Marina Narowetz v. Board of Dental Practice

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 46Docket: Ken-20-308
Argued: July 14, 2021
Decided: September 28, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
MARINA NAROWETZ
v.
BOARD OF DENTAL PRACTICE
CONNORS, J.
[¶1] Marina Narowetz appeals from a judgment of the Superior Court
(Kennebec County, Stokes, J.) affirming a decision of the Board of Dental
Practice sanctioning her for unprofessional conduct for her failure to timely
provide patient medical records. See M.R. Civ. P. 80C. Because the Board issued
factual findings that were insufficient to permit judicial review, we must
remand the matter to the Board; and because the same assistant attorney
general who advised the Board acted in an advocate capacity contrary to
5 M.R.S. § 9055 (2021), we remand for the Board to conduct a new evidentiary
hearing.
2
I. BACKGROUND1
[¶2] Narowetz is a licensed dentist in Maine and has owned a dental
practice in Old Orchard Beach since 2011. On September 17, 2018, she
provided a free dental consultation for a patient.
A. The Record Request
[¶3] On September 25, 2018, attorney Neil Weinstein, who represented
the patient, sent a request to Narowetz by mail for the patient’s dental records.
The record request was returned by mail and received by Weinstein’s office on
October 10, 2018. On that same day, Weinstein hand-delivered the envelope
containing the request to Narowetz’s office. The envelope was again refused
and was mailed back to Weinstein’s office.
[¶4] Weinstein then filed a complaint with the Board on
October 23, 2018, alleging that Narowetz had refused a request for patient
Because, as discussed infra, the Board did not make sufficient factual findings, we draw the
1
factual background from the undisputed facts and the procedural record. See D’Alessandro v. Town
of Harpswell, 2012 ME 89, ¶¶ 2, 8, 48 A.3d 786; Fair Elections Portland, Inc. v. City of Portland,
2021 ME 32, ¶ 11, 252 A.3d 504.
3
records in violation of 32 M.R.S. § 18325(1)(E) (2021)2 and the Board rule
regarding record production.3
B. The Board’s Review of the Complaint
[¶5] The record reflects that the Board held a public meeting at which
Assistant Attorneys General Andrew Black and Adria LaRose were present and
for which Narowetz had received notice. At the meeting, the Board considered
whether to dismiss the complaint, offer a consent agreement, or set the matter
for a hearing.4 A Board member made an initial presentation of the complaint
against Narowetz to the rest of the Board.5 The Board flagged Narowetz’s case
2 Title 32 M.R.S. § 18325(1)(E) (2021) provides: “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 or
authorized by the board[.]”
3 The Board rule provided:
The failure of a dentist to surrender a copy of a patient’s records upon appropriate
request by the patient or the patient’s agent and payment of a reasonable duplication
cost. This rule does not require a dentist to surrender original patient records. The
records should be released within five business days of receipt of the request and
shall be released within 21 calendar days of receipt of the request. Dentists shall
maintain patient treatment records for a minimum of seven (7) years after the date
on which the last dental services were provided to the patient.
02-313 C.M.R. ch. 9, § II(K) (effective June 27, 2010) (currently located at 02-313 C.M.R. ch. 12,
§ I(G)(3)(a) (effective Apr. 5, 2020); the substance of the rule has not materially changed).
No rule promulgated by the Board of Dental Practice pursuant to the Administrative Procedure
4
Act, 5 M.R.S. §§ 8001-11008 (2021), specifies the Board’s process for reviewing complaints.
That Board member recused himself from participating in Narowetz’s subsequent hearing and
5
did not take part in the Board’s final decision.
4
for follow up with the Office of the Attorney General. Black was acting in an
advisory capacity to the Board at this time.
[¶6] At that meeting, the Board voted to offer Narowetz a consent
agreement “in order to resolve the complaint.” The draft consent agreement
sent to Narowetz included a space for LaRose to sign on behalf of the Attorney
General’s Office. The proposed consent agreement included sixteen findings of
fact; stated that Narowetz admitted to the violation; and included as discipline
a warning, a civil penalty of $1,500, and the requirement that Narowetz
complete three hours of continuing education pertaining to ethics in the dental
profession.
