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.

 

As recently reported by the Burlington Free Press, one of the Burlington High School guidance counselors was charged with six counts of unprofessional conduct.  The initial charges ranged from what I would characterize as employment or personnel issues that on their face do not appear to rise to the level of unprofessional conduct, to the very serious allegation of falsifying a student’s record.  The Vermont Agency of Education initially sought a 364 day suspension of the counselor’s educator’s license.  The original charges were amended to include an additional charge that the Counselor “inappropriately engaged a student witness” and the sanction being sought was increased to a revocation of the Counselor’s license.  It is unknown exactly what encompassed the alleged “inappropriate engagement.”

I am not going to spend time trying to dissect these specific allegations, because I certainly do not know what happened and in addition to the Free Press, Seven Days and Vermont Digger have also spent considerable time covering the story.  Rather, I would like to examine the professional licensing disciplinary procedure that the Vermont Agency of Education utilizes for licensed educators, as contrasted with the disciplinary procedures utilized for nearly every other type of licensed professional.

In addition to the Agency of Education, there are three other paradigms for professional licensing discipline in Vermont (I am not including the licensed trades such as plumbers and electricians in this analysis).  Those licensing agencies include: the Board of Medical Practice (appointed by the governor) that regulates medical doctors and a few other related professions and falls under the aegis of the Vermont Department of Health. The Professional Responsibility Board (appointed by the Vermont Supreme Court) that regulates attorneys and ultimately reports to the Vermont Judiciary, headed up by the Vermont Supreme Court.  And the Vermont Office of Professional Regulation (OPR) an interesting little state agency tucked away in the Vermont Secretary of State’s Office.  OPR acts as an umbrella for approximately 50 different professions, large and small.  In some instances OPR provides services to a gubernatorially appointed licensing board such as the Board of Psychological Examiners and in other instances OPR is the actual licensing entity, working in conjunction with a group of advisors appointed by the Secretary of State such as the licensed midwives.

Full disclosure, I was formerly a prosecuting attorney at OPR, having spent over 10 years there, the last 5 as the Chief Prosecuting Attorney.  I have also assisted clients in matters before the Board of Medical Practice and have been appointed to serve as Special Disciplinary Counsel before a panel of the Professional Responsibility Board.  My purpose in writing this series is to start a dialogue about professional licensing in Vermont.

The first question a reader may have is – – why are there four separate licensing entities?  That’s a great question and likely has to do with an amalgamation of history, separation of powers and context. Harder to establish, but entirely plausible, are the varying amounts of power each of these professions wield regarding the legislative and judicial process. The three “carve-out” professions (lawyers, doctors and teachers) all have dedicated lobbyists tied to their respective professional organizations – – The Vermont Bar Association – – The Vermont Medical Society – – and The Vermont National Education Association.

As we will see in this series, the process of professional licensing and discipline has been shaped and carved differently for each of the four professional licensing models, based on both legal and political influences, as well as public opinion.  In part two, we will be discussing how disciplinary charges arise in each one of the professional licensing forums.

If you have any burning questions regarding the various professional licensing disciplinary processes, please feel free to get in touch with me and I will attempt to integrate an answer into this series.