ORDERS:
ORDER OF REMAND
I. Introduction
This matter is an appeal by Deborah Harrington, R.N. (Harrington) of a decision by the
South Carolina Department of Labor, Licensing, and Regulation, State Board of Nursing
(the Board) to place Harrington's license to practice nursing as a registered nurse on probation for a
period of one (1) year. Harrington argues that the probation should be reversed because she did not
receive notice of the panel hearing. After reviewing the record and considering the arguments, I find
that this case must be remanded to the Board for the taking of evidence on the issue of whether
Harrington received constitutionally adequate notice of the panel hearing.
II. Issue
Did Harrington receive constitutionally adequate notice of the panel hearing?
III. Analysis
A. Background
On August 27, 1999, the Board attempted to serve a Formal Complaint and Notice of Hearing on
Harrington by certified mail. The Formal Complaint charged Harrington with a violation of S.C. Code
Ann. § 40-33-935(g) by failing to demonstrate and apply the knowledge, skill, and care required by
generally accepted standards of the profession. The Board mailed the correspondence to an address in
Forest Park, Illinois. However, the correspondence was returned and marked "RETURN TO SENDER
NO FORWARD ORDER ON FILE."
The panel hearing was originally scheduled for September 29, 1999, but was continued until December
9, 1999. On October 13, 1999, the Board attempted to serve the Order of Continuance on Harrington at
the same Illinois address via certified mail. Again, the correspondence was returned to the Board and
marked "MOVED, LEFT NO ADDRESS."
Once again, the panel hearing was continued until December 17, 1999. On December 7, 1999, the
Board attempted to serve the second Order of Continuance on Harrington by certified mail at the same
Illinois address. The record does not reflect whether this correspondence was returned to the Board in
the same manner as the previous correspondence. Harrington, however, claims that she received neither
of the two orders continuing the hearing nor the original notice of the panel hearing. Harrington claims
that although she lived in Illinois during parts of 1998 and 1999, she moved back to South Carolina at
the beginning of September, 1999. She argues that upon her return she immediately telephoned the
Board with information on her new South Carolina address. Counsel states that "[u]pon receipt of her
annual license renewal form, [Harrington] noted that the address listed still reflected [the Illinois
address]," and that Harrington telephoned the Board a second time to provide her new address
information. (Brief of Appellant, page 1). Counsel also states that Harrington completed the change of
address section on her license renewal application, but does not state when Harrington submitted this
written information to the Board. (2)
On December 17, 1999, a two-member panel of the Board conducted an evidentiary hearing in
Harrington's absence. The panel went into executive session at the conclusion of the hearing. While
the record does not reflect when the panel voted on the outcome of the hearing, the panel issued a report
on March 3, 2000. The panel found that Harrington violated S.C. Code Ann. § 40-33-935(g) in failing
to demonstrate and apply the knowledge, skill and care required by generally accepted standards of the
profession when she failed to notify a physician of a change in a patient's blood pressure after being
instructed to do so by her supervisor. The panel recommended probation for one year, a $250 penalty
and completion of a Legal Aspects of Nursing workshop.
On March 3, 2000, the Board served a Notice of Final Order Hearing, with an attached copy of the
panel's report, on Harrington by certified mail at her new South Carolina address. The return receipt
indicates that Harrington signed for the correspondence. Harrington subsequently retained counsel and
requested a continuance of the Board's hearing to allow counsel sufficient preparation time. The
Board's hearing was continued twice, and the hearing was finally conducted on July 27, 2000. All of
the notices for the Board's hearing informed Harrington that she had "the right to appear before the
Board at [the] hearing and to submit briefs and be heard in oral argument in opposition to or in support
of the recommendations of the Panel."
At the Board's July 27, 2000 hearing, the Board considered arguments of counsel and allowed counsel
to submit a proposed Consent Order as an exhibit. Although counsel indicated that Harrington was
available via telephone to answer any questions that the Board might have of her, the Board considered
oral arguments only and did not take any testimony. Upon the conclusion of the hearing, the Board
voted to accept the panel report and adopt the panel's recommendations. Notably, the Board's August
3, 2000 Final Order is devoid of any findings of fact or conclusions of law on the issue of Harrington's
notice of the panel hearing.
