A Species Unto Themselves: Professional Disciplinary Actions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 71 No. 6 Pg. 29-50 |
| Pages | 29-50 |
| Publication year | 2002 |
71 J. Kan. Bar Assn. 6, 29-50 (2002). A Species unto themselves: Professional disciplinary actions
71 J. Kan. Bar Ass'n, June/July 2002, 29-50 (2002)
Introduction
Administrative law has flourished in the last fifty years because of the proliferation of governmental regulatory agencies that license and regulate our business and professional lives. In Kansas, a person can't cut hair, trim beards, give legal advice, perform surgery, clean teeth, embalm bodies, fill prescriptions, neuter cats, design buildings, or pierce bodies without getting the State's blessing. This means that an applicant for such sanction needs to satisfy a regulatory body that he or she has satisfied certain prerequisites designed to ensure a minimum level of competency. Once permission is secured, a licensee must then comply with rules by the agency or risk losing the privilege to practice that profession. The purpose of this article is to shepherd attorneys through the shoals of professional licensure and disciplinary actions so that they can stand at the ready when that anxious barber, funeral director, nurse, tattoo artist, or doctor comes through the door.
Purpose of Professional Licensing Agencies
The practice of a regulated profession is considered a privilege and not a natural right, one that the legislature may provide for the granting and disciplining of licenses "according to its own good will and pleasure."[2] As the Kansas Supreme Court explained in relation to the practice of the healing arts, the purpose of a professional licensing act is to insure that only qualified practitioners serve the public:
... the protection of the public against unprofessional, improper, unauthorized and unqualified practice of the healing arts. The goal is to secure to the people the services of competent, trustworthy practitioners. The act seeks to do this through licensure. The licensing by the state, granted only after minimal standards of proficiency are met, amounts to the state's recognition of the licentiate as a qualified practitioner. The continued holding of the license may be taken by the public as official indication those standards are being maintained. The object of both granting and revoking a license is the same - to exclude the incompetent or unscrupulous from the practice of the healing arts.[3]
This same sentiment has been expressed by the Kansas appellate courts in relation to the licensure of psychologists,[4] dentists,[5] pharmacists,[6] and real estate brokers.[7] Even in the absence of an explicit statement, counsel should assume that protection of the public is the purpose of other licensed professions.
Authority of Professional Licensing Boards
Administrative agencies are creatures of statute whose power is dependent upon authorizing statutes; consequently, any exercise of authority claimed by a licensing agency must derive from the statutes.[8] A professional licensing board may exercise only those powers expressly conferred by statute or those necessarily implied.[9] General or common-law power, such as the power to hear and decide equitable claims,[10] may not be exercised by an administrative agency.[11]
These often repeated and well-established principles of law guide a professional licensing board in fulfilling its statutory responsibilities. Nevertheless, when acting with the intention of complying with these principles, a board may be subject to a judicially created "exception," as happened with the Kansas Dental Board. Fifteen years after revocation of his license, a dentist filed a motion with the Board to reinstate his license. The Board denied the motion, holding that it did not have express statutory authority to reinstate a license previously revoked. Notwithstanding the "agency-as-a-creature-of-statute" principle concerning the authority of an administrative agency, the court found implied authority for license reinstatement by the agency:
Does the failure to include comparable [reinstatement authority] language in the Kansas Dental Act equate to a legislative intent that a dentist having fallen from professional grace should be forever precluded from seeking redemption from his or her peers? We think not. There is nothing in common human experience or the record which leads us to the conclusion that the legislature, by omitting a specific time limitation on when dentists could seek reinstatement of a previously revoked license, intended to permanently bar such dentists from the profession.[12]
Thus, seemingly acting more in accordance with principles of equity than of law, the court concluded that the Board did have the authority to reinstate a license it had previously revoked. Pitts v. Kansas Dental Board may be an anomaly or it may reflect a willingness on the part of a court to consider basic fairness issues.
Unlawful Delegation of Legislative Authority
Article 2, Section 1 of the Kansas Constitution provides that legislative power "shall be vested in a house of representatives and senate." This provision is understood as precluding the Legislature from delegating its law-making authority to an administrative agency.[13] Nevertheless, "the Legislature may enact general provisions for regulation and grant to state agencies certain discretion in filling in the details, provided the Legislature fixes reasonable and definite standards to govern the exercise of such authority."[14] This principle is liberally construed when an unlawful delegation challenge of "unfettered discretion"[15] is brought in relation to statutes that are directly implemented by professional licensing boards.
A claim of unlawful delegation was examined in Vakas v. Kansas Board of Healing Arts,[16] in which a physician sought reinstatement of his formerly revoked license to practice medicine and surgery. He claimed the reinstatement statute did not establish standards or guidelines to govern the Board's discretion in determining whether to reinstate a license to practice medicine, and thus ran afoul of the unlawful delegation provision in the Kansas Constitution. The court noted, however, that standards may be implied from the statutory purpose and that it subscribed to the modern trend of requiring "less detailed standards and guidance to the administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems."[17] The court found that the objective in determining whether to reinstate a license is the same objective in deciding whether to grant a license initially - to exclude the incompetent and unscrupulous from the practice of healing arts:
When the Healing Arts Act is read in its entirety, the legislation contains sufficient guidance from the legislature to enable the Board to exercise its discretion in determining whether to reinstate an individual to the practice of medicine and surgery. The legislature did not improperly delegate its power to the Board by failing to set out adequate guidance in the specific statute relating to reinstatement.[18]
A different result occurs when an unlawful delegation claim is brought in relation to authority purportedly delegated to a private non-governmental entity. There, "a strict rule is applied"[19] against delegation. Gumbhir v. Kansas State Board of Pharmacy (Gumbhir I)[20] typifies this variety of attempted delegation of authority. The primary attack was launched against a statute in the Kansas Pharmacy Act that required applicants for a license to graduate from a school accredited by a private association. The Court found the statute an unconstitutional delegation of legislative authority:
The wording of this statute and the interpretation placed upon this provision by the Pharmacy Board has the effect of delegating to [the American Council on Pharmaceutical Education] through its accreditation process the standards of education required before registration is permitted. ACOPE is not a governmental agency. It is a private nonprofit association having full control over its own accreditation requirements. . . . The [statutory] provision which restricts approval of the necessary educational qualifications for examination and registration of pharmacists in the State to those individuals who have graduated from schools of pharmacy accredited by the American Council on Pharmaceutical Education, a non-governmental agency, is constitutionally impermissible.[21]
An otherwise unconstitutional delegation of authority may be "cured" if a statute or administrative regulation properly adopts a private entity's code or standards by reference. This means that an identified document, as in effect on a date certain, has been specifically adopted within a statute or regulation.[22] In this manner the requirements of a private entity as of a specified date are solidified in the statute or regulation. Any change in the private entity's requirements would thus necessitate a modification of the statute or regulation to reflect a newer effective date of the more current requirements. This ensures that a statute or agency regulation only adopts, and thus gives the force and effect of law to, requirements that are in existence at the time and not future requirements. Ultimate authority thus remains with the government and is not unlawfully delegated to a private entity.[23]
Discerning whether authority has been unlawfully delegated to a non-governmental entity through failure of an agency to adopt a regulation that incorporates outside material...
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