot
conclude that this interpretation is consistent with the statute.
¶ 9.          
Our conclusion is consistent with the procedure followed in this case as
well as the applicable rules defining the procedure in disciplinary cases.  In
this case, the Board followed the investigatory team procedure outlined in
§ 129(c). Thus, there is nothing in the record to indicate that the Board
of Nursing had any role in the charging decision in this case.  Indeed, the
statute provides that a Board member involved in an investigation “shall not
sit in adjudication of the case and shall not participate in ex parte
communications with other board members regarding the case.”  3 V.S.A.
§ 129(c).  Exactly how the charging decision was made is unclear, but it
came from either the designated OPR attorney or the investigatory team as a
whole, not the Board.  
¶ 10.      
The procedure should be viewed in the context of the rules governing
disciplinary cases.  By statute, the Board is authorized to adopt procedural
rules governing disciplinary cases.  3 V.S.A. § 129(a)(1).  The Board of
Nursing has adopted the procedures compiled by OPR, called Administrative Rules
of Practice.  Vermont Board of Nursing, Administrative Rules, § 11.3 (June
23, 2011), https://www.sec.state.vt.us/media/540194/Nursing-Rules-2011-0623.pdf. 
The OPR rules define a case as initiated “by filing a complaint, specification
of charges, petition or other application with the Docket Clerk” at OPR. 
Office of Professional Regulation, Administrative Rules of Practice Rule 3.2
(Feb. 1, 1999), https://www.sec.state.vt.us/media/477012/OPR-Rules-for-Web-April-2014.htm. 
There is no indication in these rules of procedure that the “hearing
authority,” the term for the applicable Board, has any role in case
initiation.  
¶ 11.      
This brings us to the second issue—whether an attorney for the Office of
Professional Regulation has the power to appeal on behalf of the State. 
Although a lawyer in the Secretary of State’s office appeared for the State and
presumably filed the notice of appeal for the State, the decision did not
address whether the lawyer had that power.
¶ 12.      
OPR was created within the Secretary of State’s office by legislation in
1990.  1989, No. 250 (Adj. Sess.), § 1 (creating 3 V.S.A. § 122). 
Although the office provided “administrative, secretarial, financial,
investigatory, inspection and legal services” to the professional licensing
boards on request, id. (codified at 3 V.S.A. § 123(a)), this
legislation did not change the Attorney General’s role in prosecuting
disciplinary cases before the boards.  Thus, the boards had the obligation to
investigate complaints of unauthorized practice of the profession, but the
product of the investigation was a report to the attorney general, 3
V.S.A. § 127(a), who could bring an injunction request to the court. 
Id. § 127(b).  Complaints of unprofessional conduct were to be
“forwarded to the Attorney General.”  Id. § 129(a).  Section 129(c)
provided, as it does today, that a board could assign one or more of its
members to investigate complaints and that “[t]hese members shall have the
assistance of an investigator for the office and the Attorney General who shall
be responsible for prosecuting cases before the board.”
¶ 13.      
In two statutes in 1996, the Legislature deleted the obligation of the
boards to send a report on an unauthorized practice complaint to the Attorney
General as contained in § 127(a) and to forward complaints of
unprofessional conduct to the Attorney General as contained in § 127(b). 
1995, No. 138 (Adj. Sess.), § 12; 1995 No. 171 (Adj. Sess.), §§ 8, 9.
¶ 14.      
Finally, in 2003, the Legislature removed the Attorney General from the
investigation process in § 129(c) and substituted “an attorney assigned by
the office of professional regulation.”  2003, No. 66, § 85 (amending 3
V.S.A. § 129(c)).  At the same time, the Legislature amended § 129(b)
to give an OPR attorney the power to seek an injunction against unauthorized
practice from the court or a civil penalty of $1000 or less from the
appropriate board.  Id. § 84.  The 2003 act that accomplished these
modifications was the appropriations act.  In the same act, the Legislature
enacted a section entitled “ONE-TIME APPROPRIATION; PROFESSIONAL LICENSING UNIT
TRANSFER,” which provided: “(a) In order to facilitate the transfer of the
professional licensing unit from the office of the attorney general to the
secretary of state, $25,000.00 in general funds is appropriated to the attorney
general on a one-time basis.”  Id. § 57b. 
¶ 15.      
One statutory section, unmodified since adopted in 1997, is important to
our understanding of the actions of the Legislature.  3 V.S.A. § 129a(c)
provides that the “burden of proof in a disciplinary action shall be on the
state to show by a preponderance of the evidence that the person is engaged in
unprofessional conduct.”  This is a legislative recognition that a disciplinary
proceeding is prosecuted by the State of Vermont.  
¶ 16.      
When construing a statute, “our primary goal is to give effect to the
Legislature’s intent.”  Lydy v. Trustaff, Inc./Wausau Ins. Co., 2013 VT
44, ¶ 6, 194 Vt. 165, 76 A.3d 150.  We recognize that the Legislature
could have been more explicit in defining the role in disciplinary cases that
it assigned to OPR and its attorneys.  We are satisfied, however, that the
Legislature intended in its 2003 enactments that OPR attorneys assume the role
formerly played by the Attorney General and represent the State of Vermont in
such proceedings to discharge the burden imposed by 3 V.S.A. § 129a(c). 
We construe the statutes in Title 3, Chapter 5, Subchapter 3, with respect to
professional regulation and OPR, to embody this power.  Thus, OPR attorneys
represent the State of Vermont and may exercise the State’s power to appeal
from an adverse decision of a board pursuant to 3 V.S.A. § 130a(a).
The judgment
of the superior court is reversed.  The judgment of the appellate officer is
reinstated. 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 


[1] 
Justice Crawford was present for oral argument, but did not participate in this
decision.


[2] 
The facts do not show the internal organization of OPR.  The OPR lawyer who
appeared as the prosecutor was the same lawyer who filed the charges against
Mr. Shaddy.  He has been replaced by the lawyer who appears for OPR here and
identifies herself as “State Prosecuting Attorney.”  The OPR lawyer who
presided at the hearing of the Board of Nursing is identified as “Presiding
Officer.”
 


[3] 
The appellate officer reversed the Board decision, without a remand, but added
“with the recommendation that if any further proceedings occur in this matter
before the Vermont Nursing Board, then the case should be assigned to an
independent hearing officer appointed by the Vermont Nursing Board pursuant to
3 V.S.A. § 129(f).”