B. Standard of Review
In deciding Harrington's challenge to the Board's decision, the provisions of the South Carolina
Administrative Procedures Act (APA) are controlling. Lark v. Bi-Lo. Inc., 276 S.C. 130, 276 S.E.2d
304 (1981). When an appeal is made, S.C. Code Ann. §§ 1-23-380(A)(6) and (B) (Supp. 2000) of the
APA explain that the Administrative Law Judge (ALJ) may affirm the decision of the agency or remand
the case for further proceedings. Further, the ALJ may reverse or modify the decision below only if
substantial rights of the appellant have been prejudiced because the 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.
Here, a remand to the Board for an evidentiary hearing is necessary to sufficiently evaluate the issue of
whether Harrington received constitutionally adequate notice of the panel hearing.
C. Disputed Issue
1. Positions of Parties
Harrington argues that the Board's adoption of the panel report violated her due process rights as it
failed to give her the opportunity to respond to the charges against her and to conduct effective cross
examination of the witnesses. The Board argues that it mailed all notices of the panel hearing to
Harrington's last known address, and therefore, it satisfied due process requirements.
2. Application of Law
Action of an agency which affects individual rights is void where the individual has not been provided
with proper notice and an opportunity to be heard. S.C. Const. Art. I, § 22 ("No person shall be finally
bound by a judicial or quasi judicial decision of an administrative agency affecting private rights except
on due notice and an opportunity to be heard . . . .").
It is a fundamental doctrine of the law that a party whose personal rights are to be affected by a personal
judgment must have a day in court, or opportunity to be heard, and that without due notice and
opportunity to be heard a court has no jurisdiction to adjudicate such personal rights. A judgment by a
court without jurisdiction of both the parties and the subject matter is a nullity and must be so treated by
the courts whenever and for whatever purpose it is presented and relied on.
Webster v. Clanton, 259 S.C. 387, 192 S.E.2d 214 (1972).
More particularly,
an elementary and fundamental requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all the circumstances, to apprize interested parties of the
pendency of the action and afford them an opportunity to present their objections.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865
(1950) (emphasis added). "When notice is a person's due, process which is a mere gesture is not due
process." Id. "The means employed must be such as one desirous of actually informing the absentee
might reasonably adopt to accomplish it." Id.
Therefore, adequacy of notice should always be evaluated by reference to the surrounding
circumstances. U.S. v. One Toshiba Color Television, 213 F.3d 147, 153 (3rd Cir. 2000), citing
Mullane v. Central Hanover Bank & Trust Co., 70 S.Ct. 652 (1950). "The focus is on the
reasonableness of the balance, and, as Mullane itself made clear, whether a particular method of notice
is reasonable depends on the particular circumstances." Tulsa Professional Collection Services, Inc. v.
Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988).
When the government knows, or can easily ascertain, where a person may be found, it must direct its
notice there, and not to some other address where the designee formerly resided. Small v. U.S., 136
F.3d 1334 (D.C. Cir. 1998). The exercise of due diligence in locating a person "must extend to those
places where information is likely to be obtained and to those persons who, in the ordinary course of
events, would be likely to receive news of or from the absent person." In the Interest of L.S., 788 P.2d
875 (Kan.App. 1990), quoting In the Interest of A.W., 401 N.W.2d 477 (1987). This is especially true
when correspondence is returned by the postal service indicating that the individual no longer resides at
the address. See Benton v. Logan, 323 S.C. 338, 474 S.E.2d 446 (Ct. App. 1996), citing Good v.
Kennedy, 291 S.C. 204, 352 S.E.2d 708 (Ct. App. 1987) (Where county treasurer received back
envelope marked "Forwarding Order Expired," it was "quite apparent that [the taxpayer] had a better
address than the one to which the treasurer had sent the notice [of redemption]" and due diligence
required further inquiry.).
The Board argues that it did not know of Harrington's new South Carolina address prior to the
December 17, 1999 panel hearing: "[T]he Board did satisfy proper notice requirements when it mailed
Notices of Hearing and two Orders of Continuance to the Appellant's Illinois address, because that
address was the last address of record that the Respondent provided to the Board." (Page 4, Brief of
Respondent). Harrington claims that she informed the Board of her new South Carolina address prior to
the December 17 panel hearing. The Board maintains that it does not have any record of Harrington's
telephone call and that Harrington herself has failed to produce any evidence of the telephone call. The
latter argument, however, ignores the fact that the July 27, 2000 hearing was noticed for oral arguments
only, pursuant to Regulation 91-19.k (See June 28, 2000 Notice of Final Order Hearing). (3) Therefore,
it was not Harrington's responsibility to present evidence at that hearing.
