SPRI NG 2 0 0 9 MAI NE BAR J OURNAL C1

MAINE
BAR
THE QUARTERLY PUBLICATION OF THE MAINE STATE BAR ASSOCIATION
V O L U M E 2 4 N U M B E R 2 S P R I N G 2 0 0 9
Ethics and Metadata:
The pitfalls of digging
too deeply
World Wide Web or Wild, Wild
West: Why basic rules have not
tamed cyberspace
Double Secret: The unique
confdentiality of substance abuse
medical records
Beyond the Law:
Frank Coffn, sculptor
Kangaroo Courts? Time to
reexamine Maines Administrative
Procedures Act
1 0 8 ma I N e b a R j o u R N a l S P R I N G 2 0 0 9
It is time to re-examine Maines
Administrative Procedures Act
I
n 1977 the Legislature enacted the Maine Administrative Procedure Act.
5 M.R.S.A. 800111008 (the APA). Te APA was a comprehensive codifcation
of the rules governing state agency rulemaking, licensing, adjudication, and the
standards and procedure for judicial review. Among the most important provisions in
the APA as frst enacted was the separation of the administrative functions of investiga-
tion and adjudication in licensing board disciplinary proceedings. Under the original
APA, agencies were entitled to investigate complaints against regulated persons or enti-
ties and initiate disciplinary actions if warranted.
However, all adjudicatory responsibilities were delegated
exclusively to the independent Administrative Court. Regret-
tably, since 1977 that original structure of the APA has been
entirely undone. Te Administrative Court has been abolished
and agencies have now resumed the pre-APA combined roles of
investigator, prosecutor, grand jury, and trial jury. Tis article
argues that we need to re-examine these changes to the APA
and install new due process safeguards.
Before 1961, the rules governing the operation of state
administrative agencies were a confusing hodge-podge of
statutory and judicially created standards. In an initial efort
to provide some measure of uniformity, the Legislature that
year adopted the so-called Administrative Code.
1
While the
Administrative Code represented an attempt to improve the
consistency of agency rule making and adjudicative func-
tioning, the Code on the whole was poorly drafted and left
many issues unaddressed.
2
One problem was that the Code
applied to only twenty-seven named agencies, leaving many
others in a procedural limbo.
In addition, and notwithstanding the enactment of the
Code, the procedures by which the agencies did their busi-
ness remained disorganized, inconsistent, and arbitrary. Te
procedure for agency rulemaking remained haphazard, with
public notice of proposed rulemaking action usually non-
existent. Once agencies adopted rules, they could often not be
easily located even by those afected by them. Administrative
agency hearings were most often undertaken pursuant to ad
hoc rules of procedure, and often violated fundamental due
by john m. R. Paterson
Kangaroo
courts?
S P R I N G 2 0 0 9 ma I N e b a R j o u R N a l 1 0 9
process principles. Further, the Code contained no compre-
hensive and uniform procedure governing judicial review of
agency rulemaking or adjudications. Tis lack of clarity in the
appellate process was further exacerbated by an incomplete,
inconsistent, and confusing set of standards enunciated by the
Law Court under the then-existing version of Rule 80B of the
Rules of Civil Procedure.
3

Recognizing the Codes inadequacies, in 1976 the Ofce
of the Attorney General, under then-Attorney General Joseph
Brennan, in collaboration with the Administrative Law
Section of the Maine State Bar Association, undertook a
year-long project to comprehensively revise Maines statutory
administrative procedures.
4
Draft legislation
was presented to the Legislature in 1977 along
with a comprehensive explanatory report
describing the need for the Act and the intent
of each of its various sections. Te proposed
law was modeled on the then-current version
of the Model Administrative Procedure Act,
the federal Administrative Procedure Act, and
portions of similar laws in other states. Te
explanatory report itself was unique, especially
for legislation crafted at a time before the exis-
tence of legislative committee staf.
Te draft act received a warm reception
from the State Government Committee and
was enacted into law that same year.