[¶7] Narowetz rejected the consent agreement and requested that the
Board reconsider its disposition of the complaint. The Board, at Narowetz’s
request, reviewed Narowetz’s case again in a meeting on March 15, 2019, with
Black and LaRose in attendance and Black advising the Board. The Board
arrived at the same result. Another consent agreement was then offered, this
time with Black listed as a signatory on behalf of the Office of the Attorney
General.6
6This Board meeting was held in open session but with no opportunity for Narowetz’s counsel to
participate.
5
[¶8] Narowetz again rejected the consent agreement, and the matter was
scheduled for an evidentiary hearing before the Board. In the notice of hearing,
the Board informed Narowetz that it had “contracted with a Hearing Officer
who [would] advise the Board at the hearing and rule on procedural issues
prior to hearing.” The notice also stated:
Pursuant to 5 M.R.S. § 9054(5), Board staff with the assistance of
an assistant attorney general will facilitate the presentation of this
matter to the Board by offering relevant evidence, examining
witnesses, filing appropriate motions, and responding to motions
and objections of the applicant.
[¶9] Immediately after receiving the notice of hearing, Narowetz filed a
motion arguing that the Board could find that she had engaged in
unprofessional conduct only if it made that finding by clear and convincing
evidence. Black submitted an opposition to the motion on behalf of “the
[p]rosecution,” arguing that only a finding by a preponderance of the evidence
was required. The hearing officer ruled on this motion after a pre-hearing
conference and explained that he would “instruct the Board to apply the
standard of ‘proof by a preponderance of the evidence.’”
[¶10] The Board held its evidentiary hearing on June 14, 2019. At the
start of that hearing, the hearing officer confirmed that he was “authorized to
administer oath[s] and affirmations[,] to rule on any non-dispositive motions
6
[and] any objections to admissibility of evidence, . . . to regulate the course of
the hearing[,] and to address any procedural matters that might arise . . . [and]
serve as . . . the Board’s legal advisor during the proceedings.” Placing his
previous ruling on the record, the hearing officer stated, “The State is not
technically a party to the matter, but having assumed the role of a moving party
on behalf of Board staff, the burden of proof at hearing is upon the State in the
person of the Assistant Attorney General.” The presiding officer thereafter
referred to Black and the prosecution as “the State.”
[¶11] At the start of the hearing, the Board ruled on a motion to dismiss
previously filed by Narowetz, challenging the overlapping roles undertaken by
the assistant attorneys general as violations of her right to due process and of
sections of the Maine Administrative Procedure Act, including 5 M.R.S. § 9055.
The Board denied the motion.
[¶12] During the evidentiary hearing, Black, with the assistance of a third
assistant attorney general, presented the case that Narowetz had engaged in
unprofessional conduct. Black submitted evidence, conducted direct and
cross-examination, and made opening and closing arguments.7 Narowetz was
7In the Board’s subsequent written decision, it stated that the “Assistant Attorneys General
undertook to present evidence on behalf of the Board’s Staff, volunteering as the moving party to
7
represented by her own counsel, who presented evidence through direct and
cross-examination in her defense and also made opening and closing
arguments.
C. The Board’s Decision and Subsequent Petition for Review
[¶13] In its written decision, the Board found that Narowetz had engaged
in unprofessional conduct as defined by Board rule, thereby violating 32 M.R.S.
§ 18325(1)(E). The Board imposed the following sanction:
A REPRIMAND; completion of continuing education courses of
three (3) hours in ethics, and three (3) hours in record keeping, to
be pre-approved by the Board’s Complaint Officer and to be
completed within ninety (90) days of the date of this decision and
order, and not to be applied toward the biennial continuing
education requirement; a civil penalty of $1,500, plus the cost of
hearing not to exceed $3,000, both to be paid within ninety (90)
days of the date of this decision and order; and a period of
probation of five (5) years with the condition that the Licensee
refrain from violation of the Dental Practice Act.
