ORDERS:
ORDER
I. Statement Of The Case
The South Carolina Board of Examiners for the Licensure of Professional Counselors, Marital and
Family Therapist (Board) served Kenneth E. Smith (Smith) with a Formal Accusation dated April
17, 1997. The Formal Accusation asserted that Smith, then a licensed professional, family and
marital therapist, had engaged in an improper sexual relationship with a patient.
The Board met to consider the matter on September 18, 1997. After a hearing, the Board voted
unanimously to suspend Smith's license for a period of five years. The five year suspension
resulted from the Board's finding that Smith had engaged in a sexual relationship with a woman
who had sought counseling from him. The Board concluded that Smith's behavior violated S.C.
Code Ann. §§ 40-75-170(A)(9, 10, 12 & 13). Jurisdiction for Smith's appeal of the Board's
decision is in the Administrative Law Judge Division. S.C. Code Ann. § 40-75-180 (Supp. 1997).
II. Issue On Appeal
Did the Board properly impose a five year suspension on Smith's license as a licensed professional
counselor and as a licensed marital and family therapist?
III. Law and Analysis
A. Lack of Sworn Written Complaint
Smith argues the suspension is improper since a formal complaint was not obtained in conformity
with the Administrative Procedures Act, §§ 1-23-310 et seq., §§ 40-75-10 et seq., and Regulation
36-2.1. I cannot agree.
Smith cites no section of the APA which the Board violated. Rightly so since the APA is not
violated by a "defective complaint" since no provision of the APA requires a "complaint." Rather,
the APA demands "notice by mail to the licensee of facts or conduct which warrant the intended
action. . . ." S.C. Code Ann. § 1-23-370(c) (Supp. 1997). Adequate notice to Smith was provided
by the Formal Accusation dated April 17, 1997. That document is sufficiently detailed to place
Smith on notice.
Further, S.C. Code Ann. § 40-75-160 is likewise not violated. That section describes a process by
which the Board may receive a complaint: "The board may receive complaints by any person
against a licensee and may require the complaints to be submitted in writing specifying the exact
charge or charges and to be signed by the complainant. . . ." (Emphasis added). However, § 40-75-160 does not require complaints to be sworn. Not only do such complaints not need to be sworn,
they are not required to be signed, or even in writing.
Further, the section does not prohibit the Board from pursuing an investigation on its own volition.
Rather, just the opposite is true. The statute specifically contemplates that a board member may
make an initial investigation or even file a complaint. "If the board desires to proceed further it
may file, in its discretion, a formal accusation charging the licensee with a violation of this chapter."
S.C. Code Ann. § 40-75-160. That is precisely what happened here. The Board became aware of
an alleged improper conduct, initiated an investigation, and issued formal charges once the
investigation was complete.
Likewise, S.C. Code Regs. 36-2.1 does not prohibit the Board from pursuing its own investigation.
Rather, Regs. 36-2.1 states that "[c]harges against licensees shall be filed with the Board by
submitting a sworn, written complaint to the Board. . . ." and in general addresses procedures for
handling a complaint filed by the public. However, no provision of Regs. 36-2.1 prevents Board
investigations which result in formal accusations being made against license holders. Accordingly,
the Board acted within its discretion in investigating the matter using the procedures described in
§ 40-75-160 and further, acted in conformity with the applicable statutes and regulations.
B. Complaint Based on Erroneous Information
Smith argues the suspension is improper since the initial complaint filed on May 20, 1994 was
based on erroneous information. Here, the record demonstrates that the complaint of May 20, 1994,
was in fact based upon the erroneous information that Smith had been "criminally indicted" for
improper sexual conduct occurring during 1989-1990. Such incorrect information, however, is of
no consequence to the suspension for four reasons.
First, a correct decision will not be disturbed because it is based on an incorrect ground. State Bd.
of Medical Examiners v. Gandy, 258 S.C. 349, 188 S.E.2d 846 (1972). Thus, even if the
"indictment" were a factor, the issue on appeal is whether the judgment is properly supported by
the evidence in the record. Under the record of this case, Smith admitted he violated the ethics of
his profession and admitted that he had an obligation as therapist to prohibit the improper sexual
conduct.
Second, the decision to suspend Smith was not based upon a label of "criminally indicted." A
criminal indictment status was not the issue; rather the Board made its determination based upon
Smith's admitted conduct, not an erroneous label.
Third, even assuming an error in characterizing Smith's status was made, Smith had a hearing at
which he could have chosen to fully explain the erroneous information. He did not do so.
