Hartwig v. Board of Nursing of State of Iowa
| Decision Date | 22 November 1989 |
| Docket Number | No. 88-1512,88-1512 |
| Citation | 448 N.W.2d 321 |
| Parties | Katherine HARTWIG, Appellant, v. BOARD OF NURSING OF the STATE OF IOWA, Appellee. |
| Court | Iowa Supreme Court |
John J. Carlin of Carlin, Hellstrom & Bittner, Davenport, for appellant.
Thomas J. Miller, Atty. Gen., and Theresa O'Connell Weeg, Asst. Atty. Gen., for appellee.
Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and NEUMAN, JJ.
Katherine Hartwig, the petitioner in an action for judicial review of agency action under Iowa Code section 17A.19 (1987), appeals the district court's decision affirming the Iowa Board of Nursing's revocation of her nursing license. Upon considering the arguments of the parties, we affirm the judgment of the district court.
The board of nursing is a licensing board as defined in Iowa Code section 258A.1(1)(n) (1987). Iowa Code section 258A.4 (1987) authorizes licensing boards to establish procedures for reviewing complaints against licensees and for imposing appropriate discipline upon those persons, including suspension or revocation of their licenses.
David W. Lamb, executive director for the Iowa Board of Nursing (the board), conducted an investigation of petitioner's activities motivated by (a) a complaint from the hospital where petitioner had been employed, and (b) circumstances surrounding petitioner's probationary status under a prior order of the board involving a charge of substance abuse on her part. Following his investigation, Lamb, on August 12, 1988, filed a statement of proposed charges with the board. These charges included allegations that petitioner had (a) failed to abide the conditions of probation imposed upon her under a prior disciplinary order of the board, (b) misappropriated prescription drugs while working in a hospital, and (c) evidenced an addiction to the use of drugs.
Lamb's action was taken pursuant to 655 Iowa Administrative Code 4.2(4), which provides:
The executive director or authorized designee shall investigate complaints to determine whether a violation of applicable law or rule has occurred and whether the licensee in question committed the violation. The investigation shall result in one of the following:
a. Presentation of a statement of charges to the board and recommendation that a hearing be held because probable cause exists.
b. Presentation of the complaint to the board and recommendation for dismissal because there is insufficient evidence to substantiate the allegation.
c. Request for the board to appoint a peer review committee. 1
After reviewing Lamb's proposed charges, the board, on September 17, 1986, made a finding that, due to the seriousness of the allegations, summary suspension of petitioner's license was warranted under Iowa Code sections 17A.18(3) and 147.55(4) (1985). Petitioner was given notice of the summary suspension together with a statement that, because of the summary nature of the suspension, a prompt hearing would be accorded on the charges. October 31, 1986, was suggested as the date for that hearing. Petitioner requested a delay beyond that date, and the hearing was ultimately held on January 9, 1987. Prior to that hearing, Lamb filed an "addendum" of charges stating that, in addition to the other matters alleged, petitioner had held herself out as a practicing registered nurse during the time her license was under summary suspension.
Following the January 9, 1987, hearing, the board found that several of the alleged violations of professional responsibility had been established. Among other things, the board found that the evidence sustained a finding that petitioner had misappropriated the drug Nubaine from the hospital where she was employed, that she had failed to comply with the probationary conditions of a previous disciplinary order with respect to reporting her personal use of prescription medications to the board, that she evidenced behavior indicative of a substance abuse problem, and that she had applied for employment as a registered nurse while her license was under suspension. The board ordered the revocation of petitioner's license.
In challenging the district court's order upholding the license revocation, petitioner does not contend that the evidence was insufficient to sustain the charges. She bases her appeal on (1) an alleged failure of the board to follow its own regulations in the disciplinary process, and (2) a contention that the board could not act as a fair and impartial tribunal because it was both prosecutor and adjudicator. We will consider both of these contentions.
Petitioner asserts that at no time in the proceedings did the executive director who investigated the charges make a "recommendation that a hearing be held because probable cause exists." She urges that this failure on Lamb's part violates 655 Iowa Administrative Code 4.2(4)(a), which we have set forth earlier in this opinion. She also asserts that the board, in acting on Lamb's proposed charges, failed to "determine the existence of probable cause" prior to ordering a hearing, a failure she contends violates 655 Iowa Administrative Code 4.3(4). Finally, petitioner contends that the agency's failure to follow its own regulations in the administrative proceedings violates her right to due process of law under the federal constitution.
Petitioner suggests that any failure by an administrative agency to follow its own rules and regulations gives rise to a due process violation. We believe that this contention overstates the effect of such omissions. Neither Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), nor Sherman v. Yakahi, 549 F.2d 1287 (9th Cir.1977), cited by petitioner, stand for the proposition that all deviations by an agency from the agency's own rules give rise to a due process violation. This court has recognized that if an omitted procedural step required by a statute or regulation is not essential to accomplishing the primary purpose of an agency's mission but is designed only to assure order and promptness in the proceeding a failure to follow the prescribed procedure will not invalidate subsequent proceedings unless prejudice is shown. Sheet Metal Contractors of Iowa v. Commissioner of Ins., 427 N.W.2d 859, 865 (Iowa 1988); Taylor v. Department of Transp., 260 N.W.2d 521, 523 (Iowa 1977).
We need not determine whether a preliminary finding of probable cause prior to proceeding to hearing is a sufficiently critical part of the process to invalidate a decision rendered after a full evidentiary hearing has been had. We are satisfied in the present case that both the executive director and the board substantially complied with the requirement for a preliminary determination of probable cause, albeit without an express articulation of such finding. Included in the proposed written charges Lamb presented to the board was a recommendation that a hearing be held on the charges. The board, after reviewing Lamb's...
To continue reading
Request your trial
-
Botsko v. Davenport Civil Rights Com'n
...adjudicators. Fisher, 510 N.W.2d at 877, see also Cronin v. Town of Amesbury, 895 F.Supp. 375, 387 (D.Mass. 1995); Hartwig v. Bd. of Nursing, 448 N.W.2d 321, 323 (Iowa 1989). A more serious problem, however, is posed where the same person within an agency performs both prosecutorial and adj......
-
Clausing v. State
...role as the finder of probable cause insufficient to disqualify him from participating in forfeiture proceeding); Hartwig v. Bd. of Nursing, 448 N.W.2d 321, 324 (Iowa 1989) (holding board's summary suspension order was merely probable cause conclusion and did not constitute prejudgment; age......
-
Eaves v. Board of Medical Examiners
...decisionmaker." Wedergren v. Board of Directors, 307 N.W.2d 12, 18 (Iowa 1981). That has not occurred here. As in Hartwig v. Board of Nursing, 448 N.W.2d 321, 324 (Iowa 1989), the actual prosecution of this case was handled by the Attorney General's Office, not by the agency. The circumstan......
-
Fisher v. Iowa Bd. of Optometry Examiners, 92-1949
...prejudgement that the practice must be forbidden if the guarantee of due process is to be adequately implemented. Hartwig v. Board of Nursing, 448 N.W.2d 321, 323 (Iowa 1989) (citing Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712, 723-24 Fisher points out that the b......