5
Te Act,
codifed at 5 M.R.S.A. 800111008, replaced
the old Code and set out a comprehensive and
uniform mechanism for the adoption of agency
rules, basic standards for the conduct of agency
hearings, both with respect to the issuance of licenses and
permits of various kinds and in disciplinary actions, and
established a uniform procedure for judicial review of agency
rulemaking and adjudications. Tere is no doubt that the
Act represented an enormous improvement in the manner in
which state agencies did their public business.
Prior to enactment of the APA, administrative agencies
often conducted disciplinary hearings with little regard for
fundamental notions of due process.
6
It was commonplace
for professional and occupational licensing boards, when
pursing a disciplinary matter, to act as investigator, grand jury,
prosecutor, judge, and jury. Such boards made no attempt to
separate those functions among diferent members or staf of
the agency or to screen one function from another. Te orig-
inal 1977 version of the APA changed all that. To that end,
the APA expanded the jurisdiction of the then-Administrative
Court. Although the Administrative Court already existed,
up to that time it had acted largely as an appellate court and
heard few cases of any kind. Te 1977 APA divested profes-
sional licensing boards of the power to exercise the multiple
functions of investigation, prosecution, judging and meting
out discipline (i.e., imposing fnes, suspensions, revocations, or
other disciplinary action). Instead, the Act provided that while
an agency could investigate complaints and decide whether
or not to commence a disciplinary proceeding, the agencys
complaint had to be tried before and decided
by the Administrative Court. Te Administra-
tive Court was vested with exclusive authority
to adjudicate agency disciplinary actions. By any
measure, this was a remarkable reform in the
operation of Maine state agencies.
Unfortunately, in the years since the enact-
ment of the APA in 1977, this singular reform
has now been entirely undone. In a series
of amendments beginning almost immediately
after passage of the APA, the Legislature began
to whittle away that law, presumably at the
behest of the agencies, by adding wholesale
exceptions to the Administrative Courts exclu-
sive jurisdiction. As a result, by 1989, this
original and essential jurisdictional mandate of
the APA had been completely emasculated.
Te main benefciaries of this change to the
APA have been Maines professional and occupa-
tional licensing boards and agencies. Under 10051(1) of the APA,
virtually all the professional and occupational licensing agen-
cies of the state are now exempt from the requirement that their
enforcement actions proceed in Court. Te various licensing
boards and agencies within the Department of Professional
and Financial Regulationthe department which encompasses
all the professional and occupational licensing agencies in the
statenow have disciplinary authority that is concurrent with
that of the court. No longer is it required that agency enforce-
ment actions be brought to the District Court.
7
As a result, the
original reform envisioned by the APA has been erased.
Since this legislative reversal of course, there has unfortu-
nately been no comprehensive reassessment of the consequences.
As far as is known, no study has been done to systematically
gather data on administrative practices. However, based on
extensive anecdotal evidence, the following is a brief descrip-
tion of how most agencies now operate.
john m.R. Paterson is trial attorney at bernstein Shur in Portland,
maine. His practice concentrates on civil business litigation, as well
as the representation of licensed professionals before a variety of
state professional and occupational licensing boards.
The Legislature
began to whittle
away the law,
presumably at
the behest of
the agencies, by
adding wholesale
exceptons to the
Administrative
Courts exclusive
jurisdiction.
1 1 0 ma I N e b a R j o u R N a l S P R I N G 2 0 0 9
Upon receipt of a complaint against a licensee, the state
agency or board will typically undertake to investigate the
charges. For those boards that have a staf, the investiga-
tive function is delegated to a staf person. For the agencies
without an investigator, the agency designates one of its board
members to act as the investigating or complaint ofcer.
Usually, the only contact with the licensee is a letter from
the complaint ofcer to the licensee requesting a written
response to the complaint. Te extent to which a complaint
ofcer gathers information and data from third partiesthat
is, from persons other than the complainant
and licenseevaries widely, and depends on the
professional experience of the investigator. Rarely
does the complaint ofcer actually interview the
licensee, although it is not uncommon to inter-
view the consumer complainant. Te complaint
ofcer will gather such information as he or she
thinks necessary, but rarely does he or she share
that additional information with the licensee to
get the licensees full perspective on the matter.