Finally, and in all events, no question exists as to the impact of the erroneous information. The
Board's order explicitly states that "[t]he Board concluded that the formal accusation of the State
in this matter was not based upon the incorrect information alluded to by [Smith]. . . ." Final Order
at 2. Thus, the erroneous information is irrelevant to the Board's decision to suspend Smith and
is not a proper basis for varying the Board's decision.
C. Laches
Smith seeks to invoke the doctrine of laches in an effort to prevent the Board from imposing the
suspension. Laches is inapplicable here since such a rule rarely applies to state actions designed
to protect the public and, in any event, cannot apply when no prejudice is shown by Smith.
A general rule prevails that laches does not apply to state government actions and that states are not
chargeable with the laches of their officials. 27A Am. Jur. Equity § 155; see also 51 A.L.R.4th
1147 (the doctrine of laches generally does not apply to disciplinary proceedings). Nothing in this
case shows the existence of extraordinary facts or circumstances sufficient to deviate from the
general prohibition of applying laches to government officials. Thus, in this case, the Board, acting
as an arm of state government, is not subject to laches.
Additionally, even if laches were applicable, Smith has not demonstrated a critical element of the
defense: prejudice. See Mid-State Trust, II v. Wright, 323 S.C. 303, 474 S.E.2d 421 (1996) (the
party asserting laches must show it has been materially prejudiced by the other party's delay). In
fact, prejudice is very difficult to establish where the suspension is based on the professional's
admissions of misconduct. See, e.g., Ficklinger v. Commonwealth, 439 A.2d 235 (Pa. 1982); see
Gore v. Board of Med. Quality Assur., 167 Cal. Rptr. 881 (1980) (where the licensee's testimony
concerning the underlying events was no less reliable at the disciplinary hearing as it was at a
deposition for an earlier malpractice action, the court found that laches did not apply because the
licensee was not prejudiced).
Here, in a sworn deposition given in a prior action, answered in plain language, Smith established
his improper involvement with a patient. Smith admitted his misconduct. Further, Smith's ability
to testify was not prejudiced as a result of the delay since Smith made no claim he was prevented
from presenting any facts because of the delay. Cf. 59 A.L.R.4th 1104 (1988). No prejudice has
resulted from the delay of the Board in imposing the suspension and laches is not proven.
D. Quorum
Smith argues that the Board had no legal authority to impose a suspension since it failed to muster
a quorum as required by law. I disagree; a quorum was present.
At the time of the hearing that resulted in the suspension, the Board had a potential membership of
eight but consisted of only six sitting members since the remaining two positions were vacant. To
obtain a quorum, a majority of the membership must be present. S.C. Code § 40-75-30(1). In
deciding what number constitutes the membership for calculating a majority, "if there is a vacancy
on the board, a majority of the members serving constitutes a quorum." S.C. Code Ann. § 40-1-60(c) (Supp. 1997). Thus, a majority of the members serving on the Board was four. The hearing
that produced the suspension was before four members. Accordingly, a quorum was present.
E. Board Sanction
Smith claims the five year suspension is arbitrary and capricious. I disagree.
A decision is arbitrary if it is without a rational basis, is based alone on one's will and not upon any
course of reasoning and exercise of judgment, is made at pleasure, without adequate determining
principles, or is governed by no fixed rules or standards. Deese v. South Carolina State Bd. of
Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985) (citing Hatcher v. South
Carolina District Council of Assemblies of God, Inc., 267 S.C. 107, 226 S.E.2d 253 (1976);
Turbeville v. Morris, 203 S.C. 287, 26 S.E.2d 821 (1943)). To prevail, Smith must show the
suspension has no rational basis. While others could be identified, in this case the suspension is
rationally based for at least two reasons.
First, the Board has broad discretion is these matters since the Board is specifically authorized to
discipline Smith. S.C. Code Ann. § 40-1-70(8) (Supp. 1997). In establishing the extent of
discipline, the Board is given a range of disciplines from a public reprimand to a permanent
revocation. S.C. Code Ann. § 40-1-120. As to a suspension "the board may . . . place a licensee
on probation or restrict or suspend the individual's license for a definite or indefinite time. . . ." S.C.
Code Ann. § 40-1-120. In this matter a five year suspension was entirely within the Board's range
of discretion. In fact, the Board could easily have revoked the license entirely had it chosen to do
so. Id.
