In re Application of Benton
| Decision Date | 05 January 2005 |
| Docket Number | No. 23232.,23232. |
| Citation | 691 N.W.2d 598 |
| Court | South Dakota Supreme Court |
| Parties | In the Matter of the Application of Katheryn BENTON. |
Mark W. Haigh and Mitchell Peterson of Davenport, Evans, Hurwitz & Smith, L.L.P. Sioux Falls, South Dakota, Attorneys for appellant Benton.
Neil Fulton of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for appellee South Dakota Board of Medical and Osteopathic Examiners.
[¶ 1.] Katheryn Benton appeals the South Dakota Board of Medical and Osteopathic Examiner's denial of her application for a paramedic license. We affirm, but remand for further proceedings to consider new evidence disclosed at oral argument.
[¶ 2.] Katheryn Benton has lived in Kimball, South Dakota since 1995. She is committed to serving her community through a variety of community projects and service organizations. She is employed as an emergency medical technician (EMT).
[¶ 3.] Benton's employment involves a 140 mile drive to Rosebud, South Dakota, where she works in that community's emergency medical assistance service. Benton received her EMT basic license in 1998 and her EMT intermediate license in 2000. In 2003, she became interested in obtaining a paramedic license, which required more training. Benton applied for a paramedic license and the paramedic "student status" necessary for paramedic training.1 Her initial application was denied because she had a number of felony convictions.
[¶ 4.] Benton requested a hearing before the Board. Following an administrative hearing, the Board denied her application concluding that "Benton's felony convictions constitute unprofessional or dishonorable conduct and lack of good moral character and constitute a basis to deny her application for ... licensure as an emergency medical technician — paramedic."
[¶ 5.] Benton's felony convictions occurred in Oklahoma in 1994, where she lived before coming to South Dakota. The convictions arose after Benton's friend, Loretta Grandstaff, told Benton that Grandstaff needed money for rent, groceries, and other items. Grandstaff told Benton that Grandstaff's bank would not make her pay for checks that were stolen and used by someone else. Benton ultimately forged several checks with Grandstaff's name. Benton also obtained a false driver's license for Grandstaff. Grandstaff used the forged checks to purchase goods, some of which were given to Benton. Benton also received partial repayment of a loan she had previously made to Grandstaff.
[¶ 6.] Benton later contacted an attorney, turned herself in, and pleaded guilty to the felony charges. The felonies included one count of false application for a driver's license, two counts of obtaining property under false pretenses, and four counts of second degree forgery.2 She received a sentence that included ten years probation, 100 hours of community service, and a restitution obligation of $3600. Benton was placed on unsupervised probation in 1999.3
[¶ 7.] Benton appealed the Board's decision to circuit court. The circuit court affirmed the Board's decision. Benton now appeals to this Court questioning whether the Board was clearly erroneous in adopting certain findings of fact and whether it abused its discretion in denying her application.
[¶ 8.] The standard of review for administrative appeals is governed by SDCL 1-26-36. Streeter v. Canton School Dist., 2004 SD 30, ¶ 14, 677 N.W.2d 221, 224.
SDCL 1-26-36 ... requires us to give great weight to the findings and inferences made [by] the [agency] on factual questions. We examine agency findings in the same manner as a circuit court to decide if they were clearly erroneous in light of all of the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully reviewable.
Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228). A decision of an agency may also be reversed or modified if the decision was an "abuse of discretion or clearly unwarranted exercise of discretion." City of Frederick v. Schlosser, 2003 SD 145, ¶ 7, 673 N.W.2d 283, 285; SDCL 1-26-36(6).
[¶ 9.] Benton initially argues that the Board "beefed up" its findings of fact and conclusions of law "after legitimate concerns were raised by Benton" through her objections and her proposed findings of fact and conclusions of law. Benton specifically argues that we should infer that the Board's decision was not based upon its findings of Benton's lack of candor before the tribunal and her lack of moral character because those findings were not included in the Board's original proposals. The Board included those findings in its final decision after receiving Benton's submissions that pointed out those omissions. Thus, the record reflects that the Board apparently considered Benton's submissions and ultimately modified its final findings of fact and conclusions of law to rectify the omissions noted by Benton.
