Maryland Department of Agriculture v. Hammond

WOODWARD, J. This appeal arises from a Memorandum Opinion and Order issued by the Circuit Court for Baltimore County, reversing the Decision and Order of the Board of Review of the Department of Agriculture (“Board of Review”) in a disciplinary action against appellee, Kim Hammond, D.V.M. In its decision, the Board of Review affirmed an earlier decision of the Secretary of the Department of Agriculture (“Secretary”), which had affirmed a Decision and Order of the State Board of Veterinary Medical Examiners (“SBVME”) that appellee’s conduct towards a veterinary technician in his employ violated COMAR 15.14.01.04. The circuit court reversed the Board of Review’s decision on the grounds that the standard of review governing appellee’s appeal to the Board of Review was de novo, and therefore the Board of Review erred by basing its decision solely on a review of the record before the SBVME. Appellant, the Maryland Department of Agriculture, 1 presents two questions with three sub-parts for our review, which we have distilled into the following issues: ³⁴⁷ I. Whether the circuit court erred in ruling that the appeal to the Board of Review was de novo and that the Board should have conducted an independent reexamination of the case rather than a review of the record.

II

Whether the agency’s decision that appellee violated the standard of conduct articulated in COMAR 15.14.01.04 is lawful and supported by substantial evidence. Finding error on question I, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion. Because of our determination as to question I, we decline to address question II. FACTS AND PROCEEDINGS The Incident 2 Appellee owns and operates the Falls Road Animal Hospital (“FRAH”).

Shannon Gallagher worked at the FRAH as a technician and was employed in that position for a few months prior to the incident in question. Gallagher’s duties at FRAH involved rendering auxiliary or supporting veterinary assistance. She was a conscientious employee who enjoyed her job and co-workers. On July 11, 2000, appellee observed Gallagher inadvertently choking a cat that she was holding during an attempt to draw blood from the cat.

Appellee grabbed Gallagher’s hand, releasing the cat from her hold. Appellee was angered by the incident. Immediately thereafter, without requesting or obtaining Gallagher’s consent, appellee pressed two fingers against Gallagher’s trachea to show her how uncomfortable her hold had been on the cat. Although appellee did not compromise ³⁴⁸ Gallagher’s breathing, he did cause her to feel discomfort and anxiety.

After appellee released Gallagher, she left the treatment area. Gallagher was shaken, stunned, and scared by appellee’s actions. Shortly thereafter, and as a result of the incident with appellee, Gallagher resigned her position at the FRAH. The Charge On March 19, 2001, the SBVME notified appellee, in writing, that it had conducted an investigation of the July 11, 2000 incident involving Gallagher.

The SBVME advised appellee as follows: Enclosed please find a charge alleging that, in placing your hands upon a technician you employed in the manner described above, you did not conduct yourself in relation to the public, your colleagues, and the allied professions so as to merit their full confidence and respect, a violation of CO-MAR 15.14.01.04. The SBVME further notified appellee of the proposed sanction 3 accompanying the alleged violation, as well as appellee’s right to have a hearing on the charge or to waive a hearing and accept the proposed penalty. On August 21, 2001, appellee moved to dismiss the SBMVE’s complaint on the grounds that no authority existed in COMAR 15.14.01.04 or in any statute to support the charge brought against him. 4 ³⁴⁹ The SBVME’s Decision and Order On August 23, 2001, the SBVME held a contested case hearing in the disciplinary action filed against appellee. Appellee was represented by counsel and an Assistant Attorney General was “the presenter of evidence.” Testimony was taken from six witnesses, including Gallagher, appellee, and two eyewitnesses called by appellee.

