Denham v. Delaware Board of Mental Health and Chemical Dependency Professionals

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LAURIE ANN DENHAM,
Appellant,
v. C.A. No. N17A-02-009 FWW
DELAWARE BOARD OF MENTAL
HEALTH AND CHEMICAL
DEPENDENCY PROFESSIONALS,
V\./\/VVV\/``/VV\./V
Appellee.
Submitted: August 4, 2017
Decided: November 30, 2017
On Appeal of the Delaware Board of Mental Health and Chemical Dependency
Professionals,
AFFIRMED.
OPINION AND ORDER
Gary W. Alderson, Esquire, Elzufon Austin & Mondell, P.A., 300 Delaware
Avenue, 17th Floor, P.O. Box 1630, Wilmington, Delaware 19899; Attorney for
Appellant, Laurie Ann Denham.
Zoe Plerhoples, Esquire, Deputy Attorney General, State of Delaware Department
of Justice, 820 N. French Street, Wilmington, Delaware 19801; Attorney for
Appellee, Delaware Board of Mental Health and Chemical Dependency
Professionals.
WHARTON, J.
I. INTRODUCTION
Appellant Laurie Ann Denham (“Denham”) filed a Notice of Appeal on
February 10, 2017, requesting judicial review of the January 12, 2017 order by the
Delaware Board of Mental Health and Chemical Dependency Professionals
(“Board”). Denham contends that the Board erred in revoking her professional
mental health counselor license.
ln considering this appeal, the Court must determine Whether the Board’s
decision to revoke Denham’s professional mental health counselor license is
supported by substantial evidence and free of legal error. Upon consideration of the
pleadings before the Court and the record beloW, the Court finds that there is
substantial evidence to support the Board’s ruling, and the Board did not err in
reaching its decision. Accordingly, the Board’s decision is AFFIRMED.
II. FACTUAL AND PROCEDURAL CONTEXT
Denham is a DelaWare-licensed professional counselor of mental health
(“LPCMH”).l BetWeen November 2013 and July 2015 Denham provided mental
health services to a client, A.I., at Pike Creek Psychological Center, and then at her
own practice, Touching Hearts Psychological Center.2 A Hearing Officer found
Denham violated the National Board for Certified Counselors’ Code of Ethics (“the
' See Final Board Order at 1.
2 See State’s Compl. at 1.
Ethics Code”) in providing such services. Denham appeals that finding. Denham
was previously disciplined by the Board in January 2016 for ethics violations,
including a breach of confidentiality3
ln 2013, client A.I. was referred to Denham to assess and treat A.I.’s PTSD
and anxiety. In 2014, while treating A.I., Denham began to socialize regularly with
A.I. outside of therapy. ln April 2014, Denham contacted A.l. for reasons unrelated
to therapy and asked A.l. to pray for her friend.4 The next night, at A.I.’s suggestion,
the two went out for drinks.5 The two often went out for dinner, drinks, and therapy
sessions.6 During these dinner sessions, the two would have regular conversations;
yet, Denham was paid for her professional services.7
Over the next several months, Denham frequently emailed, Facebook
messaged, and text messaged A.I. outside of therapy.8 However, between May 2014
and August 2014, Denham did not document any of A.I.’s weekly therapy sessions
in her records. Over the entire course of treatment with A.l., Denham did not
document their social communications, including their outside meetings, their text
and email messages, or social media contacts.
3 See Recommendation of Hearing Officer at 52,59.
4la’. at 53.
51d. at 53-57.
6Ia’. 53-54.
7 Ia’.
8Icz’. at 55.
