Abbott v. Kansas Board of Examiners in Optometry, 82,291.

• Decision Date: 10 March 2000
• Docket Number: No. 82,291.,82,291.
• Parties: STEPHEN W. ABBOTT, O.D., W. CHRIS ARENSBERG, O.D., JOHN W. PAGE II, O.D., DENNIS L. SMITH, O.D., and JAMES C. WILLIAMS, O.D., Appellants, v. KANSAS BOARD OF EXAMINERS IN OPTOMETRY and LARRY STOPPEL, O.D., WARREN R. THOMAS, O.D., SHARON MICHEL, O.D., and THOMAS LEMON, duly appointed members of the Kansas Board of Examiners in Optometry, Appellees.
• Court: Kansas Supreme Court

268 Kan. 739

1 P.3d 318

STEPHEN W. ABBOTT, O.D., W. CHRIS ARENSBERG, O.D., JOHN W. PAGE II, O.D., DENNIS L. SMITH, O.D., and JAMES C. WILLIAMS, O.D., Appellants, v. KANSAS BOARD OF EXAMINERS IN OPTOMETRY and LARRY STOPPEL, O.D., WARREN R. THOMAS, O.D., SHARON MICHEL, O.D., and THOMAS LEMON, duly appointed members of the Kansas Board of Examiners in Optometry, Appellees.

No. 82,291.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Reid F. Holbrook, of Holbrook, Heaven & Osborn, P.A., of Kansas City, argued the cause, and Brent G. Wright, of the same firm, was with him on the brief for appellants.

Kevin M. Fowler, of Frieden, Haynes & Forbes, of Topeka, argued the cause, and Randall J. Forbes, and Clinton E. Patty, of the same firm, were on the brief for appellees.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Appellants are five doctors of optometry (optometrists). The Kansas Board of Examiners in Optometry (Board) publicly censured the optometrists for failing to furnish legally requested information to the Board's investigator and representative. Appellants petitioned the district court for review of the agency action. The district court denied the petition. The optometrists appealed. The case was transferred by this court from the Court of Appeals, pursuant to K.S.A. 20-3018(c). Each of the optometrists leased space for his professional office from a retail optical dispenser. The Board advised the optometrists that an investigation was being conducted to determine whether customers were being given the impression that the optometrists' practices were part of the unlicensed retail businesses. The optometrists refused to cooperate in the investigation unless a court reporter of their hiring made a record of the investigation interviews. The Board refused to permit the court reporter to attend the investigation sessions. Then the Board's focus shifted to the optometrists' refusal to furnish information for the investigation, and each of them was publicly censured by the Board for that conduct. At issue in this appeal is the disciplinary action for failure to cooperate in the investigation. The original object of investigation, the optometrists' association with nonlicensed retail entities, is not involved in this appeal.

The optometrists do not expressly challenge the factual findings stated in the Board's final orders. The following findings, which are identical for all appellants, are taken from the final orders:

"1. At all times relevant hereto, the Licensee held a license, issued by the Board, to practice optometry in the State of Kansas.

"2. By letter dated November 10, 1993, the Board, through its attorney, advised the Licensee it was investigating possible violations of the Optometry Law. By the same letter, the Board requested the Licensee produce certain documents and appear at its January 21, 1994 meeting to answer questions in furtherance of the investigation.

"3. By letter dated July 11, 1994, the Board, through its attorney, again contacted the Licensee concerning the investigation and again requested the production of documents and the Licensee's presence at the Board's August 19, 1994 meeting to answer questions in furtherance of the investigation. That letter also specifically advised the Licensee that K.S.A. 65-1517(p) made failure to furnish the Board, its investigators or representatives any information legally requested by the Board an independent basis for disciplinary action against an offending Licensee.

"4. By letter dated July 28, 1994, the Licensee's attorney contacted the Board's attorney requesting that the Board members recuse themselves from the investigation because of bias or, alternatively, that the Board not be shown the requested documents because of the confidential nature of those documents.

"5. By letter dated August 5, 1994, the Licensee was notified, through his attorney, that the investigative questioning to be done on August 19, 1994 would not be done at an open public meeting of the Board, but would be conducted in private by only the Board President and the Board's attorney.

"6. By letter dated August 16, 1994, the Respondent was advised, through his attorney, that the Board's representatives who would be conducting the investigative questioning, did not believe the presence of a court reporter would be appropriate at the August 19, 1994 investigative meeting with the Board's president and attorney and that they would prefer to not have a court reporter present.

