ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by Reese J. Purvis, Jr.
(Appellant), a registered nurse, from a Final Order of the South
Carolina State Board of Nursing (Board) dated February 29, 2008. In its Final
Order, the Board sanctioned Appellant for
violating the Code of Ethics for Nurses set forth in S.C. Code Ann. §
40-33-110(19) (Supp. 2007). Appellant contends
that the sanctions imposed by the Board improperly exceeded the sanctions set
forth by the Board upon the Record. Upon review of this matter, the Board’s Final
Order is affirmed.
BACKGROUND
Reese J. Purvis, R.N.
(Appellant) is a registered nurse who is licensed by the State Board of Nursing
(Board). The Board received a complaint regarding Appellant and after an
investigation, discovered that he had been arrested on November 16, 2006, for
Trafficking in Cocaine and Resisting Arrest and that he falsely stated on his
August 23, 2006 renewal application that he had never been terminated when in
fact he had been terminated by Doctors Hospital of Augusta on or about July 15,
2006. The Board authorized the issuance of a Complaint against Appellant on
October 4, 2007. As a result of that complaint, Appellant’s nursing license
was temporarily suspended by order of the Board.
On October 31, 2007,
Appellant waived his right to a formal hearing regarding his violation of the S.C.
Code Ann. § 40-33-110(19) and entered into a Memorandum of Agreement (MOA). Appellant
admitted the allegations in the MOA, and agreed to appear at a “Final Order
Hearing” on January 24, 2008 for the Board to determine what, if any, disciplinary
action should be taken. After hearing evidence from the Appellant, the Board
entered into Executive Session. It thereafter returned from executive session
and announced its oral ruling that called for Appellant to pay a five hundred
dollar ($500.00) fine, take courses in ethics and legal aspects, and submit to
evaluation by the Recovering Professionals Program (RPP). On February 29,
2008, the Board issued a written order signed by the President of the Board
which included the same disposition as the oral ruling but also stayed
Appellant’s existing suspension and placed him under a period of probation in
which he was limited in his practice.
Purvis
now appeals.
ISSUE
PRESENTED
Did the Board err as a matter of
law by imposing additional restrictions upon Appellant’s license in its Final
Order?
STANDARD
OF REVIEW
This
case is before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. § 1-23-600(D) (Supp. 2007) and S.C. Code Ann. § 40-1-160 (2001) upon an
appeal from a final decision of a licensing board or commission. As such, the
Administrative Law Judge sits in an appellate capacity under the APA rather
than as an independent finder of fact. In South Carolina, the provisions of
the APA -- specifically S.C. Code Ann. §1-23-380(5) (as amended by 2008 S.C. Act
No. 334) -- govern the circumstances in which an appellate body may reverse or
modify an agency decision. That section sets forth:
The court may not substitute its judgment for the judgment of
the agency as to the weight of the evidence on questions of fact. The court
may affirm the decision of the agency or remand the case for further
proceedings. The court may reverse or modify the decision [of the agency] if
substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory
provisions;
(b) in excess of the statutory authority of the
agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of
the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of
discretion.
S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334).
DISCUSSION
Appellant argues that
the Respondent violated S.C. Code § 40-1-120 (B) by imposing an additional
restriction upon Appellant’s license in its Final Order that was not included
in the January 24, 2008 oral ruling. Appellant asserts that the Board could
have stated on the record that they would make a decision at a later time, or explained
in the Final Order that it had met again and approved the additional
restrictions upon Appellant’s license. However, since there was no reference
to an impending Final Order upon the record or an additional meeting in the
Final Order, Appellant contends the Board erred in imposing the additional
probation restriction.
Section 40-1-120 (B)
requires that “[a] decision by a board to discipline a licensee as authorized
under this section must be by a majority vote of the total membership of the
board serving at the time the vote is taken.” Therefore, plainly the Board was
required to obtain a majority approval of the total membership of the board to authorize
any sanction against Appellant, including the additional sanction of probation.