[¶ 10.] SDCL 1-26-25,4 the relevant provision of the Administrative Procedures Act, requires that an agency decision shall include findings of fact and conclusions of law. Additionally, if in accordance with agency rules a party submits proposed findings of fact, the final decision must include a ruling on the issues raised by the opposing party's submissions. In the present case, the Board apparently elected to follow this procedure because it first issued a proposed decision in the form of proposed findings of fact and conclusions of law.5 The Board then modified those proposed findings and conclusions after considering Benton's objections and proposals.
[¶ 11.] We note that this procedure reflects compliance with SDCL 1-26-25, rather than any improper bolstering of the Board's ultimate decision. Although this procedure allowed the Board to correct the omission in its proposed decision, the procedure is specifically contemplated by SDCL 1-26-25 (). Moreover, the procedure is specifically intended to enable an agency to take a second look at the facts and law of a case to correct errors or omissions raised by an objecting party.
[¶ 12.] Therefore, we do not believe that any improper inference should be permitted to be drawn from this accepted procedure. There are many reasons why an agency may add or delete language from its proposed decision. In any given case, it is just as likely that omitted language reflects an oversight as a failure to understand and apply the appropriate law. We decline to adopt any adverse inference because an agency complied with this procedure. Rather, we believe that our review should be confined to the agency's final findings of fact and conclusions of law because they reflect an agency's final decision after a reconsideration of the competing views. A different rule would also require us to speculate as to the reason for the agency's first proposal.
[¶ 13.] Benton next contends that two of the Board's final findings of fact are clearly erroneous. Benton first argues that finding number five — that other person's applications were also denied because of felony convictions6 — is clearly erroneous. However, the following testimony between counsel for the investigating committee and an employee of the Board supports that finding.
Therefore, finding of fact number five was not clearly erroneous.
[¶ 14.] Benton next attacks finding of fact number seven,7 which states that Benton did not disclose all of her felony convictions at the Board hearing. The record reflects that on her application, Benton only indicated that she had a felony conviction for forgery and that the "National Registry has info." Furthermore, during the hearing, Benton essentially indicated that her only felony conviction was for forgery. Benton, however, contends that she "fully disclosed every fact relating to her wrongdoing," and simply because "she d[id] not understand that her plea agreement was for particular offenses or charges does not mean that she was not forthcoming." (Emphasis added.) Benton finally contends that because her post-hearing affidavits indicated that she obtained a driver's license in someone else's name and that she had signed checks for her friend, she "fully disclosed the conduct that led to her convictions." (Emphasis added.)
[¶ 15.] We are not persuaded by such parsing of words. The record reflects that neither Benton's hearing testimony nor her post-hearing affidavits ever disclosed that she had been convicted of one count of felony false application for a driver's license and two counts of felony obtaining property under false pretenses. Furthermore, Benton called a number of character witnesses at the hearing who were unaware of the driver's license and obtaining property under false pretenses felonies. We finally note that, when asked during the hearing if she had received a benefit from the forgeries, Benton only responded that she "did not get back the funds" that she was owed. However, after the hearing, Benton disclosed that she had received $300 and five bags of groceries from the check-writing scheme. Given the partial disclosures and the fact that some of the "conduct" details were only disclosed after the hearing, this finding concerning Benton's testimony during the hearing was not clearly...
To continue reading
Request your trial
-
Christenson v. Crowned Ridge Wind, LLC
...choices, a decision, which, [on full consideration,] is arbitrary or unreasonable[.]" In re Application of Benton , 2005 S.D. 2, ¶ 22, 691 N.W.2d 598, 605 (citation omitted); see also SDCL 1-26-36(6) (stating that an agency decision may be reversed or modified if the decision is "[a]rbitrar......