Second, there is no lack of justification for the sanction imposed since the Board is not required to
invoke certain sanctions for certain violations. See Gale v. State Bd. of Medical Examiners of
South Carolina, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984) A showing of any misconduct listed
in the applicable statutes may result in license revocation. S.C. Code Ann. § 40-1-120. The
Board's findings are supported by substantial evidence. Accordingly, no lack of a rational basis
is shown.
F. Admissibility of Evidence
Smith argues the Board should be reversed since the evidence of wrongdoing is found in only two
documents: a summary judgment order and a deposition. Both documents arose from a separate
action in the federal court. Smith argues the Board improperly relied upon the facts of the summary
judgment order and improperly considered the deposition to establish facts of wrongdoing. I
disagree.
1. Summary Judgment Order
As to the summary judgment order, a federal court held that the facts surrounding Smith's sexual
activities with a patient constituted professional malpractice. The malpractice determination arose
from a federal law suit in which a patient sued Smith. The patient filed a motion for summary
judgment asking the federal district court to rule on the sole question of Smith's liability for
malpractice. On February 28, 1995, Judge William B. Traxler, Jr. issued an order finding Smith
liable for malpractice and relied upon the "undisputed facts" of Smith's sexual activity with a
patient.
When Judge Traxler's order was presented to the Board as evidence, Smith objected that the facts
found by Judge Traxler could not constitute facts upon which the Board could reach its decision of
wrongdoing by Smith. In answering the objection, the Board's legal advisor explained,
"I would recommend that you accept this as evidence -- some evidence that the State
has presented on underlying facts that are relevant to your cases, but it could not be
considered and you cannot accept another judge's decision that something
constitutes professional misconduct under your statutes." Tr. p. 44 lines 16 - 21.
The Board accepted the evidence in reliance upon this advice. Tr. p. 45 lines 1 - 3. When
considered as a whole, the Board interpreted the advice to mean that the underlying facts of Judge
Traxler's order could be accepted by the Board as "some evidence" but certainly not controlling
evidence of the underlying facts of Smith's activities. Two reasons establish the Board correctly
received and applied the evidence.
First, the Board, as a fact finder, may receive any relevant evidence (unless rendered improper by
some legal basis) so long as the evidence assists in arriving at the truth. State v. Petit, 144 S.C. 452,
142 S.E. 725 (1928). In its task of arriving at the truth, evidence received by the Board must be
weighed and considered in light of opposing evidence since such weighing of evidence is uniquely
a function of the fact finder. See Bivens v. Watkins, 313 S.C. 228, 437 S.E.2d 132 (Ct. App. 1993).
Here, the Board carried out its fact finding duties but found itself faced with the receipt of no
opposing evidence from Smith on the issue of wrongdoing. In this record, Smith produced no
witnesses; no documentary evidence; no factual defense. In other words, the only evidence on the
wrongdoing issue is that evidence submitted by the State in the form of Judge Traxler's order.(1)
Thus, as to the issue of wrongdoing, the "some evidence" from Judge Traxler's order was not offset
by any evidence from Smith. Under such circumstances, the "some evidence" from Judge Traxler's
order was properly considered by the Board.
The second reason for finding the Board correctly received and applied the evidence in reaching its
suspension decision is that the Board did not hold it was bound by Judge Traxler's findings.
Instead, the Board provided Smith with an opportunity to present his case and establish any contrary
evidence he wished. Thus, the Board opened itself to the receipt of additional evidence and, finding
no contrary evidence, factually found Smith's acts for disciplinary purposes were the same as his
acts for committing malpractice.
2. Deposition
The second item of evidence objected to by Smith is a deposition Smith gave in a federal
malpractice action. In that deposition, Smith, in specific and plain language, detailed his sexual
relationship with a patient. However, when the deposition was sought to be used as evidence at the
Board's hearing, Smith objected. The objection's basis was an attempt to apply a rule holding that
depositions from a prior action are admissible in a subsequent action "only if they involve the same
subject matter between the same parties." Tr. p. 37. The objection was properly dismissed by the
Board for two primary reasons: broad discretion resides in the body admitting the deposition and
the criteria for use of a prior deposition in a subsequent action is not as rigid as Smith asserts.
First, the trial judge exercises discretion in allowing the use of depositions in a court proceeding
since such an issue is an evidentiary matter. Paschal v. Causey, 309 S.C. 206, 420 S.E.2d 863 (Ct.
App. 1992). In examining a decision to admit evidence, such as the current case, a reversal is
warranted only if there is an abuse of discretion amounting to a manifest error of law. Hook v.
