We last left off after a review of the Grey Areas of Professional Licensing in Vermont and the Burden of Proof in Professional Licensing cases. In part three of this series, we will be reviewing who has the authority to “charge” unprofessional conduct. In Vermont, as previously discussed, we have four separate entities that regulate professional discipline. The Vermont Agency of Education regulates teachers.  The Vermont Board of Medical Practice (under the umbrella of the Department of Health, Agency of Human Services) regulates medical doctors and a handful of associated professions. The Vermont Professional Responsibility Board (under the umbrella of the Vermont Judiciary) regulates attorneys. And approximately 50 boards and advisors (more on this in another post) regulate the other professions (under the umbrella of the Vermont Secretary of State’s, Office of Professional Regulation “OPR”).

The Agency of Education stands apart from other regulatory agencies in a few notable aspects. First, as is evident from the structures set forth above, the other regulatory agencies are part of several layers of state bureaucratic (this is just a fact, not a criticism) umbrella organizations.  The physicians (note osteopaths are regulated by OPR) and attorneys each have a stand alone board that regulates them, but is ultimately connected to a higher entity. And the 50 or so professions regulated by OPR essentially pool their resources to pay for a regulatory infrastructure. Educators stand alone in that they are directly regulated by the Agency of Education.

Another thing that separates educators from the other professions, is that in all other instances: attorneys, physicians, and the OPR professions, the charging entity is an attorney. In other words, when the so called “charges” are filed by the “state” (i.e. the prosecuting authority), an attorney signs off on the charges.  The Assistant Attorney Generals (AAGs appointed by the Attorney General) are in charge of prosecuting physicians. Disciplinary Counsel (appointed by the Judiciary) is in charge of prosecuting attorneys. And State Prosecuting Attorneys (appointed by the Secretary of State) are in charge of prosecuting the OPR professions.

Not so with the Agency of Education. 16 V.S.A. § 1701(b) provides in part that “[i]f the Secretary determines a formal charge is warranted, the Secretary shall prepare a formal charge, file it with the hearing panel administrative officer, and cause a copy to be served upon the licensee charged together with a notice of hearing and procedural rights, as provided in this chapter.”

This configuration is somewhat unique and may have the effect of politicizing unprofessional conduct charges. It’s almost certainly the case that the Secretary of Education does not actually draft the charges, but rather an attorney drafts them and the Secretary signs them. The paradigm of the Agency Secretary signing charges is readily apparent in the present matter pending against the Burlington High School guidance counselor.

In the next installment, we will be reviewing the pre-hearing process for the various professions.