[¶14] Narowetz filed in the Superior Court a petition for judicial review
of final agency action pursuant to Rule 80C, along with three independent
claims, seeking a declaratory judgment, injunctive relief, and a stay of the
sanctions against her. She subsequently filed a motion to take additional
evidence to demonstrate bias on the part of three individual board members,
shoulder the burden of proof by a preponderance concerning the basis for imposing discipline alleged
in the Notice of Hearing, and the hearing officer instructed the Board accordingly.”
8
as well as additional evidence regarding “procedural irregularities,” including
“Assistant Attorney General Black acting as the investigator, counsel to the
Board, and prosecutor in [the] case.”
[¶15] In a written order disposing of all pending motions, the court
granted the Board’s motion to dismiss Narowetz’s independent claims, denied
Narowetz’s motion to stay sanctions, and denied her motion to take additional
evidence. In a judgment entered on November 12, 2020, the court upheld the
Board’s decision. Narowetz timely appealed. See 5 M.R.S. § 11008 (2021);
M.R. App. P. 2B(c).
II. DISCUSSION
A. The Board’s Factual Findings
[¶16] “When the Superior Court acts in an intermediate appellate
capacity pursuant to M.R. Civ. P. 80C, we review the administrative agency’s
decision directly for errors of law, abuse of discretion, or findings not
supported by substantial evidence in the record.” Doane v. Dep’t of Health
& Hum. Servs., 2021 ME 28, ¶ 15, 250 A.3d 1101 (quotation marks omitted).
[¶17] “[I]t is an indispensable prerequisite to effective judicial review
that an agency’s decision set forth the findings of basic fact as well as the
conclusions of ultimate fact and conclusions of law derived therefrom.” Gashgai
9
v. Bd. of Registration in Med., 390 A.2d 1080, 1085 (Me. 1978). “Recitation of
the parties’ positions or reiterations of the evidence presented by the parties
do not constitute findings and are not a substitute for findings.” Fair Elections
Portland, Inc. v. City of Portland, 2021 ME 32, ¶ 37, 252 A.3d 504 (quoting
Christian Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 7,
769 A.2d 834).
[¶18] We have held that “[w]here express findings of fact are necessary
these findings must at least state the ultimate facts which are essential to an
administrative determination, and without such a finding the finding of the
basic or evidentiary facts may be deemed insufficient.” Cumberland Farms
N., Inc. v. Me. Milk Comm’n, 234 A.2d 818, 820 (Me. 1967) (quotation marks
omitted). The ultimate facts alone, however, are not enough; “[a] mere finding
of ultimate facts, a finding solely in terms of the statute, or the statement of a
conclusion, without a finding of the basic or underlying facts on which the
administrative agency deems such ultimate fact or conclusion to rest, is, as a
general proposition, regarded as insufficient to support a determination.” Id.(quotation marks omitted).
[¶19] In its written decision, the Board’s factual discussion begins with
the caption “Review of Facts,” followed by subsections with captions such as:
10
“Licensee’s Original Testimony,” “Bissonnette Testimony,” and “Licensee’s
Corrected Testimony.” The Board never makes clear in its decision which parts
of this testimony it credited and which it did not.
[¶20] By merely summarizing the testimony, the Board did not make
factual findings. The Board’s decision and review of the facts allows for
multiple interpretations of events, including whether, and to what extent,
Narowetz attempted to deceive the Board. For example, the Board did not
make a finding as to whether Narowetz knew that she received a record request
containing a patient release and decided to ignore it, or whether she genuinely
believed that the mail was related to a separate litigation matter. Although
either explanation of her behavior might constitute a violation of the Board
rule, one explanation of Narowetz’s behavior may merit a more serious
sanction than the other.8
[¶21] This omission in the Board’s written decision is exacerbated by a
lack of explanation as to why the Board imposed the sanction that it did—a
The Board’s deliberations suggest that the sanction imposed was based in part on a finding that
8
Narowetz acted dishonestly and deliberately misled the Board during the hearing. But “an agency’s
action should be reviewed based upon what it accomplishes and the agency’s stated justifications,”
not a review of the agency’s deliberations. Kan. State Network, Inc. v. Fed. Commc’n Comm’n,
720 F.2d 185, 191 (D.C. Cir. 1983); see also Widewaters Stillwater Co. v. Bangor Area Citizens
Organized for Resp. Dev., 2002 ME 27, ¶¶ 9-12, 790 A.2d 597 (rejecting the proposition that
statements in the record made by individual board members reflecting their individual opinions as
to why they were voting as they did were sufficient findings of fact because those statements did not
represent the collective judgment of the agency).
