Professional Regulation

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.


Yesterday I received a notice from the Vermont Secretary of State’s Office, Office of Professional Regulation (OPR), informing me (and presumably every other person who is registered as a public notary in Vermont) that there is a new sheriff in town involved in the oversight and regulation of notaries public. Here’s a copy of the notice. All notary registrations are now going to go through OPR and treated just like all the other professions regulated by OPR. That includes registering though the OPR online portal (that will not be live until mid-December).  According to the OPR website, the notary registration process is going to be far, far more complex then what it used to be. The entire notary registration process used to consist of a single page form, submitted to the local county clerk, found at the county courthouse.

This new process comes as the result of a massive legislative change, presumably to provide greater oversight to how notaries are “licensed” and monitored. On its face, modernizing the notary process is a good thing. Attorneys have been hearing reports for years about the impact of poor notary practices on their clients. What is less clear is whether notaries need to be monitored as closely and as aggressively as what we think of as traditional professions, such as dentists, psychologists and nurses.  This is the guidance from the OPR Website:

That’s far, far more information what was previously requested as part of the single page form referenced above.  Even more perplexing, is that notaries will now be subject  to disciplinary action, based on both the unique facets of notary practice, as well as, general disciplinary proceedings that apply to all professions.  For example, notaries are now required to obtain and utilize a physical stamping device (whereas previously a signature was adequate). 26 V.S.A. § 5370(b) provides that “[i]f a notary public’s stamping device is lost or stolen, the notary public or the notary public’s personal representative or guardian shall notify promptly the Office [OPR] on discovering the device is lost or stolen.”  Failure to promptly report constitutes “unprofessional conduct” and may subject the notary to prosecution pursuant to 26 V.S.A. § 5342(a)(5).

However, that’s not the only thing considered “unprofessional conduct.” The new law at 26 V.S.A. § 5342(a)(9) also incorporates 3 V.S.A. § 129a(a) that lists unprofessional conduct applicable to all professions.  This means that notaries who do not inform OPR of a new address in 30 days (3 V.S.A. § 129a(a)(14)) have committed unprofessional conduct and are subject to prosecution. It also means that if a notary is convicted of any criminal offense (this includes things such as DUIs and certain Fish and Game violations), they must report this conviction to OPR within 30 days (3 V.S.A. § 129a(a)(11)) or they have engaged in unprofessional conduct.  Note that this reporting requirement is different from actually being convicted of a crime related to being a notary (such as a fraud) or being convicted of a felony, both of which constitute a separate prosecutable offense (3 V.S.A. § 129a(a)(10)).

The new licensure for notaries will also include exam and continuing education requirements for most notaries, with some exceptions (notably attorneys).  The list of exemptions and exceptions for exams, continuing education and fees can be found at the OPR website here.

Needless to say, I am not sure that the legislature fully contemplated the impact of this legislation given the current state of affairs.  There will also be a set of rules promulgated by OPR, but those are not available as of yet.  And there will be “advisors” appointed by the Secretary of State to oversee and advise OPR on the notary regulatory process, but those advisors have apparently not been appointed yet.

All of this is by way of saying that there are a tremendous amount of changes coming for notaries, who have likely been practicing the same way for decades, if not centuries. The best offense, is a strong defense. When signing up to be a notary, it is important to know what you are getting into. Notaries beware!

We last left off with a broad comparative analysis between the four different professional regulatory systems in Vermont.  Educators, attorneys, physicians and everyone else.  I don’t plan on spending too much time, if any, in this series discussing attorney discipline.  Namely because Bar Counsel Mike Kennedy is far more versed in this area and has already given a great overview of the Vermont attorney disciplinary system in his blog “Ethical Grounds.”  Since the licensing system for Vermont Educators has been in the news as of late, I think it makes sense to start with that model and compare it to some of the others.

One of the interesting things about the disciplinary system for licensed educators, is that as far as I can tell there are no “rules” covering the process of educator discipline. When I use the term rules, I mean in the form of a rule promulgated by an agency, in this case the Agency of Education.  The only thing that comes close is Vermont Agency of Education Rule 5700 which discusses the various types of educator discipline, but not the process of educator discipline.  Contrast this with the Office of Professional Regulation’s Administrative Rules of Practice; The Rules of the Board of Medical Practice; and of course Vermont Supreme Court Administrative Order 9, which governs attorney disciplinary proceedings.