And it is usually even rarer that the investi-
gator will attempt to gather independent facts
through witness interviews or examination of
third-party documents to test the accuracy or
reliability of statements of either the complainant
or licensee. More importantly, such independent
fact-gathering, regardless of its extent, is almost
never disclosed to the licensee at the investi-
gative stage in order to aford the licensee an
opportunity to respond.
Armed with the results of that investigation,
the complaint ofcer meets with the board, of
which he may even be a member, to review the results. Te
boards assigned attorney, normally an assistant attorney
general, is ordinarily present. Te licensee may bebut some-
times is notinformed of the meeting. However, even if the
licensee is informed and attends the meeting, the licensee is
not entitled to speak. Te board confers with the investigating
staf or board complaint ofcer and the assistant attorney
general to determine whether to proceed with a disciplinary
action. Although it depends on the individual style of the
particular board attorney, it is not unusual for the boards
attorney, along with the complaint ofcer, to advocate for or
encourage the board to act one way or another, e.g., either to
dismiss the complaint or to initiate an enforcement action. In
this regard there is no uniformity of practice among board
attorneys.
In essence, during the complaint presentation, the board
acts like a grand jury, deciding by majority vote on the basis
of the investigation presented to it whether there is a sufcient
basis to believe that disciplinary action against a licensee is
warranted. Te licensee is not entitled to address the board at
this stage to attempt to persuade it to not issue a complaint,
but must sit mute while his or her fate is decided.
As part of this ex parte process, it is not unusual for some
boards to simultaneously vote on the terms of a
proposed consent agreement to be presented
to the licensee. Te board may discuss and
vote on certain terms of the consent agreement,
including designating the rule or law allegedly
violated and the kind of discipline, sanctions,
fne, or other conditions to be imposed on the
licensee.
8
Following this grand jury-like process, the
boards attorney drafts a complaint or consent
agreement, or both, and serves them on the
licensee. Te complaint will usually contain
a general statement of the statute or rule that
the licensee is alleged to have violated and
will contain a notice of a hearing date. Often,
however, the complaint will not contain a state-
ment of the specifc factual allegations that
constitute the alleged misconduct. Normally the
complaint will notify the licensee of a pre-set
hearing date, which is rarely more than thirty
to sixty days following the date of the complaint
notice. Te hearing date is set without prior
consultation with or regard for any scheduling difculties it
may present for the licensee or the licensees attorney. In the
event that only a proposed consent agreement is served, the
letter of transmittal will contain an explicit warning that an
adjudicatory hearing will be scheduled if the licensee does not
accept the consent agreement.
Such simultaneous service of a complaint and consent
agreement immediately puts the licensee on the horns of a
dilemma. If the licensee enters into settlement negotiations,
but those negotiations prove unsuccessful, the licensee then
has to face at a hearing the very same board that tendered the
proposed settlement terms. Te licensee is placed in an impos-
sible situation: either settle with the board or face it as a jury,
If the licensee
enters into
settlement
negotiations, but
those negotiations
prove unsuccessful,
the licensee then
has to face at
a hearing the
very same board
that tendered
the proposed
settlement terms.
S P R I N G 2 0 0 9 ma I N e b a R j o u R N a l 1 1 1
knowing that the jury will likely think the licensee was unrea-
sonable for not having accepted a settlement before the hearing.
Nothing like this happens in any other adjudicatory setting. It
is a little like the accused being ofered a plea bargain by the
trial jury based only on what the jury heard from the pros-
ecutor before the trial begins. And it surely raises questions as
to whether the fnder of fact can thereafter be impartial.
If a licensee does not accept the ofered consent agreement,
or other terms cannot be agreed upon, the board proceeds with
an adjudicatory hearing. Once the matter moves into the adju-
dicatory hearing phase, the same board that acted as a grand
jury becomes the petite jury to judge whether the licensee did
in fact commit the violations. In other words, the board that
decided that there was sufcient evidence to believe a violation
occurred is the same board that will decide if those violations
actually did occur. By way of analogy, this switching of roles by
the board is akin to a grand jury in a court proceeding, having
met privately with the prosecutor and police investigators, and
having returned an indictment, then being converted into the
trial jury to hear evidence presented by the very prosecutor with
which the jury met as part of its private grand
jury inquiry. In reality, the boardhaving previ-
ously decided to issue a complaint to start the
proceedingis usually primed to fnd a violation.