In July 2014, Denham asked A.I. to follow and take pictures of the estranged
wife of Denham’s boyfriend.9 ln August of 2014, Denham scheduled a sensory
therapy session with A.l. to occur on the beach.10 Denham advised A.I. that they
would meet at 5:45; work on sensory therapy until 7:30; and “end with ‘mind cool
down’ with a glass of wine as [they] watch the sun set.”11 Denham asked A.I. to
bring the wine, and they consumed the entire bottle.12 The two often drank alcohol
during therapy sessions.13 Between May 2014 and August 2014, Denham did not
document any of A.I.’s weekly therapy sessions in her records.14 Over the entire
course of treatment with A.I., Denham did not document their social
communications, including their outside meetings, their text and email messages, or
social media contacts.15
ln January of 2015, Denham started a charity and asked A.I. to join to utilize
her photographic talents.16 A.I. agreed, took photos at events, and served as the
9 See Final Board Order at 2.
10 Tr. of Administrative Hearing before Division of Professional Regulation
Hearing Offlcer at 47-48.
11 See Final Board Order at 2.
12 Tr. at 48.
13 Ia’. at 49.
14 See Recommendation of Hearing Officer at 57. The Hearing Officer also noted a
gap in the treatment records between August of 2014 and February of 2015. A.l.
stated that “after [she] left Pike Creek, [Denham] took minimal notes on A.I. at
Wellbeing” during treatment sessions. Tr. at 88.
15 Id. at 77. Denham admitted that she erased Facebook and text messages in order
to “hide the dual relationship.” Tr. at 407.
16 Id. at 58-60.
administrator of the charity’s Facebook page. However, A.I. was not compensated
for her work.17 ln addition, at Denham’s request, A.I. photographed the wedding of
Denham’s son and a family photo shoot for Denham’s sister-in-law.18 ln April of
2015, A.I. and her husband helped Denham move, and stored some of Denham’s
furniture in their basement.19 ln May of 2015, A.I. penned a multitude of intimate
writings for Denham including a poem and Denham’s proposed eulogy.20 On July
9, 2015, Denham and A.I. met at a restaurant to discuss boundary issues.21 Denham
informed A.I. that she could not maintain the therapeutic relationship in light of
Denham’s inability to remain objective. 22 A.I. begged Denham not to abandon her,
but when A.I. became upset Denham walked out of the restaurant, leaving her.23 The
next day, Denham texted A.I., recommending A.I. find a new therapist, but did not
make a referral.24
Following the abrupt termination of the client-therapist relationship, A.I.
sought emergency treatment with her psychiatrist, Karen McCormick, followed by
a new therapist, Colleen McGinnis.25 Both McCormick and McGinnis filed
17Id. at 58-59.
181d. at 59.
19Ia’. at 60.
201a’.
21Ia'. at 61-62.
22 Id.
23 Ia’.
24 Tr. at 325-326.
25 Id.
professional complaints against Denham with the Division of Professional
Regulation (“DPR”).26 In response, Denham asked A.I. to write a letter to
McCormick and McGinnis retracting what she said about Denham.27 In September
of 20 1 5, Denham sent A.I. a Facebook message stating that Denham could only save
her license and livelihood if A.I. retracted her statements.28 A.I. declined, and on
September 18, 2015, Denham met A.I. outside of A.l.’s school and threatened to tell
people that A.I. was “‘crazy’ and needed to go to the ‘crazy house’ and that she
would lose her children.”29
In October of 2015, Denham formally responded to the DPR complaint in
writing, stating, “Other than the continuity of care and/or clinical treatment, A.I. and
I have not been in a social environment as a result of friendship or any other
relationship other than a therapeutic relationship.”30 Yet, soon thereafter, Denham
and A.I. made plans to see a favorite band together at a bar.31 At the bar a third party
took a photo of the two hugging, tagged them in the photo, and posted it on
Facebook.32 Dawn Schatz (“Schatz”), Denham’s landlord and a licensed mental
26 Id.
27 See Final Board order at 2-3.
23 Id. at 3.
29 See Recommendation of Hearing Officer at 2-3.
30 State’s Hrg. Ex. 7 at 1. Denham, however, admitted at the hearing that this was a
lie. Tr. at 399-400.
