Taylor v. State, 070512 AKCNA, 3AN-11-07631 CI

Docket Nº:3AN-11-07631 CI
Case Date:July 05, 2012
Court:Superior Court of Alaska

SUSAN TAYLOR, Appellant,



No. 3AN-11-07631 CI

Superior Court of Alaska, Third Judicial District, Anchorage

July 5, 2012


Appellant Susan Taylor appeals the administrative decision by Appellee Board of Nursing (Board) conditioning her certification as a nurse aide pursuant to AS 08.68.331(a). After the Board initially rejected her application, an administrative law judge recommended the Board certify her conditioned on a S500 fine and reprimand. The Board adopted the judge's recommendation but failed to implement it. For the following reasons, the Court AFFIRMS the Board's decision and REMANDS for actions consistent with that decision.

Statutory Background

The Board administers and is empowered to regulate the certification of nurse aides in Alaska.1 Certification as a nurse aide shall be granted to qualified applicants by either the Board or, when designated, the Department of Commerce, Community, and Economic Development.2 The Board may deny certification to a person who attempts "to obtain certification as a nurse aide by fraud, deceit or intentional misrepresentation."3

The Board is required to comply with the Administrative Procedures Act.4Under the Act, if the Board denies an application for certification, an applicant can appeal the denial and request a hearing. After the hearing, an administrative law judge (ALJ) issues a proposed decision while the Board retains discretion to make a final decision.5 The Board then issues a final decision adopting the proposed decision as the final agency decision, remanding to the ALJ for further findings, adopting the proposed decision with revisions, or rejecting it altogether.6 Rejections and revisions must be done in writing noting the basis for the final decision and identifying any affected findings and reliance on testimony or other evidence.7 Judicial review is available within 30 days of the Board's decision.8

Facts and Proceedings

This is an appeal from an April 6, 2011, final decision by the Board following an administrative hearing. In January 2010, Ms. Taylor applied for certification as a nurse aide.9 One of the questions on the application was:

Have you ever been convicted of any criminal offense other than a minor traffic violation (Convictions include "suspended imposition of sentence'")?10

Ms. Taylor answered "no."11 The term ''minor traffic violation" was not defined; no definitions or statutes were cited on the form.12 Ms. Taylor was convicted of DWI in 1999.13 On April 26, 2010, in response to the Board's request, 14 she wrote a letter describing her conviction, stating:

I answered no to question 2 because I misread the question where it said other than a minor traffic violation. I have worked for cbildcare, assets and in the CNA field [sic] I never hid the fact that I had a DUL I was not hiding this information. I read the Question wTong [sic]15

Based on her answering "no" and her subsequent admission/explanation, the Division of Occupational Licensing found she should have answered "yes" and that, by answering "no, " she tried to obtain certification through "fraud, deceit or intentional misrepresentation."16 The Division suggested the matter could be resolved if she admitted this, to which she refused.17 Based on the Division's determination and her refusal, the Board denied her application for certification.18

Ms. Taylor appealed the denial, 19 which was heard by ALJ Friedman on December 7, 2010. At the hearing, it came out that any factually false information is assumed to be a violation since the Division does not distinguish between answers given intentionally or negligently.20 The Board's Executive Administrator testified that she herself did not know what would constitute a minor traffic violation.21 The ALJ found Question 2 "inherently vague because reasonable people could disagree as to which traffic related offenses were reportable and which were not.22 However, the ALJ also noted that a DWI was most certainly not a minor traffic offense and that Ms. Taylor should have answered "yes, " but that it "does not necessarily mean that she attempted to obtain certification through 'fraud, deceit or intentional misrepresentation.'"23

In a December 15, 2010, decision, the ALJ found Ms. Taylor should be certified conditioned on a $500 fine and a reprimand, on the understanding the Board would not certify her without it.24 The decision noted Ms. Taylor "ha[d] not met her burden of proof' that she did not "intentionally answer question 2 inaccurately." but also found no wrongdoing "has been proven."25 Ms. Taylor requested reconsideration.26 The State opposed reconsideration, arguing that grounds for reconsideration are limited to "typographical or other manifest error" prior to a final agency decision.27 The ALJ agreed with this argument in issuing a denial of reconsideration, stating Ms. Taylor's remedy was not reconsideration but a proposal for action submitted to the Board.28 which she subsequently filed.29

The day after the ALJ proposed decision issued, a Division investigator (a witness at the hearing and the investigator who had made the initial determination on her application) engaged in an ex parte communication with the ALJ.30 In her proposal for action, Ms. Taylor referred to this "critical and threatening email/' arguing it prejudiced her in her request for reconsideration.31 She further requested the Board reject the proposed decision for the same reasons she had requested reconsideration - simply, that there is no evidence she did anything other than mistakenly answer a vague question incorrectly.32

The Board adopted the ALJ proposed decision, 33 offering to "certify her conditioned on her agreement to pay a $500 fine within 120 days and acceptance of a public reprimand.34 Her failure to "accept certification with these conditions" would result in the initial denial remaining in effect35 Ms. Taylor was never given a consent agreement to sign and accept the stated conditions.36

Ms. Taylor filed her brief in September 2011, claiming the following:

[1] the Division investigator engaged in ex parte communication with the ALL resulting in prejudice to subsequent decisions;

[2] the Agency incorrectly applied AS 08.68.334(1), using improper presumptions in interpreting the statute and failing to follow binding case law in applying the statute;

[3] the Agency's application of AS 08.68.334 is void as constitutionally vague;

[4] the Agency incorrectly applied the evidentiary standard in her hearing; and,

[5] the Agency violated her constitutional right to due process and substantive due process.37

The Board filed its brief October 13, 2011, stipulating that the reply brief would be due November 2. on which date the reply brief was filed. Oral arguments were requested and Judge Torrisi noted in a December 22 order that any arguments should be scheduled before another judge upon his retirement. Arguments were initially scheduled for May 30, 2012, and then rescheduled upon Ms. Taylor's request. Oral arguments were held on June 22, 2012.

Standard of Review

In an administrative appeal, the Court exercises its independent judgment on the evidence to find whether there was a prejudicial abuse of discretion.38 "Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.39

Where agency expertise is implicated, the Court applies a "substantial evidence'' test.40 For...

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