Palmer v. Maine State Board of Nursing

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss CIVIL ACTION

DOCKET NO. AP-19-01

STACEY PALMER,

Petitioner

V. DECISION AND ORDER

(M.R.Civ.P. 80C)

MAINE STATE BOARD

OF NURSING,

Respondent

Before the court is Petitioner Stacey Palmer's (Palmer) M.R. Civ. P. 80C

Appeal of Final Agency Action against the Maine State Board of Nursing (Board).

For the reasons explained below, the court finds that Palmer's Rule 80C appeal

should be denied.

I. Background

The following facts are based on the Certified Administrative Record (R), and

the findings of fact made by the Board in its Decision and Order that is under review.

Palmer is a registered nurse, or RN, licensed to practice in Maine. (R. 23.) Palmer

was employed as a contract nurse by All Med Staffing of New England and was

assigned to work at Glenridge, an Alzheimer and dementia specialized division of

Maine General Health. (R. 21; 28.) On August 6, 2017, Palmer responded to a call

from a patient's ("DH") room. (R. 28.) DH had been ringing the nurses' bell and

Palmer told him to visit the nurses' station instead, if he needed assistance. (R. 24,

28.) According to Palmer, DH became defensive, raised his voice, and threatened

her with physical violence. (R. 28 .) Palmer raised her voice to be heard over DH.

(R. 28.) Palmer returned to the nurses' station and shortly thereafter, DH approached

the station to request a phone. (R. 29.) DH and Palmer again raised their voices.

(R. 24, 29.) CNA Grace Thomas (Thomas) witnessed the interaction, and testified

that Palmer "was screaming at the resident" and that Palmer's "body mechanics were

very threatening." (R. 91, 93.) Palmer contradicted Thomas' version of the events

and testified that she did not yell at the patient. (R. 238-39.)

Palmer denied getting out of her seat, but Thomas testified that she had to step

between Palmer and the resident. (R. 24, 29, 91-92.) Thomas does not recall the

actual words exchanged between Palmer and the patient, but she testified a second

time that Palmer "was definitely screaming." (R. 92, 106)) A supervisor was called

to intervene, as the patient returned to his room. The supervisor did not intervene at

the time, but questioned those involved approximately an hour after the incident.

(R. 38.) April Feltis, Clinical Nursing Supervisor, investigated the incident by

interviewing witnesses and writing summaries of the interviews. (R. 24-25, 126-28 .)

On September 22, 2017, Palmer was notified of a report filed against her by

All Med Staffing. (R. 21.) The Notice of Complaint stated that the reported incident

of Palmer yelling at a resident/patient was a possible violation of professional

conduct or other Board rules, 32 M.R.S. §§ 2105-A (2)(F), (2)(H). 1 (R. 21.) The

Notice of Hearing and Second Amended Notice of Hearing, sent on June 21, 2018,

and September 21, 2018, cited possible violations of: (1) a rule adopted by the Board

for engaging in behavior that exceeded professional boundaries, Board Rules Ch. 4

'2(F). Unprofessional Conduct. A licensee is considered to have engaged in unprofessional

conduct if the licensee violates a standard of professional behavior that has been established in

the practice for which the licensee is licensed. 32 M.R.S. § 2105-A (2)(F). 2(H) . A licensee is

also subject to discipline for a violation of the State law governing the licensing of nurse or a rule

adopted by the board. 32 M.R.S. § 2105-A(2)(H)

2

§ 3(U), and; (2) a standard of professional behavior, Provision 1 of the American

Nurses Associations' Code of Ethics. 2 (R. 18, 428.)

The State filed proposed exhibits on July 9, 2018, pursuant to a July 1, 2018

Scheduling Order. (R. 424, 426.) Palmer's counsel requested a continuance on July

10, 2018. (R. 420-21.) The hearing was continued to September 19, 2018, and the

State provided Palmer with its witness list and proposed exhibits on August 22,

2018. (R. 415-17.) Pursuant to a Continuance Order dated September 19, 2018,

proposed exhibits, witnesses, and Palmer's objections to the State's exhibits were to

be filed by September 27, 2018. (R . 415.) On September 27, 2018, Palmer identified

several character witnesses and reserved the right to use the State's witnesses and

exhibits. (R. 410.) Palmer did not object to any State exhibits or witnesses. (R. 410.)

