Rondberg v. Arizona Bd. of Chiropractic Examiners

• Decision Date: 24 January 1995
• Docket Number: CA-CV,No. 2,2
• Parties: Terry RONDBERG, D.C., Plaintiff/Appellee, v. The ARIZONA BOARD OF CHIROPRACTIC EXAMINERS, a State licensing agency, State of Arizona, Defendant/Appellant. 94-0297.
• Court: Arizona Court of Appeals

Page 711

897 P.2d 711

182 Ariz. 409

Terry RONDBERG, D.C., Plaintiff/Appellee, v. The ARIZONA BOARD OF CHIROPRACTIC EXAMINERS, a State licensing agency, State of Arizona, Defendant/Appellant.

No. 2 CA-CV 94-0297.

Court of Appeals of Arizona Division 2, Department B.

Jan. 24, 1995.

Redesignated as Opinion

March 3, 1995.

Review Denied June 29, 1995.

[182 Ariz. 410] Wilenchik & Bartness, P.C. by Dennis I. Wilenchik and George H. Foster, Jr., Phoenix, for plaintiff/appellee.

Grant Woods, Atty. Gen. by Eric A. Bryant and Deborah R. Scott, Phoenix, for defendant/appellant.

OPINION

ESPINOSA, Presiding Judge.

The Arizona Board of Chiropractic Examiners (the Board) appeals from an order enjoining the Board from pursuing certain administrative actions against appellee Terry Rondberg. The Board contends that it was not bound by an agreement between Rondberg and the Maricopa County Attorney's Office (MCAO) prohibiting the state from bringing "further civil penalties or proceedings" against Rondberg arising from his involvement in illegal campaign contributions. The Board further argues that although Rondberg paid a civil penalty pursuant to the agreement, an administrative hearing would not violate prohibitions against double jeopardy. Because we find both contentions to be correct, we vacate the trial court's order granting the injunction.

In 1990, Rondberg authorized a lobbyist for a professional association he had co-founded to make contributions in both his and his wife's names to certain legislators' campaigns. The lobbyist was a "target" in the AzScam investigation and subsequently pled guilty to a knowing violation of campaign contribution limits. A.R.S. § 16-905. After coming under investigation himself, Rondberg entered into an agreement in October 1991 with the MCAO in which he agreed to pay a civil penalty for "unknowing violation of campaign contribution limits," pursuant to former A.R.S. § 16-905(J), ¹ and to fully cooperate with the MCAO in its investigation. The MCAO agreed that if Rondberg fully complied with the agreement, "no criminal charges or further civil penalties or proceedings shall be brought by the State of Arizona against Terry Rondberg concerning the illegal campaign contributions." In May 1993, the Board notified Rondberg of its intention to hold a hearing to determine whether his involvement in the campaign financing matter constituted unprofessional conduct and whether his license should be revoked, or he be placed on probation, censured, or fined.

Rondberg filed a complaint against the Board, seeking injunctive and declaratory relief on grounds that the Board, in bringing the administrative action against him, breached the agreement with the MCAO and subjected him to double jeopardy. The trial court permanently enjoined the Board from conducting any proceedings against Rondberg on matters involving the campaign contributions, finding that the agreement bound "the State of Arizona and any division thereof" from all further proceedings, that the MCAO had the authority to bind the state and that any further proceedings would place Rondberg in double jeopardy.

The Agreement

On appeal, the Board first argues that under the Chiropractic Practice Act, A.R.S. §§ 32-901 to 32-930 (the Act), it has exclusive jurisdiction to determine the propriety of Rondberg's conduct as a professional licensee and that the MCAO did not have authority to bind the Board. The Board contends that while the MCAO could pursue and resolve criminal and civil penalties pursuant to former § 16-905(J), it could not pursue any violations of the Act, nor could it prevent the Board from performing its statutory duty to regulate chiropractors. We agree.

In adopting the Act, the legislature sought to "protect the public health and safety by continuing [the Board] to help assure the competency of chiropractic practitioners." Laws 1992, Ch. 21, § 3. Clearly, it was within the Board's jurisdiction to determine if Rondberg's conduct was unprofessional or tended to discredit the profession, A.R.S. § 32-924(A)(5), and the MCAO could not usurp that function. See Loughran v. Superior Court, 145 Ariz. 56, 699 P.2d 1287 (1985) (in plea bargain, MCAO could not bargain away license revocation without permission of Department of Transportation); State v. Rogel, 116 Ariz. 114, 568 P.2d 421 (1977) (prosecution's agreement not to recommend sentence not binding on investigating officer who was not a party to the agreement). Furthermore, neither A.R.S. § 11-532, which enumerates the powers of the county attorney when acting on behalf of the state, nor the enforcement provisions of § 16-905 grants the county attorney the power to make agreements binding state administrative agencies. See State v. Thurston, 781 P.2d 1296 (Utah App.1989) (plea agreement reached by prosecutor not binding on other state agencies).

The trial court, in granting the injunction, reasoned that because the county attorney had concurrent criminal and civil jurisdiction over the offense under former § 16-905(J), its "plea agreement" with Rondberg binds the State of Arizona in all criminal and civil proceedings. The court stated that if the agreement had referred only to criminal proceedings, the Board "could go forward with a remedial disposition of a civil matter." The court read the agreement too broadly. While it clearly prohibits any further proceedings pursuant to § 16-905, its language does not encompass administrative proceedings by a professional licensing board. In context, we must interpret the term "the State" to mean the prosecutorial branch of the state. Rogel; see also State v. McFord, 115 Ariz. 246, 564 P.2d 935 (App.1977) (reference to "State of Arizona" in plea agreement must be read to...