"7. On August 19, 1994 the Respondent appeared with his attorneys, but the Licensee refused to answer questions to be posed as part of the Board's investigation without the court reporter present."

The Board concluded that the optometrists were not entitled to have a court reporter present for the investigative session, as a matter of law and a matter of policy. Thus, according to the Board, its request for information had been legal. By refusing to cooperate at the investigative sessions, the optometrists failed to furnish legally requested information. The record on appeal includes a transcript of the confrontation which occurred at the August 19, 1994, meeting. The court reporter hired by the optometrists was present and prepared the transcript. The animosity between counsel for the Board and counsel for the optometrists is clearly reflected in the transcript. Although the optometrists stated they would answer any and all of the Board's questions, they would do so only in the presence of their court reporter. The attorney for the Board refused to proceed with the questions as long as the court reporter was present; thus, there was no questioning of the optometrists.

K.S.A. 65-1517(p) provides that a licensed optometrist is subject to discipline, including public censure, upon a finding that he or she failed to furnish information legally requested by the Board. The Board's decision was that each of the optometrists should be publicly censured for failing to furnish the Board's investigator and representative information legally requested by the Board.

The optometrists first argue that the Board's refusal to conduct a hearing before imposing discipline deprived them of due process under the federal and state Constitutions. In its orders, the Board stated that its action had been taken on a motion for summary judgment "submitted by the Board's representative." The Board noted that K.S.A. 77-519 of the Kansas Administrative Procedures Act sanctions the use of summary judgment in administrative proceedings. K.S.A. 77-519(a) provides: "The presiding officer... shall give all parties full opportunity to file ... motions, including, but not limited to, motions to dismiss and motions for summary judgment."

The optometrists rely on Bracegirdle v. Board of Nursing, 159 Wis.2d 402, 464 N.W.2d 111 (Wis. App. 1990). Bracegirdle was charged by the Nursing Board with using excessive physical force in the removal of a nursing home resident's dentures. The examiner concluded that she had not used excessive force in attempting to remove the dentures. The board adopted some of the examiner's findings but varied from the examiner's decision by adding that Bracegirdle's verbal and physical encouragement to persuade the patient to do what he declined to do constituted an improper act of force or mental pressure. On this basis, the board concluded that Bracegirdle violated the administrative code, and costs were assessed against her. The Wisconsin Court of Appeals reversed the board's decision. It concluded that she had not violated the administrative code. In addition, it concluded that the board violated Bracegirdle's right to notice and an opportunity to be heard when it found that she had violated the code by conduct not charged. 159 Wis.2d at 411-12.

The optometrists' reliance on Bracegirdle is misplaced. Bracegirdle did not refuse to cooperate in an investigation. Her only conduct in question was the incident in which she attempted to remove a patient's dentures. She was charged with using excessive force. At the first and second levels of adjudication, she was exonerated of the charged conduct. At the second level, however, with no notice to the accused, the board found that she was in violation of the code for previously uncharged conduct arising out of the same dentures incident. The offense Bracegirdle was found guilty of was announced for the first time in the Nursing Board's decision; thus, she had no notice that uncharged conduct was being considered and no opportunity to defend herself with regard to it.

The facts of the present case distinguish it from Bracegirdle. The present case arose from an investigation rather than from an adjudication. The Board asked the optometrists to furnish information for the investigation of possible violations of the prohibition on association or perceived association with unlicensed retail optical dispensers. The letters requesting the optometrists to appear for investigative sessions advised them that refusing to cooperate was an independent ground for disciplinary action. With knowledge of the statutory requirement of cooperation and the statutory sanction for refusing to cooperate, the optometrists refused to participate in the investigative sessions. In doing so, they knowingly engaged in prohibited conduct separate and independent from the conduct under investigation.

The Board calls to the court's attention the case of Anderson v. Board of Medical Examiners, 95 Or. App. 676, 770 P.2d 947 (1989). Anderson was under investigation by the Board of Medical Examiners respecting her treatment of four patients. She failed to comply with a subpoena duces tecum issued by the board for an informal investigatory interview. As a result, her license to practice medicine was revoked by the board on the ground that she willfully refused to appear for an informal interview with the board in violation of a state statute. In affirming the revocation, the ...