News Stream

Without hearing, board must give written reason for sanction decision

A state appellate court in Kentucky upheld a decision by the state board for engineering and land surveying not to hold further hearings on the degree of sanction to be imposed on a licensee after the case was remanded to the board by the Kentucky Supreme Court.

(Kentucky State Board of Licensure for Professional Engineers and Land Surveyors v. Curd)

However, the court held in its March 31 ruling that the board was nevertheless at fault for failing to provide a written rationale for the sanction it chose. The court remanded the case to the board for a third time to supply the missing rationale.

The board prosecuted licensee Joseph Curd, Jr., for giving misleading testimony while engaged as an expert witness during a trial. Following a hearing, the board suspended his license for six months.

On remand, the board, believing that the Supreme Court’s remand did not require it to hold any further hearings in the case, denied Curd’s request to that effect. Then it re-issued the six-month suspension of Curd’s license, making no specific findings as to why it settled on that penalty.

Curd appealed and met with some success at a state circuit court, which found the statutes underpinning the board’s discipline decision to be unconstitutionally vague in his case, and held that the board should not engage in the policing of expert testimony except in extraordinary circumstances.

Both the board and Curd appealed aspects of that decision and eventually the case reached the Kentucky Supreme Court, which agreed that one challenged regulation was unconstitutionally vague and faulted the board for not adequately explaining how it settled on a sanction for Curd. The court remanded the case to the board to reconsider Curd’s discipline.

Curd appealed again, and again a circuit court held in his favor, ruling that the board was required to hold another hearing on remand for the consideration of the sanctions. The board appealed that decision, and the case went back to the Court of Appeals of Kentucky, which issued a decision on March 31.

The Court of Appeals agreed with the board on the issue of a hearing. Procedural due process, wrote Judge Janet Stumbo, simply requires that an affected party be given the opportunity to be heard at a meaningful time and in a meaningful manner and, because Curd had already been afforded a hearing during the initial disciplinary process, he had already been afforded that level of process.

Further, the state Supreme Court had only remanded the case for reconsideration of the sanction, and had said nothing about requiring a new hearing.

However, the failure of the board to provide a written rationale for its decision to issue Curd a six-month suspension caused the court to ultimately reverse the decision and remand the case back to the board for a third time.

“The Supreme Court remanded the case to the Board in part because ‘it did not provide insight into how the sanction was apportioned among the various violations found,'” the judge added.

“We believe the Court was requiring the Board, on remand, to make findings detailing the appropriateness of whatever penalty was decided upon. The Board did not do so; therefore, on remand, it must remedy this deficiency.”