The Board conducted the first day of the hearing on October 4, 2018. (R. 70 .)

Grace Thomas and April Feltis testified, were cross-examined, and were dismissed.

(R . 85-206 .) The hearing was continued due to an illness, apparently of Palmer's

attorney. (R. 225-26, 378.) On October 6, 2018, Palmer's counsel requested six

subpoenas for documents. (R. 406-08.) The State objected and Palmer filed a

response to the State's objections. (R. 389, 401.) On October 15, 2018, an

electronically signed subpoena was sent via email to Palmer's counsel. (R. 367 .) In

an Order on Subpoenas dated October 25, 2018, the Hearing Officer denied the

remaining subpoena requests. (R. 378) In a detailed written Evidentiary Order dated

October 29, 2018 the Hearing Officer allowed two of Palmer's exhibits and one

identified witness. (R. 372.)

' 3(U) Engaging in behavior that exceeds professional boundaries including, but not limited to,

sexual misconduct. Board Rules Ch. 4 § 3(U). The nurse practices with compassion and respect

for the inherent dignity, worth, and unique attributes of every person. Provision 1 of the

American Nurses Associations' Code of Ethics.

3

The Board conducted the final day of the hearing on November 1, 2018. (R.

209 .) Palmer's counsel moved for a "mis-hearing" and argued the motion after the

Hearing Officer had turned off the recording device to clarify the order of the

hearing. (R. 217-19.) Palmer's counsel also accused the Acting Board Chair of

"huffing and puffing," and moved that the Acting Board Chair and the Hearing

Officer both recuse themselves. (R. 217, 225 .) The Hearing Officer denied the oral

motions. (R. 229-30.) The Acting Board Chair did not recuse herself because she

"could continue to preside over the hearing in a fair and impartial manner." (R. 229 .)

Palmer testified, was cross-examined, and was dismissed as a witness on

November 1, 2018. (R. 209.) At the close of the evidence, Palmer moved to dismiss

the allegations, which the Board voted to deny after argument. (R. 323-27 .) After

closing arguments, the Board began deliberations, but paused to ask Palmer some

additional questions. (R. 347 .) When deliberations resumed, a majority of the Board

voted to find that Palmer had violated 32 M.R.S. 2105-A(2)(F) & (H) and Board

Rules Ch. 4 § 3(U). (R. 151.) The Board issued a warning and imposed a one-year

probation requiring Palmer to provide any nursing employer a copy of the Decision

and Order, submit quarterly reports from a nursing employer, and complete two

courses. (R. 16-17 .) The Board issued its written decision on December 6, 2018. (R.

17 .)

On January 7, 2019, Palmer filed an appeal from the Board's decision

pursuant to M.R. Civ. P. 80C, alleging that the Board's action was biased and

violated constitutional protections including her rights to due process and freedom

of speech. 3

'After the parties had filed their respective briefs in this Rule 80C appeal, Palmer sought leave to

file an amended complaint adding independent claims. The court denied the motion on June 3,

2019.

4

II. Standard of Review

The court reviews the Board's decision for abuse of discretion, error of law,

or findings not supported by substantial evidence in the record. Connolly v. Board

of Social Work Licensure, 2002 ME 37, ~ 6, 791 A.2d 125. "The court's review is

limited to determining whether the agency's conclusions are unreasonable, unjust,

or unlawful in light of the record." lmagineering v. Department of Professional &

Financial Regulation, 593 A.2d 1050, 1053 (Me. 1991). The court will sustain the

administrative decision if, "on the basis of the entire record before it, the agency

could have fairly and reasonably found the facts as it did." Seider v. Bd. of

Examiners of Psychologists, 2000 ME 206, ~ 9, 762 A.2d 551. The party seeking to

vacate the agency's decision bears the burden of proving that no competent evidence

exists to support the agency's decision. Id. Upon judicial review, the court's role is

to "determine whether the Board applied the law correctly and whether it exceeded

the bounds of its discretion." Lippitt v. Bd. of Certification for Geologists and Soil

Scientists, 2014 ME 42, ~ 16, 88 A.3d 154. "An abuse of discretion may be found

where an appellant demonstrates that the decisionmaker exceeded the bounds of the

reasonable choices available to it, considering the facts and circumstances of the

particular case and the governing law." Id.