Among the joint exhibits admitted into evidence were two reports of the SBVME’s investigator containing summaries of interviews with Gallagher, appellee, and one eyewitness. Following the hearing, the parties submitted proposed findings of fact and conclusions of law for the SBVME’s consideration. Thereafter, on November 20, 2001, the SBVME issued a Decision and Order pursuant to its authority to oversee the practice of veterinary medicine in the State under Maryland Code (1973, 1999 RepLVol.), sections 2-310 and 2-310.1 of the Agricultural Article, (hereinafter “Agrie. Art., § -”) The SBVME expressly found that Gallagher’s testimony regarding the incident was substantial and credible.

The SBVME summarized its findings of fact as follows: In summary, [appellee] intentionally applied pressure with his fingers to Ms. Gallagher’s trachea to show her how uncomfortable her hold had been [on the cat], and how it created anxiety. [Appellee] did not obtain Ms. Gallagher’s consent before touching her in this manner. [Appellee’s] action in placing his fingers upon Ms. Gallagher’s trachea, and more importantly, applying pressure to it, was offensive, not simply because it was taken in anger, but also because it was needless, and done to make her feel uncomfortable and anxious. [Appellee’s] action reasonably upset and embarrassed Ms. Gallagher. She was “shaken,” “stunned,” and “scared,” by [appellee’s] action, and shortly thereafter, because of it, resigned from her position at the hospital, a job she enjoyed. ³⁵⁰ The SBVME concluded that there was sufficient evidence to find that appellee intentionally placed his hand upon Gallagher’s person, without requesting or receiving her consent, and that such conduct was offensive. The SBVME further concluded that, based on appellee’s conduct towards Gallagher, he failed to conduct himself in relation to the public, his colleagues, and the allied professions so as to merit their full confidence and respect, in violation of COMAR 15.14.01.04. The SBVME suspended appellee’s veterinary license for one year, stayed all but two weeks, and placed him on probation for five years.

The SBVME also ordered appellee to pay a $500.00 civil penalty. Following the entry of the SBVME’s Decision and Order, appellee filed a request for review and reconsideration by the SBMVE on the grounds that the validity of the charge had not been proven by a preponderance of the evidence and that there was no statutory or regulatory authority to support the charge brought against appellee. Appellee did not request a rehearing pursuant to COMAR 15.14.02.10. 5 In conjunction with his request for review and reconsideration, appellee filed a motion to stay the sanction imposed by the SBVME. The SBVME denied appellee’s request for review, but granted his motion to stay in an order dated December 17, 2001.

Appeal To The Secretary On January 14, 2002, pursuant to Agrie. Art., § 2-405, appellee appealed the SBVME’s Decision and Order to the Secretary. Appellee filed a written statement seeking rever ³⁵¹ sal of the SBMVE’s decision on the following two grounds: (1) the agency did not prove the validity of the charge by a preponderance of the evidence; and (2) there was no statutory or regulatory authority to support the charge brought against appellee. Moreover, believing that the SBVME’s sanction against him was severe, appellee requested copies of all actions that the SBVME had taken against veterinarians since 1977.

Appellee further requested permission to file a supplement to his written statement of appeal because he was concerned that he would not have sufficient time to review the requested materials before the due date for his written statement of appeal. After making additional requests for extensions, appellee was finally advised by the Secretary to file his supplement on or before June 5, 2002. On June 5, 2002, appellee supplemented his written statement, setting forth five additional reasons why the Secretary should reverse the decision of the SBVME and issue a ruling in his favor: (1) the sanction imposed against appellee was arbitrary and unjust; (2) COMAR 15.14.01.04 is void for vagueness and violates appellee’s right to due process; (3) no legal grounds exist for sanctioning appellee for his alleged conduct; (4) the SBVME imposed an unreasonable standard for consent against appellee; and (5) the SBVME’s investigation and decision to charge appellee was arbitrary and unreasonable. Appellee attached two new exhibits to his supplemental written statement. 6 One of those exhibits, marked as Exhibit K, was the Affidavit of Tara Klimovitz, a veterinary technician formerly employed by FRAH who was present in the room at the time of the July 11, 2000 incident and observed appellee’s conduct towards Gallagher.