31 See Recommendation of Hearing Officer at 65.
32 Tr. at 197; see also Recommendation of Hearing Officer at 65-66; State’s Hrg.
Ex. 12 at 1-3.
health professional, saw the picture and recognized A.I. as Denham’s client.33
Schatz took a screen-shot of the photo and submitted it to DPR with a complaint
regarding Denham’s lack of professional boundaries34
In response to the Schatz complaint Denham told the DPR investigator that
she and A.I. had gone to the bar separately.35 Denham knew that this was a lie,
however.36 Denham then repeatedly asked A.l to lie to the DPR investigator about
their evening out at the bar.37 A.I. refused and the two exchanged hostile Facebook
messages, culminating in A.I. accusing Denham of blackmailing her.38 Later, A.I.
asked Denham to retrieve her furniture from A.I.’s home. Denham responded by
33 C( 55 46
accusing A.I. of being “beyond the cruelest person I know, unstable, a ticking
time bomb,” and of having a “fatal attraction” to Denham.39 Furthermore, Denham
claimed she was going to call A.l.’s principal and a crisis hotline.40 In December of
2015, Denham sent A.I. a Facebook message with a song she wrote for A.l., but
accusing A.I. of wanting to see her “hang” and purposely “throwing her under the
33 Tr. at 197-199.
34 Ia’. at 197; see also Recommendation of Hearing Officer at 65-66; State’s Hrg.
Ex. 12 at 1-3.
33 See Recommendation of Haring Officer at 65.
36 Ia’.
371a’. at65-67.
33 Id. at 68 (A.I. accused Denham of blackmail “because she was going to tell the
Board that A.I. was crazy and talks to God.”).
39 Id. at 68.
40 Id.
bus.”41 Denham’s on-again-off-again relationship with A.I. left A.I. ashamed,
fearful, embarrassed, deceived, threatened, and “gone.”42
In December 2015, the State filed a formal Complaint with the Board against
Denham alleging multiple violations of the Ethics Code.43 A Hearing Officer
conducted a hearing on the State’s Complaint on June 8, 2016 and August 8, 2016.44
The Hearing Officer determined that Denham violated Ethics Code directives 5, 6,
19-21, 44, 54, 61, 66 and 76, 45 which pursuant to Board Regulation 2.5, constitutes
41 Id.
42 Ia’. at 70.
43 State’s Ex. 1 at 1-4.
44 See Final Board Order at 1.
45 See State’s Hrg. Ex. 2 at 1-9. The Ethics Code Directives cited are:
Directive #5: Counselors shall not engage in harmful multiple relationships with
client. If a harmful multiple relationship develops in unforeseen manner, counselor
shall discuss potential effects with client and shall take reasonable steps to resolve
the situation, including the provision of referrals. This discussion is documented in
client’s record.
Directive #6: Counselors shall discuss “important considerations” to avoid
exploitation before entering into non-counseling relationship with former client.
“Important considerations” include amount of time since counseling termination,
duration of counseling, nature and circumstances of counseling, likelihood that
client will want to resume counseling in the future; and circumstances of
termination and possible negative effects or outcomes.
Directive #19: Counselors shall recognize the potential harm of informal uses of
social media and other related technology with clients, former clients, and their
families and friends. After carefully considering all of the ethical implications,
including confidentiality, privacy and multiple relationships, counselors shall
develop written practice procedures in regard to social media and digital
technology, and these shall be incorporated with the information provided to
clients before or during initial session. At a minimum, these social media
procedures shall specify that personal accounts will be separate and isolated from
any used for professional counseling purposes, including those used with
8
a violation of 24 Del. C. § 3009(a)(5).46 ln particular, the Hearing Officer found that
Denham engaged in a harmful dual relationship with her client, did almost nothing
prospective or current clients. These procedures shall also address “friending” and
responding to material posted.
Directive #20: Counselors shall not use social media sources (e.g. updates, tweets,
blogs, etc.) to provide confidential information regarding client cases that have not
been consented to by client. To facilitate secure provision of information,
counselors shall inform clients prior to or during initial session about appropriate
ways to communicate with them. Furthermore, counselors shall advise clients
about potential risks of sending messages through digital technology and social
media sources.