III. Discussion

1. Abuse of Discretion Claims

Palmer argues that the Board abused its discretion by admitting and relying

upon Ms. Feltis 's testimony and report because it constituted hearsay and double

hearsay. The State asserts that Palmer did not preserve this issue for appeal because

she did not object to the State's exhibits or witnesses. "Plaintiffs in a Rule 80C

proceeding for review of final agency action are expected to raise any objections

they have before the agency in order to preserve these issues for appeal." Forest

Ecology Network v. Land Use Regulation Comm'n, 2012 ME 36, ~ 24, 39 A.3d 74

5

(internal citation omitted). While Palmer did not object to the State's exhibits or

witness testimony, she did object to the State's questioning of Ms. Feltis on the basis

of hearsay during the hearing. (R. 131.) The Hearing Officer ruled that the

testimony, although containing hearsay, was admissible because it was reasonable.

(R. 131.)

The standard for the admission of evidence in administrative hearings is

whether the "evidence is the kind upon which reasonable persons are accustomed to

rely in the conduct of serious affairs." 5 M.R.S. § 9057(2); see Keller v. Maine

Unemployment Ins. Comm'n, 477 A.2d 1159, 1161 (Me. 1984) ("Maine Rules of

Evidence do not apply in administrative hearings."). While the Law Court has found

that double hearsay did not satisfy the evidentiary standard for administrative

proceedings if not corroborated by additional evidence, Keller at 1161, the Court has

also emphasized that the reliability of hearsay is the determinative factor for

assessing reasonableness. Dowling v. Bangor Housing Auth., 2006 ME 136, ~ 32,

910 A.2d 376. In determining the reliability of hearsay for an administrative

proceeding, the court considers "whether the hearsay evidence is corroborated, in

whole or part, by live testimony presented at the hearing or an admission; the source

of the hearsay, including the potential for bias or motive to fabricate; and whether

the hearsay evidence is sufficiently detailed." Id. at~ 33 (quoting State v. James,

2002 ME 86, ~ 15, 797 A.2d 732) (internal quotations omitted). The Hearing Officer

did not abuse her discretion in admitting hearsay because its reliability was

established by corroborating evidence, including handwritten accounts of the event,

notes taken during Ms. Feltis's investigation, the live testimony of Ms. Feltis and

Ms. Thomas, and the sources of the hearsay were identified.

Palmer next contends that the Board abused its discretion by denying her

subpoenas. She claims that the Board, through the Hearing Officer, used a

"reasonable directness" standard, denied subpoenas on the ground of untimeliness,

6

and did not comply with Maine Rules of Civil Procedure in serving subpoenas. 5

M.R.S. § 9060(1). Palmer's arguments are without merit.

The subpoenas requested by Palmer sought "all notes, memos, records,

research, statements, copies of records reviewed, and all other material related to the

investigation of D.H, ... Terri Stone, R.N ., a supervisor in the facility, ... and Ms.

Thomas." (R. 379) Another subpoena sought "all medical records, mental health

records, employment records, workers' compensation records, civil litigation

records, criminal litigation records, human rights and/or discrimination records, and

disability records from January 1, 2007, to the present," for Ms. Thomas. Id.

Finally, Palmer sought extensive access into the medical records of the patient, DH.

The Hearing Officer issued an order dated October 25, 2018, in which she

concluded that the subpoenas in question were not "related with reasonable

directness" to any issue of fact in the proceeding before the Board. (R. 380).

Moreover, the Hearing Officer determined that Palmer's request for subpoenas was

untimely because they were submitted after the first day of the hearing and well after

the deadlines set by the Board.

Palmer claims that the Hearing Officer "made up" a "reasonable directness"

standard that does not exist in the law. Pet's Brief at 9-10. Title 5 M.R.S. §

9060(1 )(C) is the source of the reasonable directness standard utilized by the Hearing

Officer. Section 9060(1) provides that a party "shall be entitled as of right" to the

issuance of subpoenas for the production of "evidence relating to any issue of fact

in the proceeding." In attempting to determine whether a particular subpoena sought

evidence "relating to any issue of fact in the proceeding," the hearing officer was

guided by the language of section 9060(1)(C), which permits an agency to vacate or

modify a subpoena, upon the petition of a witness, if the testimony or evidence

sought "does not relate with reasonable directness to any matter in question."