In her affidavit, Klimovitz recalled the incident, including appellee’s actions and Gallagher’s reactions. She stated that appellee requested Gallagher’s permission to demonstrate the anatomy on her, that Gallagher ³⁵² did not say “no” or “stop,” that appellee only touched Gallagher lightly with his finger for approximately five seconds, and that he was not angry with her. Klimovitz opined that “[t]he demonstration was useful, consensual, and was not inappropriate by any means.” Thereafter, on September 23, 2002, the Secretary issued his decision wherein he addressed all seven issues raised by appellee in his initial and supplemental written statements. The Secretary concluded: WHEREFORE, the Secretary of Agriculture affirms the decision of the State Board of Veterinary Medical Examiners of November 20, 2001, Docket No. 01-007, but vacates the Board’s sanction against [appellee] and substitutes the following: [Appellee] is hereby reprimanded for his conduct that violates COMAR 15.14.01.04, and is placed on probation for one year, beginning November 20, 2001.

Appeal to the Board of Review On October 21, 2002, following the entry of the Secretary’s decision, appellee filed an “Order of Appeal to the Chairman of the Board of Review Pursuant to COMAR 15.02.01.01(A).” In his December 17, 2002 memorandum to the Board of Review, appellee made the same seven arguments that he made in his appeal to the Secretary, except that before the Board of Review, appellee amended his first issue to assert that the Secretary erred in determining that the SBVME’s decision was supported by substantial evidence. Appellant opposed the memorandum, and appellee filed a reply memorandum. On October 16, 2003, the Board of Review held a hearing on appellee’s appeal. Thereafter, on March 23, 2004, the Board of Review issued a Decision and Order affirming the Secretary’s decision.

After reviewing the record below, the briefs of the parties, and the oral arguments presented by counsel, the Board of Review concluded that: (1) the Secretary properly deferred to the SBVME on the credibility of the witnesses and properly ruled that the SBVME’s decision was supported ³⁵³ by substantial evidence; (2) the Secretary correctly determined that the SBMVE had the statutory and regulatory authority to charge appellee with unprofessional conduct for touching Gallagher without her consent; (3) the sanction imposed on appellee was justified; and (4) COMAR 15.14.01.04 is not void for vagueness. In response to appellee’s remaining three issues, the Board of Review adopted the “response and reasons given in the Secretary’s decision of September 23, 2002.” Appeal to the Circuit Court for Baltimore County On April 22, 2004, appellee filed a petition with the circuit court requesting judicial review of the Board of Review’s Decision and Order affirming the Secretary’s decision. In a memorandum of law filed with the circuit court on September 7, 2004, appellee argued that: (1) the agency’s legal conclusions were wrong and therefore, not entitled to deference by the circuit court; (2) the factual decisions of the agency were not supported by substantial evidence; (3) the Board of Review and the Secretary applied the wrong standard of review; (4) appellee’s colleagues were not present during the teaching demonstration in which appellee touched Gallagher’s neck; and (5) COMAR 15.14.01.04 is unconstitutional because it fails to afford fair notice of prohibited acts and fails to provide adequate guidelines for those who enforce the statute. Appellant responded that: (1) the record contained substantial evidence supporting the violation; (2) appellee was required under COMAR 15.14.01.04 to conduct himself in relation to Gallagher in a professional and respectful manner; and (3) COMAR 15.14.01.04 is not unconstitutionally vague.

On February 8, 2005, the circuit court held a hearing on appellee’s appeal. Thereafter, in a Memorandum Opinion and Order dated February 28, 2005, the circuit court reversed, holding that an appeal to the Board of Review is de novo and, consequently, the Board of Review erred by basing its decision only upon the evidence in the record before the SBVME. The circuit court further determined that, pursuant to Agrie. Art., § 2-501, the Board of Review should have compelled the ³⁵⁴ attendance of witnesses and made its own findings of fact based upon the evidence presented. 7 The court did not rule on whether the decision of the SBVME is lawful and supported by substantial evidence.