Similarly, the assistant attorney general
assigned to the board as the boards attorney
takes on the role of prosecutor before the very
board to which he previously acted as legal
counsel. Tus the same lawyer on whom the
board relies for everyday legal advice, practical
guidance and often institutional memory is the
same lawyer who present the case to his client
board to persuade the board to fnd that the
licensee has violated an ethical standard, law,
or a board regulation. Tis special relation-
ship between the prosecutor and the jury
plainly puts the licensee in a decided disadvan-
tage during the hearing. Human nature being what it is, most
boards are naturally more inclined to be persuaded by an argu-
ment from their own lawyer than by the licensees lawyers.
While it is sometimes possible to persuade a board to change
its mind, the accused licensee nonetheless enters the proceed-
ings before a board that has already found probable cause to
believe that the licensee committed the ofense of which he or
she is accused.
Before the hearing there is limited opportunity for the
licensee to learn the details of the evidence in support of the
complaint. Neither the APA nor the rules of any of the boards
provide a mechanism for the licensee to have the beneft of any
discovery. While most of the board prosecutors will volun-
tarily provide a list of witnesses and exhibits they intend to
use, this is not always the case. Moreover, even when a witness
list is supplied, there is no sure way to fnd out in advance of
the hearing what any of the board witnesses will say. Requests
for depositions of board witnesses are routinely denied. So
the licensee has to enter the hearing essentially fying blind.
Unlike the board, which may have taken months to gather
evidence, the licensee usually has only thirty to sixty days to
prepare, and has to do so with only the most limited knowledge
of the claims and evidence that he or she will have to rebut.
At the hearing, the board will often hear testimony from its
staf member or the investigating board member. Sometimes,
a board member may even testify as an expert. If the investiga-
tion was conducted by a board member, or if a board member
testifes at the hearing, that member will recuse himself
from any deliberations, but in a battle of cred-
ibility, the testifying board member usually wins.
When faced across the hearing table by a board
member colleague or staf member with whom
the board has a regular collegial working rela-
tionship, and with that board member or staf
person testifying as fact or expert witness, it is
the rare board indeed that fnds their colleague
to be less credible than the accused licensee.
At the hearing itself, judicial rules of evidence
do not apply. Te APA expressly provides that:
Evidence may be admitted if it is the kind of
evidence upon which reasonable persons are accus-
tomed to rely in the conduct of serious afairs.
Agencies may exclude irrelevant or unduly repeti-
tious evidence. 5 M.R.S.A. 9057(2). On its face,
this language would seem to require the hearing
ofcer to make a threshold determination of whether the partic-
ular piece of evidence is the kind of evidence that serious people
would rely on in the conduct of serious afairs (e.g., would a
serious person decide whether to make a serious decision in his
or her life based on unreliable information). But in practice, that
statutory requirement is customarily applied in such a way that
almost any evidence tendered at a hearing is admitted, including
wide-ranging hearsay and double-hearsay from sources such as
The board that
decided that there
was suffcient
evidence to
believe a violation
occurred is the
same board that
will decide if those
violations actually
did occur.
1 1 2 ma I N e b a R j o u R N a l S P R I N G 2 0 0 9
newspaper articles, unauthenticated information on websites,
unauthenticated letters and e-mails, and oral statements from
persons who are themselves not present to testify.
Although most board hearings are presided over by a
so-called hearing ofcer who makes rulings on procedural
issues that arise in a hearing before the board, as a practical
matter this provides little protection for the rights of the licensee.
Most boards are routinely served by the same hearing ofcer,
sometimes a state employee but often an attorney
in private practice who is paid by the agency or
the Department of Professional and Financial
Regulation. In some cases, the hearing ofcer
may even be another assistant attorney general.
Because the hearing ofcers tend to regu-
larly advise the same boards, an outside observer
might fairly question whether such hearing of-
cers lack true independence or whether they
defer to their client board. Human nature being
what it is, one might also fairly ask whether
such hearing ofcers have an incentive, either
economic or based on longer standing personal
or professional relationships, not to make
evidentiary or procedural rulings that might
displease their client agencies. In any event, and
whatever the reason, long observation of the process cannot
help but lead to the conclusion that the typical relationship of
the hearing ofcer to the client board is not one of arms-length
independence.