11
sanction substantially more severe than those contained in the proposed
consent agreements. While one might speculate that the sanction was based on
a factual conclusion that Narowetz had engaged in a cover-up of her failure to
timely produce the records, continuing through her testimony at the hearing,
the decision simply states, “At [the] hearing, Dr. Narowetz was not fully truthful
in her initial sworn testimony about when she received the request for records,
and about her involvement in the preparation of witness statements, but
returned to the witness chair to correct it.”
[¶22] Because the Board did not make sufficient factual findings, we are
unable to properly review its decision, requiring us to remand the matter for
the Board to articulate its findings and the basis for the sanction it imposed. See
Christian Fellowship & Renewal Ctr., 2001 ME 16, ¶ 19, 769 A.2d 834. Narowetz,
however, raises additional claims that, if meritorious, would also require a new
evidentiary hearing. Five of these claims we may dispose of summarily.9 Her
remaining argument, however, has merit.
9 First, Narowetz argues that the hearing officer lacked the authority to provide legal advice to
the Board. But she did not preserve this argument by raising the issue before the Board. See Antler’s
Inn & Rest., LLC v. Dep’t of Pub. Safety, 2012 ME 143, ¶ 9, 60 A.3d 1248.
Second, Narowetz contends that the Board erred in considering her dishonesty, arguing that this
violated her right to due process because such consideration required a separate charge in order to
provide her with adequate notice that the dishonesty might be considered by the Board in this
proceeding, rather than in a new complaint. Given the insufficiency of the factual findings, we do not
know the extent to which the Board found her to be dishonest; however, the record reflects that any
dishonesty that the Board considered was in the context of identifying an appropriate sanction, not
12
B. Commingling of Roles
[¶23] Narowetz argues that the Board violated her procedural due
process rights and 5 M.R.S. § 9055 by commingling the roles of investigator,
prosecutor, and adjudicator. Because we find that Black’s participation as
investigator, prosecutor, and advisor to the Board violated section 9055, we
need not address the constitutional argument. See Your Home, Inc. v. City of
Portland, 432 A.2d 1250, 1257 (Me. 1981) (“[W]e avoid expressing opinions on
as a separate act of professional misconduct. If the Board did find that Narowetz was dishonest, it
was free to take this into account when setting appropriate discipline. The extent to which a licensee
attempts to cover up or mislead regarding an act of unprofessional conduct reflects upon the gravity
of that conduct, and thus the appropriate sanction for the same. Narowetz was notified, prior to the
hearing, of the sanctions that could be imposed based on the charged misconduct, which extended to
the loss of her license and other sanctions more severe than those the Board chose to impose.
Third, citing Balian v. Board of Licensure in Medicine, 1999 ME 8, 722 A.2d 364, Narowetz argues
that the Board was required to present expert witness testimony of the professional standard she
was found to have violated. In Balian, however, no Board rule specified that failure to provide records
constituted unprofessional conduct and the Board did not introduce evidence—expert witness
testimony or otherwise—to establish the standard of professional conduct. Id. ¶¶ 4-5, 12-15. Here,
the applicable rule, see supra n.3, makes the standard clear. Moreover, the Board was not required
to offer evidence establishing that a licensee has a duty to open mail containing a request for patient
records or that a licensee is expected to testify honestly before the Board. See Balian, 1999 ME 8,
¶ 16, 722 A.2d 364 (“[W]here an act is blatantly illegal or improper, or where the licensee admits to
a violation, the Board need not introduce record evidence to establish the necessary standard.”).
Fourth, Narowetz argues that the Board erred in denying her motion to take additional evidence.
The aspect of her motion seeking investigation into the assistant attorneys general’s multiple roles is
rendered moot by our ruling; the aspect of her motion asserting Board bias was not preserved
because she failed to raise it before the Board, and none of the bases she cited for requesting to take
the additional evidence was unknown to her at the time of the hearing. She also filed no offer of proof
with her motion, as required by M.R. Civ. P. 80C(e).
