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.

A few months ago I attended the first meeting of of the Vermont Ethics Commission and blogged about it here (incidentally if you know how to locate the Commission’s website, please drop me a line, I haven’t been able to find it). During the course of that meeting I engaged in an exchange with the Vermont Secretary of State’s Office about executive officers and state employees getting guidance of a confidential nature from the Commission. The Secretary of State tweeted that “transparency isn’t always the answer…. some exceptions are OK.”

I couldn’t agree more. The question is where the line gets drawn. The fact of the matter is that the Public Records Act (PRA) and its federal counterpart the Freedom of Information Act (FOIA)(incidentally it is a pet peeve of mine when people use FOIA as shorthand for the PRA since they contain different standards are are subject to a different body of case law, interpretation and precedent) are increasingly being weaponized. There are those that might argue that the weaponization is a price we pay for a free society, but I’m not so sure.

Over the past week or so there have been two noteworthy examples where both the PRA and FOIA were turned on their respective heads. The first story, as reported by the New York Times, comes from the Environmental Protection Agency (EPA) where career employees who are speaking out about the alleged harm being wrought by current Administration, are having their emails scrutinized — by political operatives with what appears to be an intent to suppress and intimidate. For example the emails sent by a career EPA employee on his last day of work, were requested under FOIA and within the emails the departing employee rebuked the practices of the Administration and indicated to the recipient list that he knew that they shared his views. So while that employee is now presumably collecting his retirement, his colleagues left behind are now potentially subject to additional scrutiny, for an action that they had no control over.

Here in our little corner of the woods, reported by VT Digger (which reminds me I need to send a contribution to the Digger year end fundraising campaign STAT) things took a interesting turn under the PRA. Evidently an confidential report on public safety communications was released to the press without permission. According to Digger, John Quinn, the Chief Information Officer of Vermont, admonished the Public Safety Broadband Commission stating that “I fully expect a public records request of all commission members and members with access to the report, to turn over any communication between commission members and Stephen Whitaker,” ……“You are all subject to the records law as a commission member.”  While I would’t exactly call this a weaponization of the PRA, it clearly represents a unique utilization of the law, wherein the Executive Branch of government is essentially telling one of its many working parts that the PRA can and will be used “against” it. It will be interesting to see whether the Commission members have state issued email addresses or if they use their own. That of course represents a whole host of other issues that were recently touched on right here.

PRA requests come with real costs – – political, financial, societal etc. This is especially the case at the municipal level in Vermont where resources and expertise are by design not as plentiful as the state and federal government, but the PRA applies just the same. We are obviously going through an unusual period in history where “normal” conventions are no longer the norm. The Vermont Supreme Court has long held that “identity and motive of the requestor cannot be considered when weighing access to public documents.” Shlansky v. City of Burlington, 2010 VT 90, ¶ 11 (citing Finberg v. Murnane, 159 Vt. 431, 437 (1992)). Maybe it is time to reconsider that proposition, maybe not. But the opportunity to weigh in is coming up as according to the Secretary of State’s Office, the legislature is looking at a rewrite of Vermont Open Meetings and Public Records Laws in this upcoming session.  Stay tuned…..

As previously advertised, yesterday I had the pleasure of observing the inaugural meeting of the Vermont Ethics Commission. As one would expect in a first meeting, most of the discussion was centered around the nuts and bolts of the work that the Commission has before it in the months ahead. Since the Commission, like most similarly situated entities in Vermont are volunteers who get compensated for milage, lunch, a $50 per diem and a hardy “thank you for your public service” the most pressing issue facing the Commission is hiring a Executive Director, who will carry out the vast majority of the Commission’s day to day functions.

So what does the Commission do? At the onset, not all that much. The enabling statute really sets out more of an advisory, gatekeeper roll, with no enforcement powers. While the Commission will have the ability to accept and screen ethics complaints, any complaint with legs will need to be referred out to the appropriate regulatory entity. Since the Commission is an independent (in that it does not report to the Governor) entity of the Executive Branch, compliance with referrals to the legislature (based on allegations concerning legislators) and judiciary (based on allegations concerning government attorneys and judges) is essentially based on the good will of the receiving branch of government. Campaign finance questions get referred to the Attorney General (or theoretically State’s Attorney, but this seems unlikely) and allegations in respect to the to-be-drafted Department of Human Resources’ (DHR) Employee Code of Ethics get sent to Department.

FUN FACT: The DHR is in the process of drafting its own Code of Ethics, at the same time the Commission is charged with drafting a State Code of Ethics in consultation with DHR. Did you follow that? Two codes of ethics. Why do we need two codes of ethics regulating state employees you ask? Well it seems that at least the Commission’s Code will be more of an aspirational guideline, then something that can be used for enforcement purposes.

Another provision of the law concerns the “required” disclosure by candidates for statewide and legislative offices of: 1) sources of personal income; 2) 10% or greater corporate ownership; 3) leases and contracts with the State; 4) a copy of the IRS 1040 tax returns; and 5) any board that the candidate sits on.  Oh and most of these provisions also apply to the candidate’s spouse/domestic partner (a wrinkle that begs for its own blog post).  But here’s the kicker, although the controlling statute states that the candidate “shall” file these disclosures, there is no penalty for not filing the disclosures. Evidently the legislature decided to leave it to the political process, instead of the legal process to figure out the effect of non-compliance.

Campaign finance disclosure “requirements.”

One of the more perplexing outtakes of the meeting is that the Commission can provide written “guidance” to officers and employees, but that the guidance received is confidential (thus creating an exemption to the Vermont Public Records Act) unless the requestor decides to make it public. Now I can understand taking out identifying information (name, agency, etc.) in the guidance, but I would think it is ultimately of fundamental importance that the public be informed of the type of ethics advice being provided by the Commission, to state employees. At the most basic level, if this information is withheld how is the public supposed to evaluate whether the Commission is serving its intended purpose? Especially since in this instance it appears as though that purpose is focused on education and training, rather than penalties and enforcement. When I raised this issue on Twitter, the Vermont Secretary of State’s Office chimed in about encouraging employees to ask for help and acknowledged that in respect to the Public Records Act “transparency isn’t always the answer…some exceptions are ok.” This was an interesting and appreciated comment from an office currently on its 4th annual Transparency Tour. More thoughts on this in an upcoming post.

The Commission has its work cut out for it. Hiring a Executive Director; convincing the public that education and training (rather than enforcement) will be enough; and getting a viable, working entity up and running by January 1, 2018 (the date the powers of the Commission go into effect). I for one am looking forward to following the Commission’s progress to see if it can succeed in this endeavor, within the parameters it’s been given.