Devers-Scott v. Office of Professional Regulation

Citation2007 VT 4,918 A.2d 230
Decision Date12 January 2007
Docket NumberNo. 05-481.,05-481.
CourtVermont Supreme Court

Lisa Chalidze of Lisa Chalidze, P.C., Benson, and Michael H. Sussman, Goshen, NY, for Plaintiff-Appellant.

Edward G. Adrian, State Prosecuting Attorney, Montpelier, for Defendant-Appellee.


¶ 1. REIBER, C.J.

Plaintiff Roberta Devers-Scott appeals a Washington Superior Court decision affirming a ruling by an administrative law officer (ALO) revoking Devers-Scott's license to practice midwifery. She contends that: (1) the record does not support the ALO's findings; (2) the ALO erred in concluding that she violated certain unprofessional conduct statutes and midwifery rules; (3) she was stripped of her license based on her attitude and was thereby denied due process of law; and (4) the sanction imposed was too severe. We affirm.

¶ 2. The State filed a complaint with the Office of Professional Regulation (OPR) seeking immediate summary suspension of Devers-Scott's license to practice midwifery. The OPR conducted a summary suspension hearing, pursuant to 3 V.S.A. § 814(c). The results of that hearing were not reviewed by the superior court or by the ALO, and so are not considered herein. The issues raised on this appeal arise out of proceedings commenced when the State subsequently filed a specification of charges against Devers-Scott for alleged unprofessional conduct in connection with her care for three clients: A.B., L.S., and K.B. The specification of charges sought the permanent revocation of Devers-Scott's license to practice midwifery in Vermont, as contemplated by 26 V.S.A. § 4188(c).

¶ 3. The OPR appointed an ALO to conduct a full hearing on the merits of the charges, pursuant to 3 V.S.A. § 129(j) and 26 V.S.A. § 4186(c). At that hearing, the burden of proof was on the State to show by a preponderance of the evidence that Devers-Scott had committed unprofessional conduct. 3 V.S.A. § 129a(c). The ALO conducted a seven-day hearing in late September 2004 and issued a ruling in December of that year. In that ruling, the ALO found that Devers-Scott had "committed multiple acts constituting unprofessional conduct," and that "[a] substantial number of those acts had implications for the care and safety of clients and their to-be-born children." The ALO further found that Devers-Scott had been reprimanded for unprofessional conduct in Vermont in 2001 because of a 1996 indictment for practicing midwifery without a license in New York. Based on those findings, the ALO permanently revoked Devers-Scott's license to practice midwifery in Vermont. Devers-Scott appealed to the superior court, pursuant to 3 V.S.A. § 129(j). The superior court affirmed the ALO's decision on October 12, 2005. This appeal followed.

I. Standard of Review

¶ 4. "Where there is an intermediate level of appeal from an administrative body, we review the case under the same standard as applied in the intermediate appeal." Tarrant v. Dep't of Taxes, 169 Vt. 189, 195, 733 A.2d 733, 738 (1999). We therefore review the ALO's decision independent of the superior court's findings and conclusions. "The statute simply gives parties two appeals. . . ." In re Town of Sherburne, 154 Vt. 596, 604, 581 A.2d 274, 278 (1990).

¶ 5. The scope and character of our review of ALO and board decisions varies depending on the character of the proceedings below and the particular expertise of the fact-finder. See id. at 603-04, 581 A.2d at 278 (citing Sierra Club v. Marsh, 769 F.2d 868, 871-72 (1st Cir.1985)) ("We should be more willing, or be less willing, to differ with a [trial] court about the `reasonableness' or `arbitrariness' of an agency decision, depending upon the particular features of the particular case that seem to make a more independent, or a less independent, appellate court scrutiny . . . appropriate."). Here, a nonexpert ALO issued findings of fact and conclusions of law after a seven-day hearing.

¶ 6. We affirm the factual findings of administrative tribunals when they are "supported by substantial evidence." Braun v. Bd. of Dental Exam'rs, 167 Vt. 110, 114, 702 A.2d 124, 126 (1997). "Evidence is substantial if, in looking at the whole record, it is relevant and a reasonable person could accept it as adequate. . . ." Id. (citation omitted). This Court will not, upon its review of the evidence, reweigh conflicting evidence. Rather, we defer to the finder of fact when there is conflicting evidence in the record. In re Southview Assocs., 153 Vt. 171, 177-78, 569 A.2d 501, 504 (1989).