Finally, the independent claims were properly dismissed as duplicative. See Cape Shore House
Owners Ass’n v. Town of Cape Elizabeth, 2019 ME 86, ¶ 7, 209 A.3d 102.
13
constitutional law whenever a non-constitutional resolution of the issues
renders a constitutional ruling unnecessary.”).
1. Plain Language
[¶24] “We interpret every statute de novo as a matter of law to give effect
to the intent of the Legislature, first by examining its plain language.” Reed v.
Sec’y of State, 2020 ME 57, ¶ 14, 232 A.3d 202 (quotation marks omitted).
Section 9055 provides as follows:
§ 9055. Ex parte communications; separation of functions
1. Communication prohibited. In any adjudicatory proceeding,
no agency members authorized to take final action or presiding
officers designated by the agency to make findings of fact and
conclusions of law may communicate directly or indirectly in
connection with any issue of fact, law or procedure, with any party
or other persons legally interested in the outcome of the
proceeding, except upon notice and opportunity for all parties to
participate.
2. Communication permitted. This section shall not prohibit any
agency member or other presiding officer described in
subsection 1 from:
A. Communicating in any respect with other members of the
agency or other presiding officers; or
B. Having the aid or advice of those members of his own agency
staff, counsel or consultants retained by the agency who have
not participated and will not participate in the adjudicatory
proceeding in an advocate capacity.
(Emphasis added.)
14
[¶25] The plain language of this section of the Maine Administrative
Procedure Act mandates that, in any case to be decided by a board, board
members shall not be advised by the same legal counsel who will subsequently
act in an advocate capacity in the same matter. If an assistant attorney general
gives advice to a board relating to the merits of a complaint, he or she should
not then prosecute the charge based on that complaint before the board.
2. Legislative History and Purpose
[¶26] Although the plain language of this section is not complex, we
understand from oral argument that the current practice of assistant attorneys
general staffing Maine’s boards and agencies may differ from what the statute
requires. “Although it is unnecessary to look at the legislative history because
the plain language elucidates the Legislature’s intent, we note that the history
supports the intent stated in the plain language.” Stockly v. Doil, 2005 ME 47,
¶ 12, 870 A.2d 1208.
a. Legislative History
[¶27] The Legislature stated that section 9055 was “considered to be
among the most vital in the proposed [Administrative Procedure Act], both
because off the record communications between decision-makers and
advocates are so likely to be prejudicial to those parties not present, and
15
because many of Maine’s administrative agencies are so small that the problem
occurs frequently.” L.D. 1768, cmt., § 9055 (108th Legis. 1977).
[¶28] Before the Maine Administrative Procedure Act was passed into
law, a 1974 draft version of the bill included the following language: “this
section shall not prohibit any agency member or other presiding officer
described in the first sentence of this section from . . . having the aid and advice
of agency staff, counsel for the agency, or the Department of the Attorney
General.” L.D. 1768, Draft Administrative Procedure Act, § 2504(2)(B)
(Dec. 5, 1974). This proposed language was not adopted, however, and in its
place the current version, which allows the agency to seek only the aid of
outside counsel “who have not participated and will not participate in the
adjudicatory proceeding in an advocate capacity,” was enacted. 5 M.R.S.
§ 9055(2)(B) (emphasis added). This change to the proposed legislation shows
that the Legislature considered and rejected the proposition that the same
assistant attorneys general could advise members of an agency and later
advocate a position before that agency.10
10 Because the Maine APA “roughly mirrors” the federal APA, the federal Act can offer “useful
guidance.” Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Emps. Ret. Sys., 2009 ME 108, ¶ 13, 983 A.2d 391.