Thereafter, appellant filed the instant appeal. DISCUSSION (I) Statutory Scheme Pursuant to Agrie. Art., § 2-310, the SBVME has plenary authority over the practice of veterinary medicine in the State of Maryland. Specifically, the SBVME may “[ejstablish reasonable standards for the practice of veterinary medicine, including conduct and ethics[,]” Agrie.

Art., § 2-304(a)(5), and it may “refuse, suspend, or revoke any application or license, and censure or place on probation any licensee after a hearing, ...” Agrie. Art., § 2-310. Before any license is suspended or revoked, the SBVME must give the licensee written notice of the time and place of the hearing, a copy of the charges, and an opportunity to be heard personally and be represented by counsel. Agrie.

Art., § 2-311(a)-(b). At the hearing, every witness shall testify under oath; the licensee has the right to confront the witnesses against him; and the Board can compel the attendance of witnesses. Agrie. Art., § 2 — 311 (b) — (c).

In addition, the SBVME is required to report its action in a writing, state the reason(s) for the action, and deliver or mail a copy of its report to the person against whom the complaint is made. Agrie. Art., § 2 — 311(d). A licensee aggrieved by a decision of the SBMVE has a right of appeal to the circuit court of the county where the ³⁵⁵ licensee has an office.

See Agrie. Art., § 2 — 311(e). On appeal to the circuit court, “[t]he court shall hear and determine all matters connected with the action of the [SBVME] from which appeal is taken in accordance with the Administrative Procedure Act.” Id. Before noting an appeal to the circuit court, however, an aggrieved licensee must first exhaust his or her administrative remedies.

See Agrie. Art., § 2-405. A licensee shall appeal the SBMVE’s decision to the Board of Review. See Agrie.

Art., § 2-404 (providing, inter alia, that the Board of Review “shall hear and determine appeals from any decision of the Secretary or any position or unit within the Department subject to judicial review under the Administrative Procedure Act or any other provision of law”). Although not required, a licensee also may file an application with the SBVME requesting a rehearing, and if the application is granted, the SBVME can consider new evidence and, in doing so, abrogate, change, or modify its original order. See COMAR 15.14.02.10. An appeal to the Board of Review is a two-step process. 8 First, “[t]he complainant shall file a written statement concisely setting forth the nature of the complaint and the relevant facts and circumstances ... with the Secretary....” Agrie.

Art., § 2-405(c). Thereafter, the Secretary “shall investigate the complaint,” and “shall render a decision in writing.” Agrie. Art., § 2-405(d). If the licensee remains aggrieved by an adverse decision, action, or failure to take action by the Secretary, he or she may file an appeal to the Board of Review.

Agrie. Art., § 2-405(e). Review procedures before the Board of Review are as follows: (f) Review procedures; Board decision is final agency decision. — The Board shall adopt procedures as provided in the ³⁵⁶ Administrative Procedure Act, and in all other respects shall be governed by the provisions of that act. At least three members shall sit at any hearing of the Board, constituted as a Board of Appeal.

Decisions shall be by a majority of the members sitting, shall be in writing, and shall state the Board’s reasons. Minutes of its proceedings shall be kept. The chairman, or acting chairman, may administer oaths and compel the attendance of witnesses. The decision of the Board shall be the final agency decision for the purposes of judicial review under the Administrative Procedure Act.

Agrie. Art., § 2-405(f). The rules of procedure governing appeals to the Board of Review, which were adopted pursuant to Agrie. Art., § 2-405(f), are found at COMAR 15.02.01, including: (1) COMAR 15.02.01.01B: Upon the filing of an order for appeal [to the Board of Review], the Secretary ... shall prepare the record, excluding a transcript of testimony, in the case to be transmitted to the Board of Review.

