Kraft v. State Bd. of Nursing
| Decision Date | 20 July 2001 |
| Docket Number | No. 20000320.,20000320. |
| Citation | 631 N.W.2d 572,2001 ND 131 |
| Parties | Bonnie KRAFT, Petitioner and Appellant, v. North Dakota STATE BOARD OF NURSING, Respondent and Appellee. |
| Court | North Dakota Supreme Court |
Carl O. Flagstad, Minot, ND, for petitioner and appellant.
Calvin N. Rolfson (argued), Special Assistant Attorney General for the Board of Nursing and Brian L. Bergeson (appeared), Rolfson Schulz Lervick & Geiermann Law Offices, P.C., Bismarck, ND, for respondent and appellee.
[¶ 1] Bonnie Kraft appeals from the district court order affirming, with one exception, the order of the North Dakota State Board of Nursing ("Board"), which suspended for one year Kraft's license to practice nursing in North Dakota, and appeals from the district court order denying Kraft's motion for relief on the basis of alleged improper ex parte communications. We affirm the Board's order in all respects and affirm the district court's denial of the motion for relief.
[¶ 2] In 1988, Kraft was licensed by the Board as a registered nurse. In November 1999, the Board filed a complaint against Kraft alleging that Kraft was observed to be under the influence of a chemical substance at work; refused her employer's request to submit to a chemical screening evaluation; was suspended from her employment as a result of her refusal to consent to the screening test; and was convicted of simple assault in April 1998.
[¶ 3] After a hearing, the administrative law judge ("ALJ") recommended findings of fact and conclusions of law, as well as an order. The recommended findings indicated Kraft was observed at work on January 22, 1999, by two doctors and three nurses who reported Kraft slurred her speech, mispronounced two easy first names of patients, had problems with equilibrium, laughed frequently, and her breath smelled fruity like alcohol or acetone. Both doctors notified the nursing supervisor that Kraft needed a blood or urine test to detect chemical impairment. Kraft was transported to the emergency room where a nurse twice informed Kraft she needed to be medically screened to rule out the presence of any alcohol or drugs, and if she refused to be tested, hospital policy mandated her suspension from work. Kraft refused to be tested, without offering an explanation. Two emergency room nurses observed Kraft to be agitated while talking on the phone apparently to an attorney. The nurses also observed Kraft to be belligerent, red-faced with dilated and red-rimmed eyes, and Kraft had difficulty speaking and gave inaccurate and unusual answers to the nurses' questions. Subsequently, Kraft was suspended from practicing at the medical center for refusing to take the required chemical tests. The medical center's published policy is that refusal to submit to a drug and alcohol test shall be considered a positive test and insubordination which may result in termination.
[¶ 4] The ALJ stated the greater weight of the evidence did not show Kraft was obviously or definitely impaired by alcohol or a prohibited chemical substance at work; rather, the evidence showed Kraft was possibly or likely impaired. The ALJ indicated the doctors' observations of Kraft presented the possibility of a clear and present danger to patients, but Kraft possibly could have worked her shift without incident. The ALJ concluded Kraft did not refuse unreasonably a proper request of her employer to submit to a chemical evaluation, as Kraft based her refusal on her attorney's advice and on basic notions of unfairness because the medical center did not follow its own testing procedures; thus, Kraft did not have a "real opportunity to explain her situation." The ALJ noted the medical center's procedural irregularities in testing, such as not completing all required forms and failing to involve various other staff in the testing.
[¶ 5] The evidence before the ALJ showed Kraft was arrested and charged with a misdemeanor assault for domestic violence in April 1998, after hitting and scratching a man at her home while she was under the influence of alcohol. Kraft pled guilty and spent three nights in jail. The ALJ concluded Kraft's conviction for misdemeanor assault is a crime of violence of willfully causing bodily injury to another human being, which is "opposite" to the standards of nursing practice and adversely relates to the practice of nursing. Because five years had not passed since the assault, there was no presumption of rehabilitation, and no evidence showed Kraft was rehabilitated. However, because the assault was in Kraft's own home and she was intoxicated at the time, the ALJ recommended not subjecting Kraft to severe disciplinary action for committing this crime alone, as it was the only allegation in the complaint proved by the evidence. The ALJ recommended ordering a one-year suspension of Kraft's license, but not invoking the suspension unless Kraft further violated nursing practices within one year.