The Board had the option of ordering another hearing before either the panel or the Board, to take any
necessary evidence to supplement the panel record. Regulation 91-19.k provides
Upon consideration of the report of the panel . . . and of the showing made to the Board, the Board may:
1. refer the matter back to the panel . . . for further hearing; or
2. order a further hearing before the . . . Board . . . ; or
3. proceed upon the record of the prior proceeding before the panel . . . .
26 S.C. Code Ann. Regs. 91-19.k. However, after being presented with the issue of Harrington's notice
of the panel hearing, the Board chose not to order any further evidentiary hearing. (4) Because the Board
chose to do nothing other than to adopt the panel report, the record is devoid of any evidence, findings
of fact, or conclusions of law on the critical issue of notice. (5) Therefore, I find it necessary to remand
the case to the Board for a further hearing to take evidence, and to make findings of fact and
conclusions of law on whether Harrington received constitutionally adequate notice of the panel
hearing.
On remand, the Board shall allow the presentation of evidence and shall make specific findings of fact
addressing whether Board employees knew of, or could have easily ascertained, Harrington's new South
Carolina address prior to the December 17 panel hearing. More particularly, the findings shall address,
but need not be limited to, the following: (1) whether Harrington in fact notified Board employees of
her new address information, either verbally or in writing, prior to the December 17, 1999 panel
hearing, and the approximate date(s) of such communications; (2) what steps the Board took to find a
current address for Harrington after the August 27, 1999 Formal Complaint and Notice of Panel
Hearing was returned indicating that Harrington had moved; (3) whether the Board contacted, or could
have contacted, any individuals or other sources likely to have a current address for Harrington; and (4)
by what means did Harrington receive her annual license renewal form.
IV. Conclusion
Based on the foregoing, this case is remanded to the Board for a hearing to take evidence and to make
findings of fact and conclusions of law on whether Harrington received constitutionally adequate notice
of the panel hearing.
AND IT IS SO ORDERED.
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 22, 2001
Columbia, South Carolina
1. Upon filing the Brief of Appellant, Mr. Epting submitted a Motion to be Relieved as Counsel. By
order dated February 27, 2001, the motion was granted.
2. The Board states that Harrington filed her license renewal application on January 13, 2000. (Brief of
Respondent, page 2).
3. Regulation 91-19.k provides that when the panel has filed a report, the Board shall, before acting upon
such a report, notify the respondent of the time and place which the Board will consider the report for
the purpose of determining its action thereon. Further, the regulation states the following:
The respondent . . . shall have the right[,] and shall be so informed in [the] notice[,] to appear before
the Board at [the] meeting and to submit briefs and be heard in oral argument in opposition to or in
support of the recommendation of the panel . . . .
26 S.C. Code Ann. Regs. 91-19 (emphasis added). Notably, the June 28, 2000 Notice indicates that
should an appearance be requested, both counsel for the Respondent and Complainant shall be limited
to fifteen (15) minutes each.
4. The record indicates that the Board considered counsel's argument that Harrington verbally notified
the Board of her new address prior to the panel hearing. However, the Board essentially dismissed this
argument as immaterial in light of Regulation 91-12.5, which provides that any change in address must
be submitted in writing.
5. The record indicates that Harrington made herself available by telephone on the day of the Board's
hearing in the event that the Board had any questions for her. (Transcript of July 27, 2000 Proceedings,
page 3, lines 8-18 and page 8, lines 18-19). However, the hearing was noticed for oral arguments only.
Pursuant to Regulation 91-19.k, the nature of the hearing was not evidentiary; rather, its purpose was
merely to determine the necessity of any further evidentiary hearing at a later time. Therefore, it was
not Harrington's responsibility to present evidence at the July 27, 2000 hearing; rather, it was the
Board's responsibility to schedule and properly notice an evidentiary hearing at a later time. |