7

The Hearing Officer did not "make up" or invent the reasonable directness

standard as alleged by Palmer. "Reasonable directness" is the standard to determine

whether the sought for evidence is sufficiently "related" to an issue of fact in the

proceeding. The Board did not commit error by evaluating Palmer's subpoena

requests for "reasonable directness."

Furthermore, the Board did not abuse its discretion by denying the requested

subpoenas because they were overbroad, unreasonably "wide-ranging," and

immaterial to the issues of fact in the case. Stated otherwise, in denying the

subpoenas the Board did not "exceed the bounds of reasonable choices available to

it." Lippitt v. Bd. of Certification for Geologists and Soil Scientists, 2014 ME 42, ~

16, 88 A.3d 154; see also Taylor v. Public Utilities Comm'n, 2016 ME 71, ~ 5 n.4,

138 A.3d 1214 (denying subpoenas was not an abuse of discretion). 4

Finally, Palmer's claim that the Board committed error in its handling of the

subpoenas it did allow, has no merit. Nothing in the Maine Rules of Civil Procedure

or the Administrative Procedure Act requires an agency to serve subpoenas for a

party. It was Palmer's responsibility, not the Board's, to follow through on the

service of any subpoenas.

On November 1, 2018, the Hearing Officer called the second day of the

hearing to order. The State called Ms. Palmer as its first witness of the afternoon.

As Palmer's direct examination was in progress, her counsel interrupted to ask

whether the "agreed-up evidence," i.e., the stipulation, had been provided to the

Board members. (R., 215). Apparently, there was a disagreement between the

Hearing Officer and Palmer's counsel as to the timing of informing the Board

members of the stipulation. It is apparent to the court from reading the transcript of

' Palmer has also complained that she was not provided discovery. Once again, this claim lacks

merit. The court has scrutinized the entire administrative record and is satisfied that Palmer was

provided with appropriate discovery.

8

the proceeding, that the Hearing Officer was concerned about the tone used by

Palmer's counsel, as she stated: "You need to resolve your tone, please. We're in

an administrative hearing and part of my job is to make sure we proceed in an orderly

manner." Id. Attorney Bennett replied: "Is a recording being made that will reflect

my tone?" He then proceeded to lodge an objection concerning Ms. Palmer's use of

certain notes while testifying. (R., 216).

The Hearing Officer told Attorney Bennett: "So you're misconstruing facts,"

because as far as she was concerned "[n]o one has asked me to make a ruling about

any notes." Id. Attorney Bennett told her: "Don't cut me off while I'm making a

record." Id. A discussion then ensued about the notes and whether Palmer should

be required to show the notes to opposing counsel if she was going to be using them

on the witness stand. Attorney Bennett continued to argue the point until the

following colloquy occurred:

HEARING OFFICER: Okay. So I'm going to stop you and I'm

going to enter ­

MR. BENNETT: You can't stop me .

HEARING OFFICER: Yes, I can .

MR. BENNETT: I'm making a record and an objection .

(OFF RECORD)

(R. 218).

There was a discussion off the record for an unknown period of time. When

the record resumed, the following colloquy took place:

HEARING OFFICER: Okay, so I'm putting the record ­

MR. BENNETT: Are we back on the record?

HEARING OFFICER: We are back on the record.

9

MR. BENNETT: Okay. I want the record to reflect at this point

that the Hearing Officer has shut off the recording and turned it

back on in order to say something off the record. You absolutely

interfered with the creation of a public record in an official

proceeding.

HEARING OFFICER: Okay.

MR. BENNETT: You can't do that.

HEARING OFFICER: Okay.

MR. BENNETT: I'm not proceeding. I'd like a ruling on my

motion to recuse. You shut off an official proceeding in the

middle in order to make a statement to me.

HEARING OFFICER: It's my job as the hearing officer to

regulate the course of the hearing, including what goes on the

record and what is not on the record. What I wanted to remind

you of off the record was what we agreed to prior to the hearing

which is when I would give you the opportunity to put your

objections on the record, which was explicitly stated to you to be

after your client testified during a break in the proceedings,

okay?

So now I'm going to try to back up and address your varies

[sic] objections. So I've made a ruling that if you want to show

your client's exhibits, a record or documents, whatever she

brought, to the State, give them a chance to review it. I will then

make a determination about whether she can have them with her

to testify. Would you like to take advantage of that or not?

