National Regulatory Board Seminar Covers Sanction Issues and NC Board Case

Nahale Kalfas and Johnny Loper recently attended and participated in the Federation of Associations of Regulatory Boards’ (FARB) annual regulatory law seminar in St. Louis, Missouri. Kalfas is NCBA Administrative Law Section Secretary, General Counsel for the NC Board of Examiners for Speech and Language Pathologists and Audiologists, and legal counsel to the Council of State Governments. Loper is a partner with Womble Bond Dickinson. FARB is a not-for-profit corporation formed in 1974 to promote public protection and provide a forum for information exchange for associations of regulatory boards and their affiliate stakeholders.

Kalfas and Loper, along with Arizona Assistant Attorney General Mona Baskin, participated in a panel presentation on “Probation: Sanction Options & Consequences.”

Among other subjects, the panel provided information and led discussion concerning the following topics:

  • The range of sanction options available to licensing boards after contested case hearings;
  • Whether a board’s sanctions options are absolutely circumscribed by statute;
  • Are civil penalties and fines always available?
  • Can the board make an adverse finding but withhold imposition of the judgment/penalty?
  • Can a board require a licensee to perform public or charity service? Undertake remedial or educational training?  Undergo drug testing?
  • Are the same sanctions options available in a settlement agreement context?
  • Can a licensee on probation be “in good standing”?
  • Does revocation divest your board of any further jurisdiction over the licensee?  Is revocation always permanent?
  • What information is available to the public about investigated and disciplined licensees?

Loper also presented a case study on a matter in which he assisted the North Carolina Medical Board in a case on appeal. The central issue in that appeal was whether the board retained jurisdiction to discipline an ophthalmologist who voluntarily surrendered his license after violating the Medical Practice Act and board rules while actively practicing.

The physician at issue originally was charged by the board with sexually harassing his female employees. While those charges were pending, the Medical Board received information indicating that the physician also might be practicing while impaired. When he subsequently tested positive for cocaine, the physician immediately surrendered his license. He signed a surrender form which contained language indicating that the surrender of his license “does not preclude the Board from issuing charges [against the physician] at a later date.” When the board in fact did issue amended charges against the physician, the physician filed a motion seeking dismissal of all charges. He argued that because he was no longer a licensee, the Board no longer had jurisdiction over him.

The motion to dismiss was denied by the Medical Board. Rather than continuing to litigate his disciplinary case before the board, the physician filed a motion for declaratory judgment and for an injunction in Superior Court. When the Superior Court granted summary judgment to the physician, the Board appealed. After briefing was complete, and after oral argument, the physician died. The appeal was dismissed as moot, and the lower court’s grant of summary judgement was reversed.

Loper’s presentation discussed the briefing at the North Carolina Court of Appeals; how such briefing is instructive on the issue of licensing board jurisdiction; and, whether and how such jurisdiction can be affected by a licensee voluntarily surrendering his or her license.