[¶ 6] The Board accepted some of the ALJ's recommendations, with the following exceptions. The Board found sufficient evidence to prove by a preponderance that Kraft came to work under the influence of a chemical substance. The failure of the medical center to complete its own chemical screening forms did not excuse Kraft's obligation to submit to the required chemical screening test, and her behavior was not excused by the ALJ's belief that Kraft was not given a real opportunity to explain her situation. The employer's technically incomplete fulfillment of its policy provisions does not bind the Board. The evidence need not show Kraft was definitely impaired, but rather the burden of proof requires a preponderance of the evidence showing her impairment. Thus, the Board concluded sufficient facts were presented at the hearing to demonstrate by a preponderance of the evidence that (1) Kraft engaged in actions inconsistent with the practice of nursing; (2) Kraft is unfit or incompetent to practice nursing by reason of negligence, patterns of behavior, or other causes established by the Board; and (3) Kraft practiced nursing without sufficient knowledge, skills, or nursing judgment and in a manner inconsistent with acceptable nursing standards. The Board ordered Kraft's license to practice nursing suspended for one year, ordered Kraft to obtain chemical dependency and psychiatric evaluations from treatment professionals approved by the Board, and assessed a $1,000 penalty.
[¶ 7] Kraft appealed the Board's order to the district court and also moved for leave to obtain additional evidence, if the Board denied making improper ex parte communications, to prove the discipline imposed by the Board was excessive. The district court denied her motion, as Kraft cited no supporting authority or argument and did not say what additional evidence would be adduced or why it would be appropriate to allow her to supplement the record. Kraft then moved the district court to reconsider her motion for leave to obtain additional evidence, arguing the executive director of the Board and the Board's counsel participated in the hearing and later had improper ex parte communications influencing the Board's decision-making process, so additional evidence was necessary to determine the extent of the violation. The district court denied Kraft's motion for reconsideration on the basis that it was dilatory and because Kraft had "nothing but a hunch" that the executive director had engaged in anything other than ministerial acts outside her role as an expert witness at the hearing.
[¶ 8] Subsequently, the district court issued a memorandum opinion, affirming the Board's order except as to Kraft's refusal to submit to blood or urine testing. The district court agreed Kraft was under the influence of a chemical substance at work and her prior conviction for simple assault, with no evidence of rehabilitation, was inconsistent with the standards of nursing practice. However, the district court disagreed that Kraft unreasonably refused to submit to a chemical and medical screening evaluation, as the medical center did not follow internal testing policies and procedures and Kraft's attorney advised her not to submit to testing.
[¶ 9] Kraft next moved for relief from the district court's order, alleging the minutes of the Board's meeting on March 16, 2000 and the affidavits of the Board's counsel and a registered nurse who investigates for the Board provided evidence of a systemic disregard of improper ex parte communications by the Board's counsel in advising the Board. The district court denied the motion, stating there was no authority for the motion, the argument was considered previously, and "[n]othing new is presented." Kraft appeals from this order and from the district court's order affirming the Board's decision.
[¶ 10] On appeal from a district court's review of an administrative agency's decision, we review the agency decision, not the district court decision. Vernon v. N.D. Workers Comp. Bureau, 1999 ND 153, ¶ 8, 598 N.W.2d 139. However, the district court's analysis is entitled to respect if its reasoning is sound, because the legislatively mandated review by the district court cannot be ineffectual. Sherman v. N.D. Workers Comp. Bureau, 1998 ND 97, ¶ 7, 578 N.W.2d 517. We must affirm the agency's decision unless: (1) the agency's decision is not in accordance with the law, (2) the agency's decision violates the appellant's constitutional rights, (3) the agency failed to comply with the provisions of N.D.C.C. ch. 28-32 during its proceedings, (4) the agency rules or procedures have not afforded the appellant a fair hearing, (5) the agency findings of fact are not supported by a preponderance of the evidence, or (6) the agency's conclusions of law and decision are not supported by its findings of fact. N.D.C.C. §§ 28-32-19, 28-32-21; see also Singha v. N.D. State Bd. of Med. Exam'rs, 2000 ND 134, ¶ 6, 613 N.W.2d 34
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