(R., 218-19).

The Hearing Officer and Attorney Bennett then engaged in a discussion for

several minutes about whether and how Ms. Palmer could use her notes, if she

decided to refer to them. The Hearing Officer made her ruling, and was prepared at

10

that point to resume the testimony of Ms. Palmer. Attorney Bennett, however,

wanted to pursue his additional objections:

HEARING OFFICER: I think with that, we can continue with

questions.

MR. BENNETT: I just want the record to reflect that I was in

the middle of an objection.

HEARING OFFICER: But you were making statements that you

- we had talked about you doing outside the presence of the

Board.

MR. BENNETT: I was making an objection, a due process

objection. You interfered with my ability to make that record,

and now you're telling me I can't complete the objection; is that

correct?

HEARING OFFICER: No. Go ahead and complete the

objection, please. Why you do [sic] all of them on the record

now.

(R. 221).

Attorney Bennett then made a fairly lengthy statement during which he

complained about: the alleged lack of discovery; the fairness of the hearing; how his

subpoena requests were handled; time limits imposed by the hearing officer; alleged

lack of notice, and; the standard for the admission of evidence. While in the middle

of this statement, Attorney Bennett directly addressed the Chair of the Board and

said:

MR. BENNETT: Ma'am, Ms. Soneson, 1s there a problem

because you're huffing and puffing?

HEARING OFFICER: I'm going to ask ­

MS. SONESON: (Indiscernible).

11

HEARING OFFICER: Please don't engage. Just continue with

your argument, please Attorney Bennett.

MR. BENNETT: The last time I was here I was ill, and this

particular hearing officer refused to recognize that and voted

against a continuance.

HEARING OFFICER: Are you talking about a Board member?

Because you said hearing officer.

MR. BENNETT: I'm talking about - I believe it says Soneson .

HEARING OFFICER: Okay. I just want the record to be clear.

You said hearing officer, so ­

MR. BENNETT: Okay. I meant - I believe it's Nurse Soneson.

HEARING OFFICER: Okay.

MR. BENNETT: And so I just- to the extent that she's making

herself and her feelings known, I want the record to reflect that,

and I move that she recuse herself from further involvement in

these proceedings on the basis of bias and prejudice against

myself and my client, and unprofessional conduct in this

proceeding and how she treated me the last time I was here.

(R. 225-26).

Attorney Bennett continued with his objections, including that the

"stipulation" be provided to the Board, which the Hearing Officer agreed to do. (R.

226-27). The Hearing Officer again requested Attorney Bennett to finish up so that

more testimony could be taken. Attorney Bennett was not done and continued his

series of objections, often repeating what he had already said. Finally, the Hearing

Officer said: "Are you about done?" (R. 229). At this point, Attorney Bennett

moved for a mistrial or, in the alternative, for the Hearing Officer and the Chair to

12

recuse themselves from the proceeding. Both the Hearing Officer and the Chair

declined to do so. (R. 229-30).

The Hearing Officer responded to some of the objections advanced by

Attorney Bennett, and also referred to her prior written rulings. Attorney Bennett

returned to the fact that the Hearing Officer went off the record for a period of time:

MR. BENNETT: Finally, I want to reemphasize that shutting off

the official record and addressing me in the presence of the Board

and then turning on the official record after the fact is an absolute

violation of multiple due process concerns as well as conduct

code concerns. And I would emphasize my client's objection to

proceeding without a mistrial based on that.

HEARING OFFICER: Okay. So you're repeating the same

arguments.

MR. BENNETT: I'm making sure that that's clear on the record.

HEARING OFFICER: I think it's ­

MR. BENNETI: I'm not repeating. I'm making sure it's on the

record.

HEARING OFICER: And it is on the record. You were delving

into information that we had agreed would take place outside the

Board's hearing. I then resumed the hearing and repeated the

same information on the record. So with that, we're going to

resume the testimony ....

MR. BENNETI: And I dispute that. I dispute that

characterization.

HEARING OFFICER: That's fine.

(R. 231-32).