As a result, counsels objections to any of the foregoing
procedures on the basis of due process considerations are
routinely denied by the hearing ofcers.
9
Indeed, it is not
unusual for lawyers about to defend a case before the board to
be warned by the hearing ofcer in the pre-hearing conference
to be careful about challenging the board too much and to be
reminded that the lawyer is not in a court of law and that the
lawyer should not be too aggressive.
10
While it is true that a licensee can appeal any adverse action
by a board, as a practical matter this is a hollow option. In
its original formulation, an adverse decision from the then-
Administrative Court could be appealed to the Superior
Court. But with the change in the APA as set out above, the
appellate remedies were also altered. Even more confusingly,
the current appellate rights are now found not in the text of
the APA, but rather in the statutes governing the Department
of Professional and Financial Regulation.
And to make it more confusing, the nature of the appel-
late right depends on the type of action taken by the board.
If the board acts to revoke a license, the licensee may appeal
to the District Court and obtain a trial de novo. 10 M.R.S.A.
8003(5)(G) and (5-A)(G).
11
If, however, the disciplinary
action is anything short of revocation, including, for example,
a lengthy suspension or the imposition of a fne, the appeal
is to the Superior Court and, except for very limited circum-
stances, is limited to an appeal on the record. 5
M.R.S.A. 11005. Under the APA, the Supe-
rior Court must sustain the fndings of the fact
made by the board if there are any facts in the
record on which the board could have reason-
ably relied, even if the Superior Court would
itself have not reached the same conclusion. 5
M.R.S.A. 11007(4)(C)(5).
Tus, except in the case of license revocations,
it is impossible for the accused licensee to have
the facts decided by an impartial fact fnder. Te
reasons for this disparate appellate treatment
of license suspensions and revocations are not
stated in the statute or legislative history.
Frankly, the distinction is not rational or fair.
As a practical matter, fnes can be large, and
extended suspensions from employment can be devastating
and end a professional career just as surely as a license revoca-
tion.
12
Why the statutes make such a distinction is a mystery.
Finally, since enactment of the APA in 1977, the role of the
attorney general has been altered in a way never contemplated
by the original APA. Under Title 4 M.R.S.A. 152(9) the
attorney general has independent authority to initiate a license
disciplinary proceeding in the District Court if the licensing
agency fails or refuses to act within a reasonable time. If the
attorney general, having met with the agency in an ex parte
grand jury-style proceeding, disagrees with an agencys deci-
sion not to initiate disciplinary action, the attorney general
may nonetheless fle such an action on her own without regard
to the agencys decision.
Even more remarkably, no professional or occupational
licensing board may execute an administrative consent decree
without the agreement of the attorney general. 10 M.R.S.A.
8003(5)(B) and (5-A)(C). Similarly, with respect to consent
agreements, the attorney general has independent enforcement
authority. Id. Tus, even if an agency thinks a proposed settle-
ment of a pending administrative action is satisfactory, the
Fines can be large,
and extended
suspensions from
employment can
be devastating and
end a professional
career just as
surely as a license
revocation.
S P R I N G 2 0 0 9 ma I N e b a R j o u R N a l 1 1 3
attorney general may veto it. And such a consent agreement,
once entered, may not be modifed by the agency or board
without the consent of the attorney general. Id. As a result of
all this, the attorney general efectively has authority identical
to that of the professional and occupational licensing boards,
and for disciplinary purposes can act as a de facto licensing
board. None of this was in the original APA.
For whatever reason, none of the procedural concerns raised
here have been addressed by the Maine courts. It may well
be that as a practical matter the costs of appeal are simply
too daunting, especially a trial de novo in the District Court.
Further, an appeal on the record from a suspen-
sion only gets the successful appellant a new
administrative trial before the same judge and
jury. Te reality is that the overwhelming number
of such enforcement actions are, not surprisingly,
resolved through a consent agreement.
