The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO-AP-19-38
CYNTHIA TEER, D.V. M.,
Petitioner
DECISION AND ORDER
(M .R.Ci v.P .SOC)
V.
STATE BOARD OF
VETERINARY MEDICINE,
Respondent
INTRODUCTION
Before the court is the Petition for Judicial Review filed by Dr. Cynthia
Teer, D .V .M. from a written ruling of the State Board of Veterinary Medicine
(Board) granting Dr. Teer a suspended license to practice veterinary medicine
in the State of Maine, and also imposing sanctions upon her for four alleged
violations of the statutes and rules governing veterinarians. Dr. Teer seeks
judicial review of the Board's Decision and Order dated June 20, 2019 in
accordance with 5 M.R.S. § 11001 Maine Administrative Procedure Act and
M.R.Civ.P. SOC.
The court has examined the entire administrative record and has read
the memoranda of the parties, who have waived oral argument. The material
facts may be summarized as follows.
PROCEDURAL AND FACTUAL BACKGROUND
Dr. Teer was first licensed to practice as a veterinarian in Maine in
2002. In January, 2014, the Board issued a disciplinary decision against Dr.
Teer that required her to do certain things, including the submission to the
Board of patient records on a quarterly basis. In September, 2017, Dr. Teer
filed an application with the Board for the renewal of her license. In
December, 2017, the Board preliminarily denied the license because Dr. Teer
had failed to produce records as required by the previously issued disciplinary
order. The Board informed Dr. Teer that her failure to request a hearing within
30 days would result in the preliminary denial of her license application
becoming final. Dr. Teer did not request a hearing.
Dr. Teer received both written and verbal notice that the denial of her
license application had become final as of January 24, 2018. Nevertheless,
the Board found, and Dr. Teer did not dispute, that she continued to practice
veterinary medicine without a license from January 24, 2018 up to the date of
the hearing in this matter on May 22, 2019. In the meantime, on May 9, 2018,
Dr. Teer filed another application for licensure as a veterinarian, which was
also preliminarily denied in June 2018. Dr. Teer received notice that she did
not hold a valid license to practice veterinary medicine in Maine.
In August, 2018, the Superior Court preliminarily enjoined Dr. Teer
from engaging in any act constituting the practice of veterinary medicine. Dr.
Teer continued to practice as a veterinarian. In October, 2018, however, Dr.
Teer, the Board and the Office of the Attorney General entered into a Consent
Agreement, in which Dr. Teer admitted to practicing without a license and
engaging in actions that amounted to gross negligence, incompetence,
misconduct and/or violations of the code of ethics or the standard of practice
for veterinarians. She was reprimanded, required to pay a $10,000 civil
penalty and placed on probation for 5 years. Among other conditions, Dr.
Teer was required to engage the services of a "veterinary practice monitor
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who shall monitor her veterinary practice." The practice monitor had to be
approved by the Board prior to Dr. Teer being granted a license.
Dr. Teer did not obtain the Board's approval for a practice monitor,
although she did seek to engage the services of someone to act as a monitor.
Accordingly, the Board did not issue Dr. Teer a license to practice as a
veterinarian. Dr. Teer continued to practice nonetheless. The Board's
investigator visited Dr. Teer's office in Machias during January 2019 and
found evidence that Dr. Teer was practicing veterinary medicine.
On January 22, 2019, the investigator filed a disciplinary complaint
against Dr. Teer on the basis that she continued to practice without a license.
In February, 2019, the Board continued to receive additional complaints that
Dr. Teer was practicing as a veterinarian. Also, in February the Board sent
written notice to Dr. Teer of the complaints against her and directed her to
respond and to produce patient records. Dr. Teer responded but provided no
records.
In March 2019, Dr. Teer sent a letter to the Board apologizing for
"misunderstanding" her obligations under the Consent Agreement. Dr. Teer
continued to practice, including performing surgery. Additional complaints
were filed against Dr. Teer in March and April, 2019. Although notified of
these complaints, and directed by the Board to respond to them and produce
patient records, Dr. Teer did not make any response to the Board.
In mid-April, 2019, a news station aired a story about Dr. Teer and her
failure to obtain a Maine license to practice as a veterinarian, all the while she
was actually practicing in that capacity. Dr. Teer complained that "[t]he
Board is at fault."
An adjudicatory hearing was held by the Board on May 22, 2019 on the
disciplinary complaint against Dr. Teer. Numerous witnesses, including Dr.