Here, after receiving
the evidence and meeting in executive session, Board member Carrie H. James
made a motion that Appellant be fined $500.00 for providing false information
on his application; that he be required to take courses on both ethics and
legal aspects; and that he be evaluated by the Recovering Professional
Program. After some discussion, that motion was approved. During that
exchange, no mention was made of the issuance of a written order regarding the
Board’s action. A written Final Decision was subsequently issued on February
29, 2008, that included, in addition to the above listed sanctions, that
Appellant be placed on a period of probation in which he was limited in his
practice.
Though Appellant is
thus correct that the Board modified its oral ruling, his argument however
presumes that the Board’s modification of its sanction in its Final Order was
not authorized by a majority of the Board. However, no evidence was offered by
Appellant that the Board’s President unilaterally issued the sanctions set
forth in the Final Order without the Board’s approval. Rather, his argument
simply assumes that since the Final Order included a sanction not referred to
by the Board members during the hearing in this case, that sanction was not
properly authorized by the Board. To the contrary, the Final Order signed by
the President of the Board clearly set forth that it was issued on behalf of
the Board. The President thus affirmed that the sanction was authorized by the
Board.
The United States
Supreme Court has held that “[t]he presumption of regularity supports the
official acts of public officers, and, in the absence of clear evidence to the
contrary, courts presume that they have properly discharged their official
duties.” U.S. v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, (1926); see also INS v. Miranda, 459 U.S. 14, 103 S.Ct. 281, 74 L.Ed.2d 12 (1982). This presumption has been unquestionably recognized
in South Carolina. S.C. Nat'l Bank v. Florence Sporting Goods, Inc., 241
S.C. 110, 127 S.E.2d 199 (1962) (“In the absence of any proof to the contrary,
public officers are presumed to have properly discharged the duties of their
offices and to have faithfully performed the duties with which they are
charged.”); Felder v. Johnson, 127 S.C. 215, 217, 121 S.E. 54, 54 (1924)
(Same); Steele v. Atkinson, 14 S.C. 154, 161 (1880) (“The rule of law
undoubtedly is that, in the absence of any evidence to the contrary, the
presumption is that a public officer has done his duty - not that he has
violated it.”); See also Am. Jur. 2d Administrative Law § 528
(2000) (“Regardless of the standard of review employed, a presumption of
regularity attaches to the official acts of public officers within the scope of
their legally delegated authority.”). Thus, the President’s attestation that
the Final Order was issued on behalf of the Board is entitled to a presumption
of trustworthiness.
Additionally, Appellant
offered no law setting forth that the vote by the board must be upon the
Record. In fact, S.C. Code Ann. § 1-23-350 (Supp. 2007) provides, in part,
that:
A final decision or order adverse to a party in a contested
case shall be in writing or stated in the record. A final decision shall
include findings of fact and conclusions of law, separately stated.
Therefore, the Board could have either
issued a written order in a contested case or enter an order upon the record.
However, in either instance the final decision must include separately
stated findings of fact and conclusions of law. In this case, the recitation
of the sanction made in the motion by Ms. James clearly did not include findings
of fact and conclusions of law. That recitation thus did not constitute a
final order under Section 1-23-350.
Furthermore, it is well
settled law in this State that “a judge is not bound by a prior oral ruling and
may issue a written order which is in conflict with the oral ruling.” Corbin
v. Kohler Co., 351 S.C. 613, 621, 571 S.E.2d 92, 97 (Ct. App. 2002); see
also Ford v. State Ethics Comm’n, 344 S.C. 642, 645, 545 S.E.2d 821,
823 (2001). That doctrine is based not just upon the rules of procedure, but
also upon the case law of this State. See Archer v. Long, 46
S.C. 292, 24 S.E. 83 (1896). The reasoning supporting this doctrine is based
upon the principle that the judgment of the court is not final until a written
order is issued. Following that reasoning in this APA proceeding, since there
is no final decision until an order is issued with findings of fact and
conclusions of law, the Board was also was not bound by its prior oral ruling and
the decision was subject to change.
ORDER
Accordingly, based on the foregoing reasons, the Final Order of the Board is AFFIRMED.
AND IT IS SO ORDERED.
_________________________________
Ralph King
Anderson, III
Administrative
Law Judge
October 13, 2008
Columbia, South Carolina
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