(2) COMAR 15.02.01.03B: The appellant shall, within 60 days after the date the order of appeal is filed, file with the Chairman of the Board of Review for inclusion in the record, a transcript of all the testimony.... These rules also require the parties to file with the Board of Review a memorandum of law that contains a statement of the case, a statement of facts, and an argument. COMAR 15.02.01.04B(2)(a)-(b). Finally, the rules provide that the Board “will either affirm or reverse the judgment from which the appeal is taken or direct the manner in which a judgment shall be amended,” COMAR 15.02.01.09A, and “[i]f it appears to the Board that the substantial merits of a case will not be determined by affirming, reversing, or modifying the judgment from which an appeal was taken, then the Board may order the case remanded to the Secretary....” COMAR 15.02.01.09B.

After exhausting the aforementioned administrative remedies, an aggrieved licensee has a right to appeal the decision of ³⁵⁷ the SBVME to the circuit court. See Agrie. Art., §§ 2-311(e), 2-405(g). The Administrative Procedure Act (“APA”), codified at Maryland Code (1984, 2004 Repl.Vol.), section 10-222(h) of the State Government Article, (hereinafter “State Gov’t Art., § -”) sets forth the standards for judicial review of administrative adjudicatory decisions as follows: (h) Decision. — In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious.

In terms of scope of review, the Court of Appeals has stated: Judicial review of administrative agency action is narrow. The court’s task on review is not to “ ‘substitute its judgment for the expertise of those persons who constitute the administrative agency.’ ” A reviewing “[e]ourt may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” A court’s role is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 576-77 , 650 A.2d 226 (1994) (citations omitted). ³⁵⁸ (II) Standard of Review by the Board of Review Appellant argues that the circuit court erred in ruling that (1) the appeal to the Board of Review was de novo, and (2) the Board of Review should have conducted an independent reexamination of the case rather than a review of the record. In particular, appellant asserts that when reviewing a disciplinary action taken by the SBVME against a licensee, the Board of Review’s task is akin to that of a reviewing court, viz., it ordinarily is limited to determining whether the agency’s decision is lawful and supported by substantial evidence in the record.

Appellee counters that the Board of Review is required by Maryland law to consider evidence that was submitted after the hearing and to conduct its own evidentiary hearing. We agree with appellant’s position. As we enumerated above in section (I) of our opinion, the SBVME, not the Board of Review, is the unit of the Department of Agriculture responsible for conducting contested case hearings against individuals charged with violating Maryland’s Veterinary Practice Act. See Agrie.

Art., § 2-310. Under the APA, the SBVME may conduct the contested case hearing or delegate its authority to the Office of Administrative Hearings (“OAH”). See State Gov’t Art., § 10-205(a). 9 In the instant case, the SBVME conducted its own hearing. The Board of Review plays a different role.

Instead of rehearing the subject disciplinary action, the Board of Review’s statutory responsibility is to review the SBVME’s decision in accordance with the APA. See Agrie. Art., § 2-405(f) (providing that appeals heard by the Board of Review shall be “governed by the provisions of [the Administrative Procedure ³⁵⁹ Act]”) (emphasis added). In accordance with the APA, the Board of Review’s scope of review in such matters is defined as “narrow,” i.e. determining whether there is substantial evidence in the record as a whole to support the SBVME’s decision and whether the SBVME’s decision is premised on an erroneous conclusion of law.

See United Parcel, 336 Md. at 576-77 , 650 A.2d 226 . In delineating its review function as provided for by the APA, the Board of Review adopted regulations governing appeals from the SBVME. See COMAR 15.02.01.01, et. seq. Those regulations provide that, upon the filing of an order of appeal, the Secretary shall prepare and transmit the record in the case to the Board of Review.

See COMAR 15.02.01.01B. Within 60 days after the date the order of appeal is filed, the appellant shall file a transcript of all testimony to be included in the record before the Board of Review. See COMAR 15.02.01.03B. Further, the parties are required to file memoranda with the Board of Review.

See COMAR 15.02.01.04. Finally, the Board of Review “will” affirm, reverse, or modify the judgment from which the appeal is taken, or may remand the same to the