Palmer now claims that the Hearing Officer and the Board Chair abused their

discretion by failing to declare a mistrial and/or to recuse themselves. In her Brief

13

to this court, Palmer has stated: "The Hearing Officer, in the middle of the

Petitioner's motions, turned off the Record and scolded, berated and belittled the

Petitioner in front to the voting body of the Respondent." Pet. 's Reply Brief at 10

citing R 214. The court has scrutinized the entire record of this proceeding and has

paid particular attention to that portion of the hearing transcript at which the Hearing

Officer went off the record.

The court notes that Palmer's citation to the record (R. 214) does not provide

any support whatsoever for her claim that the Hearing Officer "scolded, berated and

belittled" her or her attorney. Indeed, nothing in the entire hearing transcript

supports such a claim. It is also clear to the court, from the entire context of what

happened, that Palmer's counsel decided, in the middle of his client's direct

examination, to interrupt the proceedings to make a litany of objections and motions

in front of the Board members, notwithstanding the fact that it had been previously

agreed that he would be given the opportunity to put his objections and motions on

the record after his client had testified.

The court is satisfied that the Hearing Officer went off the record to remind

Palmer's counsel of that agreed-upon procedure. There is absolutely no support for

Palmer's allegations that the hearing officer scolded, berated, belittled, or otherwise

chastised her or her counsel. Rather, it strikes the court that the Hearing Officer

demonstrated commendable patience with Palmer's counsel, who consistently

interrupted her and whose manner of addressing the Hearing Officer bordered on

being disrespectful, at the least. While it may have been unwise for the Hearing

Officer to go off the record at that point in the proceeding (because it simply

generated an additional objection and more accusations), Palmer was not prejudiced

in any way and the record supports the conclusion that she was given more than an

ample opportunity to make and record her objections and motions.

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Moreover, Palmer has accused the Hearing Officer of "near-constant

berating" of her and her attorney. Pet. 's Reply Brief at 10. See also Pet. 's Brief at

14. The court has personally examined every record reference cited by Palmer in

support of this allegation and finds a complete absence of support for it.

Finally, the court concludes, based on its review of the record, that neither the

Hearing Officer nor the Board Chair abused their discretion by failing/refusing to

recuse themselves. "Due process requires a fair and unbiased hearing." Friends of

Maine's Mts. v. Ed. of Envtl. Prot., 2013 ME 25, ~ 23, 61 A.3d 689. To show bias,

Palmer must "overcome a presumption that the fact-finders, as state administrators,

acted in good faith." Id. (internal citation omitted). Presiding officers have the

"authority to regulate the course of the hearing." 5 M.R.S. § 9062(3)(C). A hearing

officer's "expressions of impatience, dissatisfaction, annoyance, and even anger" do

not constitute bias or prejudice. Lane Const. Corp. v. Town of Washington, 2008

ME 45, ~ 30 (citing Liteky v. United States, 510 U.S. 540, 555-56 (1994)). Here,

Palmer has not overcome the presumption that the Hearing Officer acted in good

faith to regulate the course of the hearing by requesting counsel to ask relevant and

material questions, to adhere to the pre-determined order of the hearing or to impose

reasonable time limits. (R. 163-64, 170, 178-79, 184, 218-32, 330-33, 338-39 .)

Likewise, Palmer has not overcome the presumption that the chairperson acted in

good faith because the record does not reflect that the chairperson acted improperly.

See Lane Const. Corp. v. Town of Washington, 2008 ME 45, at~ 30.

2. Procedural Due Process

Palmer argues that the Board's decision was the result of procedural

unfairness. Procedural due process claims are first reviewed to "determine if the

government has deprived a claimant of life, liberty or property interests. Second, if

such a deprivation occurred, it is then determined what process, pursuant to the

Fourteenth Amendment, is due utilizing the factors in Mathews v. Eldridge, 424 U.S.

15

319 (1976)." DaimlerChrysler Corp. v. Me. Revenue Servs., 2007 ME 62, ~ 26,922

A.2d 465. The Eldridge factors assess:

First, the private interest that will be affected by the official action; second,

the risk of an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or substitute procedural

safeguards; and finally, the Government's interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

Id. at~ 26. Palmer has a property interest in her nursing license. See Balian v. Board

of Licensure in Med., 1999 ME 8, ~ 11, 722 A.2d 364. Palmer alleges that her right

to due process was violated through the Hearing Officer's action of turning off the

recording, criticizing her attorney, imposing time limits on the hearing, arbitrarily

imposing rules, and interrupting cross-examination. "The essential requirement of

due process in the administrative context is that a party be given notice and an

opportunity to be heard." Martin v. Unemployment Ins. Comm'n, 1998 ME 271, ~

15, 723 A.2d 412. Palmer was given the opportunity to introduce evidence and did

present evidence through cross-examination of witnesses and her own testimony.