Rothstein, 281 S.C. 541, 556, 316 S.E.2d 690, 700 (Ct. App.), cert. denied, 283 S.C. 64, 320 S.E.2d
35 (1984). Here, there is no error of law.
As a matter of law, the use of depositions in a court proceeding is governed by Rule 32 of the South
Carolina Rules of Civil Procedure. McAllister v. Smiley, 301 S.C. 10, 389 S.E.2d 857 (1990). The
language of SCRCP Rule 32(a) provides that "any part or all of a deposition, so far as admissible
under the rules of evidence applied as though the witnesses were then present and testifying, may
be used against any party who was present and represented at the taking of the deposition or who
had reasonable notice thereof. . . ." (emphasis added). Further, the deposition of a party may be
used by any adverse party for any purpose permitted by the rules of evidence. SCRCP 32(a)(2).
Under SCRCP Rule 32, the deposition was properly admitted since no rule of evidence would have
excluded the testimony of Smith. The most obvious objection and the one most easily answered is
the assertion that the deposition testimony was excludable hearsay. However, a statement is not
hearsay if it is offered against a party and is the party's own statement in either an individual or a
representative capacity. SCRE 801(d)(2)(A). Obviously, the State's use of Smith's testimony in
which he admits his sexual activity with a patient is well within the rules for admissible testimony.
The second reason for agreeing that the deposition was properly received is that the criteria for use
of a previous deposition in a subsequent action is not as rigid as Smith asserts. Smith objected on
the ground that the deposition is proper "only if they involve the same subject matter between the
same parties." While a generalized five part test has been offered to answer the broadest range of
cases, the more precise statement is that "[t]he admissibility of such depositions is not, however,
dependent on exact identity of parties and causes of action, but rather on identity of the question
being investigated and on the opportunity of the party, against whom the deposition is offered, to
examine or cross-examine." 26A C.J.S. Depositions § 98 (1956).
Here, in both the malpractice action and in the disciplinary hearing, the central question was the
same. That question was whether Smith engaged in improper sexual activity with a patient.
Further, no manifest unfairness results from the use of the deposition. In the deposition, Smith was
obviously present, Smith was represented by counsel, and Smith's counsel had the opportunity to
cross-examine Smith. Further, at the disciplinary hearing, Smith could have explained any of the
statements made in the deposition. The deposition was properly received.
3. General Conclusion As To Evidence
On the whole, Smith essentially argues that the reliance upon documentary evidence alone, without
witnesses, deprived him of basic due process. I cannot agree.
Due process has as its essential inquiry the issue of whether the fundamental requirement has been
met of having the opportunity to be heard at a "meaningful time and in a meaningful manner."
South Carolina Nat'l Bank v. Central Carolina Livestock Market Inc., 289 S.C. 309, 345 S.E.2d
485 (1986). For Smith that inquiry is answered in the affirmative.
Smith was presented with a proper forum before the Board and had an ample opportunity to present
contrary evidence to establish a lack of wrongdoing. Smith cannot claim his due process rights
were infringed because he did not have the opportunity to confront the witness who testified against
him since Smith himself is the one who testified by way of deposition. Smith could have testified
at the Board hearing in an effort to deny the allegations or to explain his admissions. Instead, Smith
made no factual argument and presented no evidence that the unethical conduct did not occur.
Having been afforded his opportunity to clarify the evidence and having chosen not to present any
factual evidence on the issue of wrongdoing, due process cannot be invoked to demand more.
Further, and in any event, once the record is made, S.C. Code Ann. § 1-23-380 clearly prohibits
an appellate body from substituting "its judgment for that of the agency as to the weight of the
evidence on questions of fact." Under the record in this case, reasonable minds could easily reach
the conclusion the Board reached. See Osteen v. Greenville Co. School Dist., 323 S.C. 432, 475
S.E.2d 775 (Ct. App. 1996). Accordingly, Smith's five year suspension is proper.
IV. Conclusion
Substantial rights of Smith are not prejudiced, and the Board's findings of fact are supported by
substantial evidence. The Board's investigation complied with the statutory and regulatory
procedural requirements, and laches does not apply to prevent the Board from sanctioning Smith.
Further, the sanction the Board chose is within the statutory penalties allowed by law. Therefore,
the Final Order of the Board of Examiners for the Licensure of Professional Counselors, Associate
Counselors, and Marital and Family Therapists of September 28, 1997 is hereby AFFIRMED.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
May 4, 1998
Columbia, South Carolina
1. The deposition of Smith is of course another basis of fact to which the Board gave
consideration. The deposition is addressed subsequently. |