Directive #21: Counselors who use digital technology (e.g. social media) for
professional purposes shall limit information posted to that which does not create
multiple relationships or which may threaten client confidentiality
Directive #44: Counselors shall accurately note in client’s records all information
necessary for provision of quality services or as required by laws, regulations or
institutional procedures.
Directive #54: Counselors shall include all electronic communications exchanged
with clients including those through digital technology and social media as part of
the record, even when strictly related to clerical issues such as change of contact
info or scheduling All electronic therapeutic communications methods shall use
encryption and password security.
Directive #61: Counselors shall not misuse their professional influence or meet
their own needs at the expense of clients or their welfare. This shall include the
promotion of products developed by the counselor.
Directive #66: Counselors shall limit use of information obtained through digital
technology and social media sources (e.g. Facebook, Linkedln, Twitter, etc.) in
accordance with established practice procedures provided to clients at the initiation
of services.
Directive #76: Counselors shall discuss service termination with clients when there
is a reasonable belief that the clients are no longer benefiting from or unlikely to
benefit from future services. Counselors shall not abruptly terminate counseling
services without good cause or significant justification, and in such cases, and
counselors shall provide appropriate referrals
46 Section 3009(a)(5) states that “[a] person licensed under this chapter is subject to
the disciplinary sanctions set forth in § 3011 of this title if, after a hearing, the
9
to resolve the “harmful multiple relationship” she created, and then “threatened to
use personal and confidential information gained through therapy. . .to blackmail A.I.
in order to save herself.”47 The Hearing Officer also found that Denham “exploited
[A.l.] through scare tactics” during the DPR investigation;48 did not document the
use of social media with A.I.; had no policies regarding social media; did not
consider the ethical implications of using social media to communicate with A.I.;49
and did not accurately maintain A.I.’s treatment records.50 The Hearing Officer
further concluded that the record [was] replete with evidence of [Denham] misusing
her professional influence to meet her own needs at A.l.’s expense and welfare.
As a result of the violations, the Hearing Officer recommended Suspending
Denham’s license for three years with the suspension stayed after six months for
three years’ probation conditioned on Denham: (1) entering the Delaware
Professionals’ Health Monitoring Program; (2) obtaining an LPCMH to act as her
supervisor; (3) creating and adhering to a professional development plan; (4)
completing continuing education credits in ethics, the use of social media, and
boundaries; and (5) paying a $1,000.00 fine.51
Board finds that the licensee has: Violated a provision of this chapter or a
regulation promulgated by the Board under this chapter.”
47 See Recommendation of Hearing Officer at 70-73.
48 Id. at 74.
49 Ia’. at 74-76.
5OIa’. at 77.
31Ia’. at 83-84.
10
The parties were given twenty days from the date of the Hearing Officer’s
proposed order to submit written exceptions, comments, and arguments concerning
the conclusions of law and recommended penalty.52 Denham did not submit
anything.53 The State, however, submitted written exceptions and attended the
Board’s meeting to argue for more significant discipline than the Hearing Officer’s
recommendation.54 In particular, the State argued that Denham exploited,
manipulated, and used a vulnerable client, attempted to place blame for her own
misconduct on that client, and lied to DPR investigators during the course of the
investigation55
After deliberating, the Board voted to affirm the Hearing Officer’s
recommended conclusions of law, but amended the recommended discipline.56
Based upon Denham’s pattern of unethical behavior, failure to submit required
reports, and overwhelming egregious conduct the Board determined the
recommended discipline was too light and unanimously voted to revoke Denham’s
license.57
III. THE PARTIES CONTENTIONS
521d. at 84.
53 Final Board Order at 4-5.
54 Ia’. at 5.
55 Ia’.
56 Id.
57 Id.
11
Denham contends that she was not afforded due process because she was
denied a meaningful hearing.58 In particular, Denham argues that the Hearing
Officer committed legal error when she (1) declined to rule on Denham’s objection
to the State’s proffer of Dawn Schatz as an expert;59 (2) permitted Schatz to offer
expert opinion testimony,60 (3) considered Denham’s past discipline as an
aggravating factor;61 and (4) failed to afford Denham proper deference as a pro se
litigant.62
ln response, the Board argues that Denham had the opportunity to be heard
and to present testimony during the hearing and therefore was afforded due
process.63 ln particular, the Board argues that Schatz was properly allowed to give
limited testimony as a mixed fact/expert witness regarding the basis for her
professional complaint;64 Denham was afforded significant deference as a pro se
litigant;65 the Board properly considered Denham’s prior discipline as an
aggravating factor;66 the Board did not require expert testimony to find violations of
55 Appellant’s Opening Br., D.I. 11 at 11.
591d. at 13.