It must be acknowledged that some of these
practices would probably pass constitutional
musterassuming, of course, that the Maine Law
Court follows existing case law. Te combining
of investigative and fact-fnding functions as
described above has almost uniformly been held to
meet the test of constitutional due process. See, e.g.,
Withrow v. Larkin, 421 U.S. 35 (1975).
13
Although
it is conceivable that the Law Court might chart
a diferent course by holding such combining of
functions to be inconsistent with the due-process
provisions of the Maine Constitution, it would be
a brave court indeed that would do so in light of
the substantial body of jurisprudence on this issue
from other jurisdictions, and in the face of a virtu-
ally uniform practice by all Maine boards.
Te issue with respect to the admissibility
of hearsay in such proceedings is more muddy.
Some federal courts have held that hearsay is
admissible and may form the basis, without
more, for an agency decision to impose disci-
plinary sanctions.
14
On the other hand, other
federal courts have held that consideration of
hearsay in an administrative proceeding constitutes a denial
of due process.
15

Regardless of whether these practices pass constitutional
muster, fundamental public policy issues remain. Are these
practices ones which we believe satisfy our fundamental notions
of fair play? Clearly, we do not accept anything like the fore-
going in civil or criminal court. Te prosecution of a simple
speeding ticket, which might result in at most a fne of a few
hundred dollars, will entail greater due process protection than
does a proceeding to revoke a license to practice a profession or
occupation or to impose a fne that could total in the thousands
of dollars.
16
Te stakes in administrative disciplinary actions
often carry the potential for occupational capital punishment,
since a serious administrative sanctioneven a sanction less
than license revocationmay mean the end of a career.
It is also particularly instructive to compare the above-described
system of professional discipline to that applied to
lawyers through the Maine Bar Rules. Unlike the
system applied to other professionals and occu-
pations, that the Maine Law Court has crafted a
system of professional discipline for lawyers that
incorporates rigorous standards of procedural due
process. Under the system of professional disci-
pline set forth in Rule 7 of the Maine Bar Rules,
there is scrupulous separation of functions between
those panels that act as grand juries and those that
act as fnders of fact. No members of the Grievance
Commission assigned to a case may serve in both
capacities. Any disciplinary action more serious
than a public reprimand requires a hearing before a
single justice of the Law Court applying the Rules
of Civil Procedure and the Rules of Evidence. Me.
Bar Rule 7.2.
Indeed, even in the case of a reprimand, the
lawyer is entitled as a matter of right to demand
a full evidentiary hearing. Id. An outside observer
might fnd it ironic at best, and hypocritical at
worst, that the legal profession is able to craft
for itself a system of discipline that provides full
due process protections to its members but then
argues against the application of such procedures
to other licensed professionals.
Tere is no doubt that the boards, the assis-
tant attorneys general, and the hearing ofcers
take very seriously the fact that their decisions
have a signifcant impact on a licensees life. Te motives of the
playersto protect the publicare undoubtedly well inten-
tioned. Tere is also probably little doubt that the vast majority
of board actions are justifed and just. Tere is, however, absolute
certainty that the path to fnal resolution of disciplinary actions
The prosecution of
a simple speeding
ticket, which might
result in at a most
a fne of a few
hundred dollars,
will entail greater
due process than
does a proceeding
to revoke a license
to practice a
profession or
occupation or
to impose a fne
that could total in
the thousands of
dollars.
1 1 4 ma I N e b a R j o u R N a l S P R I N G 2 0 0 9
is fraught with due-process peril that can lead to true unfairness,
if not complete injustice.
Despite the foregoing, and notwithstanding the brief inter-
lude from 1977 to 1989 when exclusive jurisdiction was vested
in the Administrative Court, the Maine legal system has
judged the fairness of administrative proceed-
ings by a diferent standard. We have done so
because we indulge in a number of legal fctions:
that a professional expert board can remain
objective in deciding the validity of the very
charges it has lodged against the licensee; that a
panel of experts in the particular profession or
occupation is better suited to mete out discipline
than judges who are mere generalists; that the
ongoing relationship between the prosecutor
and his client board will not afect the outcome
of the proceeding; that the relationship between
the board as jury and its own testifying members
and staf will not infuence a boards ability to
objectively assess credibility; and that an expert
board can properly distinguish between properly
admissible testimony and hearsay and give each
its proper weight. In the real world, of course, we
know these propositions are simply not true.