The federal APA precludes employees or agents engaged in the performance of investigative or
prosecuting functions for an agency in a case from participating or advising in the decision,
recommended decision, or agency review, with certain exceptions. 5 U.S.C.S. § 554(d)(2) (LEXIS
through Pub. L. 117-36, approved Aug. 6, 2021, excepting part V of Subtitle A of Tit. 10, as added by
16
b. Purpose
[¶29] An important goal of an administrative procedure act is not only
to provide a fair mechanism for regulatory conduct but to instill public
confidence in the same. See Wong Yang Sung v. McGrath, 339 U.S. 33, 42 (1950)
(referring to the legislative history of the federal APA, which noted that a lack
of separation of function between prosecutor and judge “not only undermines
judicial fairness; it weakens public confidence in that fairness” (quotation
marks omitted)); Amos Treat & Co. v. Sec. Exch. Comm’n, 306 F.2d 260, 267
(D.C. Cir. 1962) (stating that an administrative hearing must be attended “not
only with every element of fairness but with the very appearance of complete
fairness”); Nightlife Partners, Ltd. v. City of Beverly Hills, 133 Cal. Rptr. 2d 234,
243 (Cal. Ct. App. 2003) (“One of the basic tenets of the [California] APA, as well
as the Model State Administrative Procedure Act, various state administrative
procedure acts, and the federal Administrative Procedure Act is that, to
promote both the appearance of fairness and the absence of even a probability
of outside influence on administrative hearings, the prosecutory and, to a lesser
Pub. L. 116-283 (effective 1/1/2022)). The Model State Administrative Procedure Act similarly
requires a separation of functions. See Model State Admin. Proc. Act § 4-214(a), 15 U.L.A. 94 (2000).
17
extent, investigatory, aspects of administrative matters must be adequately
separated from the adjudicatory function.” (emphasis in original)).
[¶30] A licensee coming before a board to face potentially severe
discipline might question the legitimacy of an adjudicatory proceeding where
the lawyer presenting the prosecution’s case is the same lawyer who acted in
an advisory capacity to the board in the same matter. Without impugning the
integrity of any member of the Office of the Attorney General, who we have no
reason to suspect was not performing in accordance with the highest ethical
standards, this multiplicity of roles can undermine the confidence of the parties
and the public in the regulatory process.
[¶31] Lack of transparency increases concerns about appearance. The
licensee in a disciplinary hearing can only speculate as to the scope and content
of prior communications, direct or indirect, that might have taken place
between the board and an assistant attorney general acting in an advisory
capacity and the effect such communications might have when that same
assistant attorney general appears at the evidentiary hearing in the role of
advocate against the licensee’s position.11 See Mutton Hill Est., Inc. v. Town of
11 It is unclear from the record whether Black in fact engaged in any direct or indirect
communications with the Board outside public hearings prior to the evidentiary hearing where he
appeared in an advocate capacity. The Board has no rule setting forth its procedures. The record
contains various emails to and from Black with contents redacted. The record cannot capture oral
18
Oakland, 468 A.2d 989, 992 (Me. 1983) (holding that the Superior Court
correctly vacated a board’s order when a board carried out an ex parte session
with opponents to an application because the influence of the opponents in the
ex parte session on the board’s fact finding could not be determined from the
record).
[¶32] While we take no position as to whether a commingling of the
advisory function with the investigatory and prosecutorial functions can rise to
the level of a constitutional violation, at least a few other jurisdictions have so
concluded. See Lyness v. Pa. State Bd. of Med., 605 A.2d 1204, 1210 (Pa. 1992);
Horne v. Polk, 394 P.3d 651, 659 (Ariz. 2017). We construe statutes to avoid
constitutional concerns when possible, see State v. Davenport, 326 A.2d 1, 5-6
(Me. 1974), and we presume that the Legislature similarly seeks to avoid
constitutional problems when enacting statutes. See Bernier v. Raymark
Indus., Inc., 516 A.2d 534, 549 (Me. 1986) (McKusick, C.J., dissenting) (“[B]y an
established canon of statutory construction, legislators are presumed to avoid
constitutional problems.”).
communications, and Narowetz’s attempt to probe the issue by calling Black and other Board staff as
witnesses at the evidentiary hearing was rejected. But regardless of whether any ex parte
communications in fact occurred, our inability to confirm that no ex parte communication directly or
indirectly influenced the Board’s adjudication underscores the prudence of the separation of
functions mandated by section 9055.