6610’. at 13-15.
611a’. at 21-22.
621a’. at 22-23.
63 Appellee’s Answering Br., D.I. 13, at 14-15.
64 Id. at 15-19.
65 Id. at 20-22.
66Id. at 22-25.
12
the ethics code directives;67 and there is substantial evidence to support the Board’s
finding that Denham violated the ethics code directives.68
IV. STANDARD OF REVIEW
The Administrative Procedures Act (“APA”) vests this Court with jurisdiction
over appeals from a final order of the Board.69 The Board’s final order must be
affirmed so long as it is supported by substantial evidence and free from legal error.70
Substantial evidence is that which a reasonable mind might accept as adequate to
support a conclusion.71 While a preponderance of evidence is not necessary,
substantial evidence means “more than a mere scintilla.”72 The Court takes due
account of the Board’s specialized competence and the purpose of the law under
which the Board acted,73 and does not weigh the evidence, determine credibility or
draw its own factual findings or conclusions.74
67Icl. at 25-29.
681a’. at 29-37.
69 See 29 Del. C. §§ 10142, 10102(4).
70 Conagra/Pilgrim ’s Pria’e, Inc. v. Green, 2008 WL 2429113, at *2 (Del. June 17,
2008); Jora'an v. Ba'. ofPension Trs. of Del., 2004 WL 2240598, *2 (Del. Super.
Sept. 21, 2004); Kl``ng v. Ba’. ofPensl'on Trs. ofDel., 1997 WL 718682, at *3-’1‘4
(Del. Super. Aug. 29, 1997).
71 Lehto v. Ba’. OfEa’uc. of Caesar Roa’ney Sch. Dist., 962 A.2d 222, 225-226 (Del.
2008).
72 Breea’l'ng v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988); see also
Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
73 29 Del. C. §10142(d).
74 Janaman v. New Castle Cnly. Ba'. Oan’justment, 364 A.2d 1241, 1242 (Del.
Super. Ct. Aug. 19, 1976).
13
Questions of law are reviewed de novo.75 lf the Board’s findings and
conclusions are sufficiently “supported by the record and are the product of an
orderly and logical deductive process,” its decision will be affirmed.76
V. DISCUSSION
A. The Board’s Decision is Supported by Substantial Evidence Because a
Reasonable Mind Might Accept That Denham Violated the Ethics Code
Directives.
The Board relied upon the following facts to reach the decision to revoke
Denham’s license: Denham engaged in a harmful dual relationship with her client;
Denham did nothing to address the “harmful multiple relationship” she created;
Denham “threatened to use personal and confidential information gained through
therapy...to blackmail A.I. in order to save herself;”77 Denham “exploited [A.l.]
through scare tactics” during the DPR investigation;78 Denham did not document the
use of social media with A.I.; Denham had no policies regarding social media;
Denham did not consider the ethical implications of using social media to
communicate with A.I.;79 Denham did not accurately maintain A.l.’s treatment
records;80 and [Denham] misused her professional influence to meet her own needs
75 Anchor Motor Freight v. Cz'abattom``, 716 A.2d 154, 156 (Del. 1998); see also
Wara’ v. Dep ’t of Elections, 2009 WL 2244413, at *1 (Del. Super. July 27, 2009).
76 Mentor Graphics Corp. v. Shapiro, 818 A.2d 959, 963 (Del. 2003).
77 See Recommendation of Hearing Officer at 70-73.
73 Ia’. at 74.
79Ia’. at 74-76.
