ORDERS:
ORDER
This matter is before the Administrative Law Judge Division pursuant to the appeal of Michael Antonio: Addison, D.C.
(Appellant), from the order of the Respondent, South Carolina Department of Labor, Licensing, and Regulation, State Board
of Chiropractic Examiners (Board), dated November 20, 1998, which suspended Appellant's license to practice chiropractic,
imposed certain requirements as a condition of relicensure, and assessed a fine. A hearing on the appeal was held at the
offices of the Administrative Law Judge Division in Columbia, South Carolina, on September 27, 1999. For the following
reasons, the decision of the Board is vacated and this case is remanded to the Board to conduct another contested case
hearing in accordance with this opinion.
STATEMENT OF THE CASE
The Board filed a formal complaint on May 14, 1998, charging the Appellant, Michael Antonio: Addison, D.C., with several
violations of the South Carolina Board Regulation of Professions and Occupations Act, S. C.Code Ann. §40-1-10 et seq.
(Supp. 1997), the South Carolina Chiropractic Practice Act, S.C. Code Ann. §40-9-10 et seq. (1986 and Supp. 1997), and
the Rules and Regulations of the South Carolina Board of Chiropractic Examiners, 23A S.C. Code Ann.Regs. 25-1., et seq.
(Supp. 1997). A hearing was held before a Hearing Examiner, Dr. Henry W. Hulteen, on August 6, 1998.
The Hearing Examiner determined that Appellant used a false statement in connection with the Board's licensing
requirements by failing to inform the Board of his arrest for willful failure to file a South Carolina income tax return on his
renewal application, and that Appellant intentionally failed to inform the Board of his subsequent conviction for that offense,
a Class C misdemeanor. The Hearing Examiner determined the false statement violated S.C. Code Ann. § 40-9-90(1)(1986)
and constituted the following violations of the Regulations of the Board: (1) unprofessional conduct in the practice of
chiropractic (23A S.C. Code Ann. Regs. 25-5.A(4) (Supp. 1997)), and (2) failure to be guided by the highest standards of
moral conduct required of the Board's Code of Ethics (23A S.C. Code Ann. Regs. 25-6.A (Supp. 1997)). The Hearing
Examiner also concluded Appellant's conduct violated 23A S.C. Code Ann. Regs. 25-5.A(7) (Supp. 1997) in that Appellant
had been convicted of a misdemeanor. Finally, the Hearing Examiner determined the conduct violated the code of ethics and
certain Regulations of the Board in violation of S.C. Code Ann. §40-9-90(6) (Supp. 1997). The Hearing Examiner
recommended that Appellant be suspended from the practice of chiropractic until completion of his term of imprisonment,
plus thirty days. The Hearing Examiner also recommended civil penalties totaling $3,000.00 for the violations and ordered
Appellant to pay the costs of investigation and prosecution of the matter in the amount of $777.00.
On November 5, 1998, a hearing to consider and act upon the report of the Hearing Examiner was held. After Board
member Hulteen recused himself, the Board voted to amend the report to require Appellant to take and pass the Special
Purposes Exam for Chiropractic as a condition for relicensing. The Board voted to adopt the Hearing Examiner's
conclusions as amended. On November 20, 1998, the Board's Final Order was issued, and this appeal followed.
DISCUSSION
I. Issues On Appeal
1. Was there an unconstitutional commingling of the prosecutorial and adjudicatory functions, and, if so, was it harmless
error?
2. Did the Board apply the proper standard of proof?
3. Is the Board's finding that Appellant intentionally failed to notify the Board of his arrest and subsequent conviction of a
Class C misdemeanor supported by substantial evidence?
4. Was the sanction by the Board arbitrary and capricious?
5. Did the Board err in failing to rule on Appellant's Motion to Dismiss?
II. Jurisdiction and Standard of Review
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 and 40-9-31 (Supp. 1998). The provisions of the South Carolina Administrative Procedures Act (APA) govern an appeal from a final
order of the Board. Under the APA, the Division may reverse or modify the decision of the Board if substantial rights of the
appellant have been prejudiced because the administrative findings are, inter alia, in violation of constitutional or statutory
provisions; made upon unlawful procedure; or affected by other error of law. S.C. Code Ann. § 1-23-380(A)(6)(a), (c), and
(d) (Supp. 1998).
III. Analysis
A. Appellant's Procedural Arguments
1. Commingling of Prosecutorial and Adjudicatory Functions
Appellant claims that the investigation and prosecution of his disciplinary hearing violated his due process rights under
Article I, Section 22, of the Constitution of the State of South Carolina because of the roles played by Alana Holmes (the
Board Administrator), the Investigative Review Committee ("IRC"), and Dr. Henry W. Hulteen. The Board disagrees.