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Teer, testified. At the conclusion of the evidence, the Board deliberated in
public and found that Dr. Teer had violated the statutes and rules governing
the practice of veterinary medicine in four particular respects, name Iy: (1) that
she practiced veterinary medicine after being informed by the Board and the
Superior Court that she did not hold a license; (2) that she "intentionally
misrepresented" the status of her veterinary license; (3) that she acted in a
capacity requiring a license after her license had expired, and; (4) that she
failed to produce patient records as required by the Board.
Also before the Board was Dr. Teer's application for a license filed in
March 2019. As a result of the May 22, 2019 hearing, the Board voted to
grant Dr. Teer' s license application and to impose sanctions for her violations.
The Board's findings and the sanctions and conditions it imposed are fully
described in its written Decision and Order dated June 20, 2019. Specifically,
Dr. Teer' s license was suspended for a total of 360 days (90 days for each of
the violations). The Board, however, agreed to stay one-half (180 days) of
the suspension, provided Dr. Teer met the following conditions:
(a) Completion of a mental health evaluation by a mental health
professional approved by the Board or its designee:
(b) The engagement of a practice monitor approved by the Board;
(c) Completion of 24 hours of continuing education, and;
(d)Appearance before the Board at its September 2019 meeting to
provide a progress report on her compliance with the conditions
described above.
Once Dr. Teer's license suspension has ended, she will be on probationary
status for 5 years with conditions that include the production of patient records
to the Board on a quarterly basis, pre-approval of the practice monitor,
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mm1mum continuing education requirements and appearances before the
Board at least twice a year to provide progress reports.
Dr. Teer now seeks judicial review of the Board's Decision and Order
and the Board proceedings leading up to it.
STANDARD OF REVIEW
The Law Court has frequently reaffirmed the principle that judicial
review of administrative agency decisions is "deferential and limited."
Passadumkeag Mountain Friends v. Bd. of Envtl. Prot., 2014 ME 116, ~ 12,
102 A.3d 1181 (quoting Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010
ME 18, f 12, 989 A.2d 1128). The court is not permitted to overturn an
agency's decision "unless it: violates the Constitution or statutes; exceeds the
agency's authority; is procedurally unlawful; is arbitrary or capricious;
constitutes an abuse of discretion; is affected by bias or error of law; or is
unsupported by the evidence in the record." Kroger v Departmental of
Environmental Protection, 2005 ME. 50, ! 7, 870 A.2d 566. The party seeking
to vacate a state agency decision has the burden of persuasion on appeal.
Anderson v Maine Public Employees Retirement System, 2009 ME. 134, ~ 3,
985 A.2d 501. In particular, a party seeking to overturn an agency's decision
bears the burden of showing that "no competent evidence" supports it. Stein
v. Me. Crim. Justice Academy, 2014 ME 82, ~ 11, 95 A.3d 612.
This court must examine "the entire record to determine whether, on
the basis of all the testimony and exhibits before it, the agency could fairly
and reasonably find the facts as it did." Friends of Lincoln Lake v Board of
Environmental Protection, 2001 ME. 18 ~13, 989 A. 2d 1128. The court may
not substitute its judgment for that of the agency's on questions of fact. 5
M.R.S. § 11007(3). Determinations of the believability or credibility of the
witnesses and evidence, supported by substantial evidence in the record,
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should not be disturbed by this court. Cotton v Maine Employment Security
Commission, 431 A. 2d 637,640 (Me. 1981). The issue is not whether the
court would have reached the same result the agency did, but whether the
"record contains competent and substantial evidence that supports the result
reached" by the agency. Seider v. Board of Examiners of Psychologists, 2000
ME 206, ~ 8, 762 A.2d 551 quoting CWCO, Inc. v. Superintendent of
Insurance, 1997 ME 226, ~ 6, 703 A. 2d 1258, 1261.
DISCUSSION
A. The Questioning Conducted by the Hearing Officer
During the testimonial hearing before the Board, the Hearing Officer (a
lawyer) asked questions of two witnesses. She asked questions of Dr. Teer
without objection, and Cathy Neumann without objection until well into her
questioning, at which point counsel for Dr. Teer objected. The Hearing
Officer asked one final question after that. (A.R. at 254-55; 262-63).
Dr. Teer now claims that questioning witnesses by the Hearing Officer
was "plainly and flatly prohibited." Pet. 's Memorandum at 6. The court is
not convinced that questioning by a hearing officer in general is so plainly
forbidden, as claimed by Dr. Teer. Rather, asking clarifying and non
prejudicial questions would seem to be consistent with a hearing officer's role
of regulating the course of the proceedings and, ultimately, preparing a draft
written decision on behalf of the Board. 5 M.R.S. § 9062(3). The court has
reviewed the questions asked by the Hearing Officer in this case and is
satisfied that they were clarifying questions within the scope of the witness'
prior testimony. Moreover, Dr. Teer can point to no prejudice of any kind
resulting from the Hearing Officer's questioning of the witnesses.