See Bolduc v. Androscoggin County Comm 'rs, 485 A.2d 655, 658 (Me. 1984).

Further, the Hearing Officer articulated an evidentiary standard and explained the

reason she went off the record. (R. 131-132; 218-219 .)

The court has already addressed the issue of the Hearing Officer going off the

record and that reasoning applies here as well. The Hearing Officer acted within her

role of regulating the course of the hearing. 5 M.R.S. § 9062(3)(C). The procedural

irregularities, if any, did not add a risk of erroneous deprivation of Palmer's license,

and the value of any additional or substitute procedural safeguards would have been

minimal. See DaimlerChrysler Corp. v. Me. Revenue Servs., 2007 ME 62, at~ 26.

16

3. Substantial Evidence

Palmer claims that the Board's decision was not supported by substantial

evidence. The court reviews the factual findings of the Board to determine whether

it "made findings not supported by substantial evidence in the record." Bankers Life

& Cas. Co. v. Superintendent of Ins., 2013 ME 7, ~ 16, 60 A.3d 1272. The court

will "examine the entire record to determine whether the agency could fairly and

reasonably find the facts as it did, even if the record contains other inconsistent or

contrary evidence." Id. The record contains Palmer's statement that she did raise

her voice. The testimony of Ms. Thomas, who described Ms. Palmer as "screaming"

at the patient/resident using body language that she found "very threatening," was

competent evidence supporting the Board's findings. Moreover, the Board had

before it the American Nurses Association Code of Ethics, and testimony from a

nurse supervisor that yelling/screaming at a patient constitutes unprofessional

conduct. (R. 28-29, 50-55, 142.) Accordingly, the Board's decision was supported

by substantial evidence in the record.

4. Whether the Board's Decision Applied a Clear Standard

Lastly, Palmer contends that the standard applied by the Board was unclear

and not supported by expert testimony. Mitchell v. Jackson, 627 A.2d 1014, 1016­

17 (Me. 1993).

Palmer was charged with and disciplined for violating 32 M.R.S. §2105­

A(2)(F) for engaging unprofessional conduct and 32 M.R.S. §2105-A(2)(H) for

violating a Board Rule, i.e., Board Rule 3(U). In particular, Palmer was found to

have engaged in unprofessional conduct by: (1) engaging in behavior that exceeded

professional boundaries, and; (2) engaging in behavior that violated Provision 1 of

the American Nurses Association Code of Ethics requiring nurses to practice with

compassion and respect for the inherent dignity, worth and unique attributes of every

person.

17

The State argues that the admission in evidence of the applicable provision

of the American Nurses Association Code of Ethics was sufficient for an

administrative hearing. See Balian, 1999 ME 8, at ~ 15. Further, if an act is

indisputably improper, a professional regulatory board does not need to present any

evidence of the applicable standard to support a finding that the standard has been

violated. Zablotny v. State Board of Nursing, 2017 ME 29, ~ 22, 156 A.3d 126.

While Palmer denied yelling at a patient during the hearing, multiple prior

statements made by her in which she admitted raising her voice to the patient were

made part of the administrative record. (R. 24, 28-29.) The record also includes the

American Nurses Association Code of Ethics, Provision 1, and Ms. Feltis's

testimony that yelling/screaming at a patient/resident violated that Code of Ethics.

The Board did not commit error in concluding that conduct by a nurse of yelling and

screaming at a patient/resident in a facility such as the one DH was in, constituted

unprofessional conduct. As applied to the facts of this case, the standard of conduct

by which Ms. Palmer was judged was not unclear, nor was there a need to present

additional expert testimony that screaming at a patient in the manner described by

Ms. Thomas was unprofessional.

CONCLUSION

The entry is:

The Petition for Judicial Review is DENIED and the decision of the State

Board of Nursing is AFFIRMED.

The Clerk is directed to incorporate this order into the docket b

pursuant to M.R. Civ. P. 79(a).

'\

Date: September 24, 2019

0 S

Justice, Superior Court

18