By statute, the results of all investigations by the Department of Labor, Licensing and Regulation must be presented to the
relevant board. In the present case, the relevant board is the Board of Chiropractic Examiners. The results of all
investigations are reported to the Board whether the agency feels the underlying complaints are founded or not. If the
results of the investigation
appear to establish violations of the relevant practice act, the Board may initiate disciplinary proceedings. S.C. Code Ann. §
40-1-90(a) (Supp. 1998).
In complying with the statute, most professional licensing boards utilize an Investigative Review Committee (the IRC) to
shield against tainting the board with ex parte information about the investigation. For the Board of Chiropractic Examiners,
the IRC consists of the Board Administrator, the investigator, the prosecutor, and a Board member who is also a
practitioner. Where possible, the Board representative selected is a resident of a different congressional district than that of
the licensee's residence. The purpose of the IRC is to make an initial determination of basic evidentiary sufficiency
warranting a formal complaint. Based upon this initial determination, the IRC then recommends a course of action to the
Board. See Brief of Respondent at 5.
The IRC Board representative provides advice on technical professional questions and represents the Board's interest in a
determination of the recommended resolution. The investigation results subsequently reported to the Board are limited to the
investigation number, a brief summary of the suspected violations, and the IRC's recommendation. The identity of the
licensee is not included in this presentation. The IRC Board representative later recuses himself for subsequent proceedings.
Id.
In this case, an Investigative Review Committee reviewed the alleged conduct of Appellant prior to the issuance of the
formal complaint. A formal complaint was issued and a disciplinary proceeding was held. The evidentiary hearing on the
formal complaint was heard before Dr. Henry W. Hulteen. Dr. Hulteen issued his report and recommended suspension of
Appellant's license until completion of his sentence for the conviction of a Class C misdemeanor, plus thirty days. The
matter then went before the full Board for oral argument and final order. In this case, eight board members were present at
the final order hearing. The IRC board member, Dr. Johnson, was present and did not recuse himself on the record from
voting or deliberating in executive session. Dr. Hulteen did recuse himself from voting but did not recuse himself from the
deliberations. As a result, a Final Order was issued adopting the recommendations of Dr. Hulteen and amending the
recommendation requiring Appellant to take and pass the SPEC (Special Purposes Examination for Chiropractic) as a
condition of reinstatement.
In an administrative dispute, a party shall not be subject to the same person for both prosecution and adjudication. S.C.
Const. Art. I, Sec. 22. A party is subject to the same person for prosecution and adjudication if an agency official first
investigates the alleged wrongdoing and then that same official acts as a judge in determining whether the wrongdoing has
been proved. See Ross v. Medical Univ. of South Carolina, 328 S.C. 51, 70, 492 S.E.2d 62, 72 (1997) (where a vice-president of a university investigated the alleged wrongdoing of a professor and then sat as a judge who found the
wrongdoing was proven); Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48
(1998) (where an insurance agent's rights under Art. I, Sec. 22 were violated since members of the Governing Board first sat
as investigators and then subsequently sat as adjudicators revoking the agent's designated status). The purpose of Art. I,
Sec. 22 is to "ensure adjudications are conducted by impartial administrative bodies." Ross, 492 S.E.2d at 72. Partiality
exists where an adjudicator has acquired ex parte information about a matter through prior investigation or has developed a
"will to win" by prior involvement in the case. Id. Article I, Section 22 is further violated by situations where an "inherently
flawed structure of the investigative and prosecutorial processes . . . place[s] future adjudicators in situations where they
[have] the opportunity to form . . . premature opinions." Garris, 511 S.E.2d at 48.
The United States Supreme Court has held that the combination of investigatory or prosecutorial and adjudicatory functions
in an administrative agency is not, in and of itself, a denial of procedural due process rights. Withrow v. Larkin, 421 U.S.
35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Nor does the Administrative Procedures Act prohibit agency personnel engaged
in prosecution or investigatory functions from participating in an adjudication to the extent that they are acting as counsel in
such a proceeding. See Jacob A. Stein, et al., 4 Administrative Law § 33.02(4) (1995). Moreover, agency officials or
members who adjudicate a matter are presumed to be honest, fair and unbiased. A party contesting the alliance of
investigative and adjudicative functions must persuade the court that, under a realistic assessment of psychological
tendencies and human weakness, according both functions on the same persons poses such a risk that it is likely to violate
due process. Withrow v. Larkin, supra.
The South Carolina Supreme Court, in interpreting Article I, Sec. 22 of the South Carolina Constitution, has gone beyond
the federal due process analysis set forth in Withrow, supra, and has placed an absolute prohibition on the commingling of
prosecutorial and adjudicative functions. In Garris, supra, the Court noted that, "under a realistic appraisal of psychological
tendencies and human weakness," board members who participate in the investigation or prosecution of a case may not
participate as adjudicators in any subsequent disciplinary hearing without violating Article I, Sec. 22. "Members who
participate in the investigation of a case must distance themselves from the adjudicatory process and should refrain from even
discussing that case with future adjudicators." Garris, 511 S.E.2d at 55. Even if such a violation is found, however, the
question remains whether the commingling amounts to more than a harmless error. See, e.g., Ross v. Medical Univ. of
South Carolina, 328 S.C. 51, 492 S.E.2d 62 (S.C. 1997) ("while we do not condone Vice-President Newberry's
participation in this dual capacity, we find the error harmless.")
