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Vermont court: Central agency can appeal board decision not to discipline

The Office of Professional Regulation (OPR) within the office of the Vermont Secretary of State has the power to appeal a Board of Nursing decision, the Supreme Court of Vermont held October 14. The court reinstated the decision of an appellate officer to vacate the board’s consent order suspending the practice of the appellee (Shaddy v. State of Vermont Office of Professional Regulation).

David Shaddy was a nurse who was accused of diverting narcotics and entered into a consent order suspending him from practice. Shaddy’s former employer, Brattleboro Retreat, reported suspicions that Shaddy was diverting narcotics to the nursing board. The board then referred the matter to an Office of Professional Regulation (OPR) attorney to arrange a summary suspension proceeding.

In the consent order, Shaddy conceded that there existed enough evidence for the state to prove its case. Shaddy did not, however, admit liability.

One year after signing the consent order, Shaddy filed to amend the judgment, contending that he did not do what the board said he did and that his attorney compelled him to enter into the consent order, even though he didn’t want to.

After a hearing, the board decided to grant Shaddy most of the relief he sought, finding that he was well organized and credible, that he showed a good reason for his request, that he sought relief within a reasonable time, and that his claims were supported by the documentation he provided at the hearing.

Alleging a “miscarriage of justice,” the board also found that the evidence against Shaddy is insufficient, and that the facts demonstrated an extraordinary situation warranting reopening of final judgment. Based on these findings, the board threw out the consent order, dismissing the charges against Shaddy without prejudice.

The OPR attorney appealed, and an appellate officer conducted an “on-the-record review without taking new evidence.” Notably, an appellate officer is only supposed to reverse a board decision “if substantial rights of the appellant have been prejudiced.”

The appellate officer found several criteria for reversal: first, the board should not have considered evidence in relation to merit; second, the board did find a proper basis to vacate the earlier judgment; and third, the board made no findings of fact and failed to allow the state to evidence.

Shaddy appealed the officer’s decision to the superior court, contending that the OPR attorney had no power to appeal the nursing board’s decision. The court concurred, noting that prosecution power rests with the board, not the OPR, and the case was sent back to the nursing board.

The OPR attorney requested an interlocutory appeal, which was granted by the Vermont Supreme Court.

The Vermont Supreme Court highlights two issues: whether the state is able to appeal a Board of Nursing decision, and whether the OPR attorney is a representative for the state in the appeals process.

Shaddy contended that the board’s decision should be final and not subject to challenge. The court disagreed, finding that Shaddy’s argument was unpersuasive and that a “party aggrieved,” such as the state in this case, may appeal a decision by the board.

The court also decided that the OPR attorney is an actor of the state, similar to the Attorney General’s office. The legislature retracted the obligation that once existed for the Attorney General’s office to be the sole prosecutor for complaints.

The Court saw no reason to disassociate the OPR attorneys from the state, writing, “We are satisfied, however, that the Legislature intended in its 2003 enactments that OPR attorneys assume the role formerly played by the Attorney General and represent the State of Vermont in such proceedings.”