811 Ia’. at 76.
14
at A.l.’s expense and welfare. Additionally, based upon Denham’s pattern of
unethical behavior, failure to submit required reports, and overwhelming egregious
conduct the Board determined the Hearing Officer’s recommended discipline was
81 Based on those
insufficient and unanimously voted to revoke Denham’s license.
facts, the Court finds that there is substantial, if not overwhelming, evidence to
conclude that Denham violated the Ethics Code Directives and that license
revocation was appropriate
B, The Hearing Officer Committed No Legal Error in Reaching Her
Decision.
Denham asserts that the Hearing Officer committed legal error when she (1)
permitted Schatz to offer expert opinion testimony;82 (2) declined to rule on
Denham’s objection to the State’s proffer of Dawn Schatz as an expert;83 (3)
considered Denham’s past discipline as an aggravating factor;84 and (4) failed to
afford Denham proper deference as a pro se litigant.85
1. The Board Did Not Require Expert Testimony to Find Violations of
the Ethics Code Directives, and, Furthermore, the Hearing Officer
Properly Allowed Schatz to Give Testimony as a Mixed Fact/Expert
Witness.
51 See Final Board Order at 5.
32 See Recommendation of Hearing Officer at 7-9.
33 Ia’. at 7.
34 Ia’. at 15-16.
85Ia’. at 16-17.
15
A Board’s review of licensing issues may rely on expert testimony, however,
not all Board decisions require expert testimony in order to establish the standard of
care.86 A Board may use its institutional experience or administrative expertise to
evaluate evidence,87 including a determination as to whether a licensee’s conduct
violates its laws.88 Accordingly, the State was not obligated to present expert
testimony to establish Denham’s violations of the Ethics Code, nor did the Board’s
finding of violations of the Ethics Code Directives require expert testimony, Rather,
the Board correctly drew upon its institutional expertise, to the extent any expertise
was even necessary, to accept the conclusions of law and substantiate the
violations.89 Therefore, the Board did not commit legal error when it found Denham
violated the Ethics Code Directives without the use of expert testimony,
The Court also finds that the Hearing Officer did not commit legal error
when she allowed Dawn Schatz to give limited testimony as a mixed fact/expert
witness. Pursuant to the APA and 24. Del.C. § 3012(b) administrative hearings are
36 Bilski v. Ba’. OfMea’. Licensure and Discl'pline of Delaware, 2014 WL 3032703
(Del. Super. Ct. June 30, 2014), reargument denied, 2014 WL 5282115 (Del.
Super. Oct. 16, 2014), ade, 115 A.3d 1214 (Table) (Del. 2015).
37 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (citation omitted).
33 See e.g., Jain v. Del. Ba’. OfNursz``ng, 2013 WL 3389287 (Del. Super. Ct. Feb 13,
2013), aff’d, 72 A.3d 501 (Table) (Del. 2013); Frazer v. Del. Bd. OfNursing, 2016
WL 6610320, at *3-4 (Del. Super. Ct. Nov. 9, 2016).
36 lt strikes the Court that little expertise was necessary to apply the facts as the
Hearing Officer found them to the plain language of the Ethics Code.
16
to be conducted informally, and without the use of rules of evidence.90 Schatz was
proffered as a mixed fact/expert witness and offered opinion testimony based on
her professional background Schatz’ opinion, however, was limited to her
explanation as to why she filed a complaint with DPR; did not address specific
violations of the Ethics Code; and played no role in the Hearing Officer’s
conclusions of law. Therefore, because of the limited nature of Schatz’ expert
testimony, it was not legal error for the Hearing Officer to allow Schatz to be
proffered as a mixed fact/expert witness. The Court also does not find that the
Hearing Officer committed legal error when she reserved ruling on Schatz’ status
as an expert witness. Denham neither cites, nor provides evidence to support this
proposition and the Court finds no such evidence.
2. The Board Did Not Commit Legal Error When It Considered
Denham’s Past Discipline as an Aggravating Factor.