Thus, two elements must be established for Appellant to prevail on this issue. First, the evidence must demonstrate an
improper commingling of prosecutorial and adjudicatory functions. Second, the commingling must be more than a harmless
error. In the present case, the evidence of record establishes that the same person, Dr. Johnson, the IRC Board
representative, carried out both prosecutorial and adjudicatory functions. The commingling is seen in the activities of the IRC
and the activities of the Board in adjudicating the suspension of Appellant's license. Dr. Johnson was the same board
member who reviewed evidence leading to the decision to seek a formal complaint and also voted at the Board's November
5, 1998 hearing which resulted in the November 20, 1998, order suspending Appellant's license. Under the Supreme Court's
holding in Garris, supra, such conduct is absolutely forbidden.
The evidence also establishes that Dr. Hulteen served solely in the function of an adjudicator. Dr. Hulteen first served as the
Hearing Examiner at the evidentiary hearing held on August 6, 1998 and later as Chair for the Final Order hearing on
November 5, 1998. It is clear from Dr. Hulteen's Report from the August 6, 1998 evidentiary hearing, that he thought the
proper disciplinary action was suspension. While Dr. Hulteen did recuse himself from voting on the matter in executive
session, his failure to recuse himself from the Board's deliberations prior to the vote of the Board raises concerns over
whether the adjudicative process was impartial. The better course would have been for Dr. Hulteen to recuse himself from
both the deliberations and the voting to avoid any appearance of impropriety.
Appellant also complains of the participation of Board Administrator, Alana Holmes as an observer in unspecified committee
meetings. However, Ms. Holmes is not a member of the Board and therefore, does not qualify as an "adjudicator" whose
pre-hearing information might implicate due process concerns.
Under the facts of this case, it is clear that an improper commingling of prosecutorial and adjudicatory functions occurred
when a board member who had been exposed to the prosecutor's evidence prior to any adjudicatory hearing for Appellant
was then allowed to sit, participate and vote at the adjudicatory hearing.
Given the above facts, I conclude that Art. I, Sec. 22 was violated when a Board member who had been exposed to the
prosecutor's evidence prior to the adjudicatory hearing was then allowed to sit, participate and vote at that hearing.
Furthermore, the same Board member who authored the initial disciplinary recommendation also sat and deliberated as Chair
with the other Board members who then ratified the initial recommendation with additional conditions. The Board must
safeguard its members from being both prosecutors and adjudicators. Here the procedure for the prosecution of Appellant's
case created a violation of Art. I, Sec. 22 in that a Board member who served as an adjudicator was placed in a situation
"where [he] had the opportunity to form premature opinions." Garris, 511 S.E.2d at 48.
2. Harmless Error
The Board contends any error in the handling of Appellant's case was harmless error and provides no basis for reversing the
Board's decision.
Under the facts of this case, the Board, consisting of eight members, acted as the final adjudicators. One member, Dr.
Johnson, participated in the investigation and prosecution of Appellant and later sat as a voting Board member at the final
hearing. Another member, Dr. Hulteen, participated as the Hearing Examiner at the evidentiary hearing and authored the
initial recommendation to suspend Appellant's license. Dr. Hulteen later chaired the final hearing and recused himself before
voting but after discussions were held with the remaining Board members. These two persons sat in judgment of Appellant
and cast one of the eight votes to suspend his license. The Board argues that Dr. Johnson's failure to recuse himself was not
standard practice. However, the fact that Dr. Johnson deviated from standard practice cannot excuse a due process
violation.
Under the circumstances outlined above, I find that the structure of this proceeding was so inherently flawed that it is not
subject to harmless error analysis. Garris, 511 S.E.2d at 56 (citing Arizona v. Fulminate, 499 U.S. 279, 307-09, 111 S.Ct.
1246, 1263-64, 113 L.E.2d 302, 329-31 (1991) (dividing constitutional errors into "trial error" and "structural defects," with
the later defying analysis by harmless error standards because they affect the framework within which a trial proceeds, rather
than simply an error in the trial itself). Accordingly, the Appellant was denied procedural due process in the adjudication of
his case, and the Board's decision must be vacated.
ORDER
IT IS THEREFORE ORDERED that the Board's decision to suspend the license of Appellant is hereby vacated, and this
matter is hereby remanded to the Board to conduct a contested case hearing in accordance with this opinion. Because I have
ruled in favor of the Appellant on constitutional grounds, it is unnecessary to address the remaining issues raised by
Appellant in his brief.
AND IT IS SO ORDERED.
____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
February 14, 2000
Columbia, South Carolina.
|