¶ 7. The State argues that we should afford the ALO's interpretation of the midwifery statutes and rules the same "ordinary deference" we gave to the Real Estate Commission in Office of Professional Regulation v. McElroy, 2003 VT 31, ¶ 7, 175 Vt. 507, 824 A.2d 567 (mem.). In McElroy we held that the Real Estate Commission's conclusion that McElroy had engaged in a "continuing course of conduct" under a statute governing real estate brokers was "entitled to ordinary deference . . . meaning that we will accord deference to the R.E.C.'s interpretation of the real estate statutes where it represents a permissible construction of the statutes." Id. We also noted in McElroy that "reviewing courts defer to an administrative agency's conclusions of law when these conclusions are `rationally derived from the findings and based on a correct interpretation of the law.'" Id. (quoting Braun, 167 Vt. at 114, 702 A.2d at 126).

¶ 8. More recently, in State v. Brooks, we quoted the above-cited language from Braun when reviewing a decision of the Board of Land Surveyors, but noted that, because the board had "no special expertise" in resolving what was essentially a jurisdictional dispute, no "additional deference" was warranted. 2004 VT 88, ¶ 8, 177 Vt. 161, 861 A.2d 1096. In Brooks, then, we deferred only to the board's findings of fact, and reviewed de novo its legal conclusion. Id. ¶¶ 9-17. In Brooks, we characterized our deference to board interpretations in Braun as arising from the Board's special expertise in, essentially, determining whether a fellow dentist had committed gross negligence within the statutory definition. Id. ¶ 8.

¶ 9. The question of how much deference a reviewing court should give to a nonexpert ALO is one of first impression in this state. The ALO in this case was an attorney and had no special expertise in midwifery, unlike the Board of Dental Examiners in Braun (composed of dentists) and the Board of Land Surveyors in Brooks (composed of surveyors). Accordingly, the ALO's interpretations of the midwifery statutes and rules are entitled to no deference and will be reviewed de novo. See Ayala-Chavez v. INS, 945 F.2d 288, 294 (9th Cir.1991) ("[A] reviewing court should defer to an administrative agency only in those areas where that agency has particular expertise. . . . Questions of law that can be answered with traditional tools of statutory construction are within the special expertise of courts, not agencies, and are therefore answered by the court de novo.") (internal quotations omitted), superseded by statute on other grounds as recognized in Arthurs v. INS, 959 F.2d 142, 143 (9th Cir.1992).

¶ 10. As to sanctions, a board or ALO "has discretion to impose an appropriate sanction if there is a showing of unprofessional conduct." Bd. of Med. Practice v. Perry-Hooker, 139 Vt. 264, 269, 427 A.2d 1334, 1336 (1981). We have also stated that we "will not interfere with the decision of an administrative board made in the performance of a discretionary duty in the absence of a showing of abuse of discretion." Vincent v. Vermont State Ret. Bd., 148 Vt. 531, 536, 536 A.2d 925, 929 (1987). We will examine a nonexpert ALO's sanction determination more closely than we would the same determination by an expert board. Cf. McElroy, 2003 VT 31, ¶ 7, 175 Vt. 507, 824 A.2d 567 (noting that, "because the R.E.C. is composed of realtors already having a Vermont license, the members of this regulatory board would not themselves be subject to the regulation that they were implementing," and the deference given to the sanctioning determination in Braun was not justified in McElroy).

II. Discussion

¶ 11. We begin with a brief review of the regulations and statutes governing midwife licensing and discipline in Vermont. A board or ALO may revoke a professional license after a disciplinary hearing. 3 V.S.A. § 129(a)(3). The types of unprofessional conduct that warrant disciplinary action are described in 3 V.S.A. § 129a. Subsection 129a(a) is mandatory; failure "to comply with provisions of federal or state statutes or rules governing the practice of the profession" shall be found to be unprofessional conduct. Id. § 129a(a)(3). In contrast, "[f]ailure to practice competently," evidenced by the "performance of unsafe or unacceptable . . . client care" or the "failure to conform to the essential standards of acceptable and prevailing practice" may constitute unprofessional conduct. Id. § 129a(b)(1), (2).

¶ 12. Pursuant to the statutory authority created by 26 V.S.A. § 4185(b), Vermont has adopted the Administrative Rules for Licensed Midwives (MR or midwifery rules). 9 Code of Vermont Rules 04 030 360. The stated purpose of the rules is to "protect the public health, safety and welfare by setting standards, licensing applicants, and regulating licensed midwives and their practices." MR 1.1. Several of the midwifery rules are implicated in the current case. The substance of these rules is discussed below in regard to the specific violations. Under 3 V.S.A. § 129a(a), each time Devers-Scott violated a midwifery rule, she also committed unprofessional conduct.

¶ 13. Like the ALO and the superior court, we do not consider, with respect to any of the three patients, whether Devers-Scott's actions and omissions caused harm.1 Such a determination is not necessary to a...

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