The Board may impose a range of sanctions where it finds that a licensee has
engaged in a condition or violation that constitutes grounds for discipline.91 The
record must clearly show the basis on which the administrative agency did act in
order that its exercise of discretion may be properly reviewed.92 Denham argues
96 Pursuant to 29 Del. C. § 10161(a)(26), the Board is governed by the procedures
of the APA; per 19 Del. C. § 10161(e), “[a]ll hearings shall be informal without
use of rules of evidence.”
9124Del. C. § 3011.
92 Spear v. Blackwell & Son, Inc., 221 A.2d 52, 55 (Del. Super. Ct. June 21, 1966).
17
that prior disciplinary action was not addressed in the Complaint or submitted into
evidence at the hearing, therefore it was legal error for the Board to consider it.
However, there is no requirement that the record be comprised solely of facts
referenced in the Complaint or presented at a hearing.93 Therefore the Board acted
properly and did not commit legal error when it considered Denham’s prior
discipline as an aggravating factor.
3. Denham Was Afforded Proper Deference as a Pro Se Litigant and
Due Process Under the APA and Board’s Statutes.
Courts will give pro se litigants “some degree of latitude in preparing and
presenting their cases.”94 However, pro se litigants are not held to a different set of
procedural rules than other parties.95 Denham argues that she was held to a higher
standard than routinely applied to pro se litigants, but provides no evidence to
support that contention. Rather, the record reflects that she was allowed leeway in
her testimony and questions to State’s witnesses,96 the Hearing Officer explained
the procedures of the hearing to her,97 and the Hearing Officer attempted to ensure
93 29 Del. C. § 10127: “With respect to each case, all notices, correspondence
between the agency and the parties, all exhibits, documents and testimony admitted
into evidence and all recommended orders, summaries of evidence and findings
and all interlocutory and final orders of the agency shall be included in the
agency’s record of the case and shall be retained by the agency.” See also Wilson
v. Elliott, 1985 WL 21123, at ’1‘2 (Del. Chan. May 22, 1985).
94 Buck v. Cassia’y Painting, Inc., 2011 WL 1226403, at 2* (Del. Super. 2011).
95 Draper v. Mea’. Ctr. OfState, 767 A.2d 796, 799 (Del. 2001).
96Tr.at111,114,116,121,128-133,140,146,150-151, 376.
97 Ia’. at 4, 43-44.
18
that her exhibits were presented in full to establish a clear record.98 Therefore, the
Court finds that Denham was afforded proper deference as a pro se litigant and no
legal error occurred.
Denham’s claim that her due process rights were violated because the State
did not provide her with its evidence and exhibits before the hearing is also
unavailing The APA does not provide a licensee facing discipline the absolute
right to discovery or to depositions99 To establish a due process violation,
Denham must demonstrate that (1) she was not adequately informed of the charges
against her, and (2) the lack of that information prejudiced her ability to defend
against the charges.100 Denham, however, fails to cite to the record or to any
authority which would establish a due process violation. Moreover, the record
demonstrates that Denham was clearly informed of the nature of the charges
against her. The Court finds the Denham was afforded due process under the APA
and the relevant Board rule and statues. No legal error occurred.
VI. CONCLUSION
93 Ia’. at 109-111, 123, 149-150, 152; see also Recommendation of Hearing officer
at 37.
99 Rooney v. Del. Ba’. OfChiropractic, 2011 WL 2088111, at 4* (Del. Super. Ct.
Apr. 27, 2011) (citing Kotler v. Bcl. ofMea’. Practice, 1883 WL 54587, at *4 (Del.
Super. Ct. Jan. 19, 1993)).
1661a’. at 5.
The Court finds that the Board’s decision was supported by substantial
evidence, was the product of an orderly and logical deductive process, and was free
from legal error. Therefore, the decision of the Board is hereby AFFIRMED.
IT IS SO ORDERED.
Ferris W. Wharton, Judge
20
The Court finds that the Board’s decision was supported by substantial
evidence, was the product of an orderly and logical deductive process, and was free
from legal error. Therefore, the decision of the Board is hereby AFFIRMED.
IT IS SO ORDERED.
Ferri/.{W. Wh%on, fudge
20