With respect to standards of evidence, it may
well be that admissibility of hearsay in initial
licensing hearings or hearings on permitting
matters such as before the Board of Environmental Protec-
tion, the Land Use Regulation Commission, or similar agencies
may make sense and satisfy our sense of fair play. In permitting
hearings before those bodies, the issues to be decided involve
considerations of public policy (e.g., whether a proposed devel-
opment constitutes an unreasonable alteration of the natural
environment or undue intrusion on scenic vistas) far more than
considerations of the credibility of evidence, as in cases of profes-
sional misconduct (e.g., whether the licensee engaged in specifc
conduct that violated a statute or rule). In the former, admitting
hearsay may well be appropriate. But in matters of career termi-
nation or suspension, admissibility of hearsay ought not to be
permissible. Regrettably, the original version of the APA failed to
make this distinction. Tat error ought to be corrected.
Reform would not be difcult. All that is needed is to
require that administrative disciplinary complaints must be
heard by the District Court pursuant to the Rules of Civil
Procedure and the Rules of Evidence. Such simple change
entails no additional cost to state government and would
instantly create a fair and balanced system of justice.
It is, of course, undeniably true that many persons who
are subjected to discipline by professional and occupational
boards have in fact committed an act that warrants an appro-
priate sanction. But that fact begs the question
of whether the underlying process is fair. Te
fact that most people who are accused of crimes
are found guilty, or plead guilty, does not mean
that we are therefore justifed in creating a
system of judicial justice that shortcuts funda-
mental due process. Indeed, we aford more
procedural protections in an action to enforce
a trafc infraction under Rule 80F, to enforce
a municipal land use ordinance violation under
Rule 80K, or for forcible entry and detainer
under Rule 80D, than we do in an administra-
tive proceeding that could terminate ones right
to pursue a profession.
A licensee is entitled to a fair unbiased
process. And perhaps equally important,
licensees are entitled to a system where disci-
plinary action is the result of a process that is
perceived to have been conducted in a fair
fashion, and not one resembling a kangaroo
court. Te regulatory mission of these agencies
is undeniably laudatorybut government,
acting through these various agencies, has an obligation to
dispense justice fairly, whatever the forum. We do it for our
own legal profession. We should aford the same fundamental
due process safeguards to other professions, as well.
1. Me. Public Laws 1961, ch. 394.
2. For a useful commentary on the shortcomings of the original
Administrative Code see Comment, Te Quest for Justice in Maine
Administrative Procedure: Te Administrative Code in Application
and Teory, 18 Me.L.Rev. 218 (1966).
3. In Re Maine Clean Fuels, 310 A.2d 736 (ME 1973); Frank v. Asses-
sors of Skowhegan, 329 A.2d 1974 (Me. 1974); Small v. Gartley, 363
A.2d 724 (Me. 1976); Gagne v. Lewiston Crushed Stone Company, 367
A.2d 613 (Me. 1976); Carlson v. Oliver, 372 A.2d 226 (Me. 1977); In
the Matter of Lappie, 377 A.2d 441 (Me. 1977); Gashgai v. Board of
Registration in Medicine, 390 A.2d 1080 (Me. 1978); Reed v. Halperin,
393 A.2d 160 (Me. 1978)
4. Te author was at the time deputy attorney general and was
responsible for developing and supervising the project.
5. Me. Public Laws 1977, chs. 551 and 694.
6. For an example of particularly egregious behavior by a
licensing board, see Gashgai v. Board of Registration in Medicine, 390
A.2d 1080 (Me. 1978)
7. In 1999, as a part of a general court reorganization, the Legisla-
ture abolished the Administrative Court and transferred its functions
Reform would not
be diffcult. All
that is needed is
to require that
administrative
disciplinary
complaints must
be heard by the
District Court
pursuant to the
Rules of Civil
Procedure and the
Rules of Evidence.
S P R I N G 2 0 0 9 ma I N e b a R j o u R N a l 1 1 5
to the District Court. Public Laws 1999, ch. 547. Te District Court
now has statutory jurisdiction of complaints to revoke or suspend
licenses issued by an agency. 4 M.R.S.A. 152 and 184.