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B. ''Reopening'' the Record
After the evidence was closed in Dr. Teer' s adjudicatory hearing, the
Board deliberated and voted to find the four violations alleged against Dr.
Teer. As the Board was deliberating on the question of sanctions and the
status of Dr. Teer's license, the Hearing Officer permitted the Board to hear
testimony from a witness who had familiarity with the Board's licensing
website and application process. Neither party objected.
Dr. Teer contends that this action by the Hearing Officer was a "gross
violation of her authority." Pet. 's memorandum at 8. The court disagrees.
Allowing the Board to consult with a staff member who could provide the
Board with accurate information as to the licensing consequences of its
potential decision, was not arbitrary and capricious. Rather, it is, in the court's
view, a reasonable exercise of the Hearing Officer's authority and
responsibility to regulate the course of the proceeding. Moreover, the parties
were offered the opportunity to ask their own questions of the witness, but
they declined to do so.
C. Bias and Lack of Im.p artiality
While the Board was deliberating as to the sanctions to be imposed on
Dr. Teer as a result of her violations and as conditions for the granting of her
license application, one Board member mistakenly referred to the Assistant
Attorney General prosecuting the case as "our counsel" with reference to the
recommendation she was making. The Hearing Officer promptly and clearly
reminded the Board that she was counsel for the Board, not the prosecuting
attorney.
Dr. Teer alleges that the Board member's confusion "clouds the entire
proceeding ..." Pet.'s Memorandum at 8. The court has reviewed the entire
record in this matter, particularly the evidentiary hearing of May 22, 2019.
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The court is satisfied that the "confusion" by a Board member was just that
"confusion" - and not evidence of bias or partiality. Furthermore, Dr. Teer
did not make any motion to have either the Board member or the Hearing
Officer address the issue of whether they were biased pursuant to 5 M.R.S. §
9063(1).
D. "Intentional" Misrepresentation
Dr. Teer maintains that the Board lacked substantial evidence in the
record to find that she "intentionally" misrepresented the status of her
veterinarian's license. In the court's view, there was ample evidence before
the Board to support the conclusion that Dr. Teer deliberately misrepresented
the status of her license by performing veterinary medical services, including
surgery, for patients, without informing their owners that she was not licensed
to perform those services. The Board was not required to accept Dr. Teer' s
explanation that she did not understand the status of her license.
E. Basis for Sanctions
Dr. Teer argues that the Board's Decision and Order should be vacated
because it did not adequately explain the reasoning behind the imposition of
particular sanctions placed upon her. Title 5 M.R.S. § 9061 required the
Board to issue a written decision that included "findings of fact sufficient to
apprise the parties and any interested members of the public of the basis of
the decision." Citing Zegel v. Bd. ofSoc. Worker Licensure, 2004 ME 31,843
A.2d 18, Dr. Teer claims that she and the public must "speculate over the
reason why the Board chose to levy these particular sanctions." Pet. 's Reply
Memorandum at 4.
While an agency needs to set forth the basis for its decision with
reasonable clarity, it does not need to state the obvious. Here, the Board has
had an on-going disciplinary involvement with Dr. Teer since at least 2014.
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There has been a lengthy history of Dr. Teer ignoring orders from the Board
and, more recently, the Superior Court. Notwithstanding her awareness of
those outstanding orders, Dr. Teer disregarded them and continued to engage
in the unlicensed practice of veterinary medicine in this State.
The Board's detailed written Decision and Order provided the factual
foundation for its rulings, including the particular sanctions it imposed. Those
factual findings themselves explain why the Board required a mental health
evaluation to ensure Dr. Teer's fitness to practice as a veterinarian. Similarly,
the reporting and continuing education requirements, as well as the practice
monitor obligations, all logically and rationally follow from the factual
findings the Board made.
The court finds no error in the manner in which the Board imposed
sanctions upon Dr. Teer.
CONCLUSION
The entry is:
Petitioner's (Dr. Teer's) Petition for Judicial Review is DENIED and
the Decision and Order of the State Board of Veterinary Medicine is
AFFIRMED.
The clerk is directed to incorporate this Order into the docket of this
case by notation reference in accordance with M.R.C' .P. 79(a).
Dated: January 21, 2020
Justice, Superior Court
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