By contrast, the educator disciplinary process in Vermont is governed strictly by statute.  In particular 16 V.S.A. Sections 1698-1708.  Frankly that strikes me as a bit odd. Statutes often provide broad based authority, but later rely on the administrative expertise of a particular agency to flesh out the details. For example at the Federal level, enabling statutes for the EPA are far less detailed then the regulations promulgated pursuant to the authority granted by the statute. The only reason I can think of not to have detailed rules governing a license disciplinary process, is that it makes the process more confusing – – by intention. In other words, it is certainly possible that the various shareholders of the educator licensing process wanted the disciplinary process to be somewhat dysfunctional. The more dysfunctional, the more doubt.  The more doubt, the more likely that the prosecuting authority is unable to meet the requisite burden of proof.

A brief word on the different types of burden of proof.  One could write a whole primer on this issue, but I want to try to keep it simple.  There are essentially three different burdens of proof that are used in various forums.  The first and probably most well known because of its place in popular culture is “beyond a reasonable doubt.”  This is the criminal standard and means that a prosecutor needs to convince each an every member of a jury that the accused is guilty, without leaving much room for doubt.  A juror could have “unreasonable doubt” that an accused is innocent, but if that is all, then the prosecution has met its burden.  Courts have refused to assign numerical percentages to burdens of proof, but generally speaking “beyond a reasonable doubt”  would be between 95-99% or so sure that an accused was guilty.  Why is the burden of proof is highest in criminal matters?  Because there is so much at stake concerning liberty and in some states, life interests.

The lowest level burden of proof is by a “preponderance of the evidence” often explained by courts as “more likely then not” that an event occurred.  This is the standard in civil cases and many administrative cases. Again to quantify, it means that the decider of fact is more than 50% certain that an event occurred.

Finally there is an intermediate burden of proof, proof “clear and convincing evidence.”  This is probably the least well known burden of proof, except perhaps for those of us who have received certain traffic and fishing/hunting violations and have had to appear before the Judicial Bureau.  This is evidence that establishes that the “truth of the facts asserted is highly probable.”  It is difficult to quantify, but best guess would be somewhere in the 75-80% range.

Now how does this all relate to the professional disciplinary system?  Professional disciplinary cases against attorneys, pursuant to Administrative Order 9, Rule 11(D)(5)(b) requires proof by “clear and convincing evidence.” Discipline against physicians pursuant to 26 V.S.A. Sec. 1354(c) requires proof by a “preponderance of the evidence.”  Similarly prosecutors in the Office of Professional Regulation, need to prove their cases by a “preponderance of the evidence” pursuant to 3 V.S.A. Sec. 129a(c).

Now licensed educators have a very unique, bifurcated burden of proof. Here’s what the statute, 16 V.S.A. Sec. 1704(b) says: “Alleged unprofessional conduct or incompetence. The burden of proof in matters involving alleged unprofessional conduct or incompetence, including denial of a license based on alleged unprofessional conduct or incompetence, shall be on the Secretary by a preponderance of the evidence, except that in the case of revocation or suspension for more than one year, the proof shall be by clear and convincing evidence.” (Emphasis mine).

Getting back to the guidance counselor from Burlington High School, you will remember that the Agency of Education initially sought a 364 day suspension, just one day short of a year. I suspect (without knowing for sure) that the reason for this, was that the prosecution would have had a lower burden of proof. Now that the charges have been amended and the Agency of Education is seeking a revocation of the guidance counselor’s license, the State will need to prove it s case by “clear and convincing evidence.”

This of course begs the question, why do licensed educators have two separate burdens of proof? Isn’t this confusing? I suspect that as alluded to in Part 1, the answer likely has something to do with politics.  But we can explore that more in a future post. 

The next part of this series will take a look at who has the power to “charge” allegations of unprofessional conduct.

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.