8. Some agencies also issue letters of guidance advising the
licensee of his ethical or legal obligations and encouraging appro-
priate remedial action to ensure future compliance. 10 M.R.S.A.
8003(5-A)(F). Letters of guidance may be issued without afording
a hearing to the licensee. Although by statute they are deemed not
to constitute adverse disciplinary action, the letters may contain
factual statements and legal conclusions regarding the licensees
conduct. Te letters may be placed in a licensees fle for up to ten
years and are a public record. Te law is unclear as to whether such
letters constitute fnal agency action under 5 M.R.S.A. 11002
entitling the licensee to appeal.
9. It is also worth noting that the hearing itself is recorded by
means of a passive voice activated electronic recorder. No court
reporter takes the transcript. Unless the speaker identifes him/
herself, it may well be difcult to produce an accurate transcript,
since a later typed transcription of the recording may not accu-
rately identify the speaker. Further, if two people speak at the same
time, the transcription is often garbled. Tus, if the licensee wants
to ensure that an accurate transcript is prepared, the licensee must
provide and pay for a court reporter.
10. Te relationship among the prosecuting AAG, the Board
members, the testifying board staf or complaint ofcer and the
hearing ofcer are so close that it is not unusual for all of them to
share lunch or dinner during a break in an adjudicatory hearing,
while the licensee and his or her counsel must fend for themselves.
11. Te provisions of sub-sections (5) and (5-A) of 8003 are
largely overlapping and identical.
12. A board within the Department of Professional and Financial
Regulation board may impose a fne of up to $1,500 and enter an order
of suspension for up to 90 days for each violation. 10 M.R.S.A.
8003(5)(A-1)(2) and (5)(A-1)(3). For complaints with multiple viola-
tions, the potential suspensions and fnes can be signifcant. In
addition, for health care professionals, a license suspension will
result in a federal and state exclusion from participation in all federal
health care programs, like Medicare and Medicaid (MaineCare). In
Maine, such an exclusion efectively precludes any employment in
the health feld, even as a billing or fling clerk or receptionist, for at
least as long as the suspension lasts. Even if a board later reinstates
the licensee, reinstatement into the federal health care system is not
a foregone conclusion.
13. For a thorough discussion of whether an agency must separate
the functions of investigation and fact fnding in order to meet due
process requirements, see Pierce, Administrative Law Treatise, 9.8
and 9.9 (4th ed. 2002).
14. See, e.g., Peoples Mujahedin Organization v. Department of
State, 182 F.3d 17 (D.C.Cir. 1999); Johnson v. United States, 628 F.2d
187 (D.C. Cir. 1980; Felzcerek v. INS, 75 F.3d 112 (2d Cir. 1996);
Calvin v. Chater, 73 F.3d 87 (6th Cir. 1996): Bennett v. NTSB, 55 F.3d
495 (10th Cir. 1995); Gray v. Department of Agriculture, 39 F3d 670
(6th Cir. 1994 (upholding fnding of fact based entirely on hearsay
evidence); Crawford v. Department of Agriculture, 50 F.3d 46 (D.C.
Cir. 1995) (upholding fnding of fact based on hearsay evidence in an
administrative civil penalty hearing); Pascal v. United States, 543 F.2d
1284 (Ct.Cl.1976).
15. See for example Doty v. United States, 53 F.3d 1244 (Fed. Cir.
1995); Butera v. Apfel, 173 F.3d 1049 (7th Cir. 1999); Yancey v. Apfel,
145 F.3d 106 (2d Cir. 1998); Flatford v. Chater, 93 F.3d 1296 (6th Cir.
1996); Demenech v. Department of Health and Human Services, 913
F.2d 882 (11th Cir. 1990); Lidy v. Sullivan, 911 F.2d 1075 (5th Cir.
1990).
16. Although in some communities in Maine the police prosecute
their own speeding tickets, they do not act as legal advisor to the
judge who will decide the case. Further, they are subject to cross-
examination by the alleged speeder or his lawyer, as provided for
under the Maine Rules of Evidence.
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