19
[¶33] In sum, given the language, purpose, and history of section 9055,
along with constitutional considerations, we conclude that the intent of the
Legislature in enacting the statute was, consistent with legislatures enacting
administrative procedure acts elsewhere, to segregate the advisory function
from the investigatory and advocacy functions in adjudicatory matters before
state agencies.12
12 Ordinarily, if legislative intent is not clear based on a statute’s language, purpose, and legislative
history, we defer to a reasonable construction of a statute offered by the agency administering the
statute. See SAD 3 Educ. Ass’n v. RSU 3 Bd. of Dirs., 2018 ME 29, ¶ 14, 180 A.3d 125. As noted, given
the language, purpose, and history of section 9055, we find that the Legislature intended to separate
the functions of those giving legal advice to an agency and those advocating before the agency. Even
if there were some ambiguity, however, the Board (represented by Black) did not respond to
Narowetz’s section 9055 argument in its brief before us. Hence, there is no clearly articulated agency
position to which we could defer. See Verizon v. Fed. Commc’n Comm’n, 740 F.3d 623, 658-59
(D.C. Cir. 2014) (rejecting deference to a position asserted by an agency for the first time at oral
argument).
At oral argument, Black stated that because he was representing Board staff’s position at the
evidentiary hearing, and Board staff do not fall within the definition of a party contained in 5 M.R.S.
§ 8002(7) (2021), section 9055 does not apply. The Board and the hearing officer, however,
considered Black to be representing a “party.” Further, section 9055(2) does not limit separation of
functions based on technical party status but instead segregates the function of those acting in an
“advocate capacity” from those providing advice.
In addressing Narowetz’s constitutional argument, the Board asserted in its brief that the issuance
of the consent agreement did not involve fact finding by the Board; the role of the assistant attorneys
general was simply to advise the Board as to the universe of options from which the Board could
choose; and because Black never advocated discipline, his role was not that of a prosecutor. But while
the Model State Administrative Procedure Act provides that “[a] person who has participated in a
determination of probable cause or other equivalent preliminary determination in an adjudicative
proceeding may . . . assist or advise a presiding officer in the same proceeding, unless a party
demonstrates grounds for disqualification,” Model State Admin. Proc. Act § 4-214(c), 15 U.L.A. 94
(2000), section 9055 contains no such provision. See 5 M.R.S. § 9055 (2021). The offer of the consent
agreement, moreover, even if it could not be characterized as a preliminary determination, included
fact finding and involved a degree of judgment by the Board as to the terms and discipline it would
impose. This raises the same concerns regarding separation of function as with ultimate decision
making. The Board, with Black providing advice to it, made a collective decision that the complaint
should not be dismissed for lack of merit, that the factual underpinnings of the complaint had validity,
that the facts as found in the agreement constituted unprofessional conduct, and that the sanction for
20
3. The Scope of Section 9055’s Restrictions
[¶34] The separation of the advocacy function mandated by section 9055
does not preclude the entire Office of the Attorney General from having
individual assistant attorneys general perform different roles. See
Superintendent of Ins. v. Att’y Gen., 558 A.2d 1197, 1201-02 (Me. 1989)
(assistant attorneys general are not subject to the same conflict-of-interest
rules as other attorneys); see also Mallinckrodt LLC v. Littell, 616 F. Supp. 2d
128, 143 (D. Me. 2009) (noting that the Attorney General has sufficient
personnel to maintain a firewall and avoid the appearance of bias). In this
instance, for example, three assistant attorneys general participated in the case
and could have divided up the separate functions among them in a manner that
would have avoided the overlap of the advisory function with the investigatory
and prosecuting functions.
that misconduct was appropriate. The consent agreement required Narowetz to admit that her
conduct gave rise to grounds for imposing discipline against her for engaging in unprofessional
conduct, and, if accepted, the agreement would have constituted a final and unappealable decision.
Finally, to the extent that the Board argues that Black never acted in an advocate capacity, this
argument ignores reality. Black signed an opposition on behalf of “the prosecution” and vigorously
challenged Narowetz’s position that she should not be disciplined. The hearing officer perceived
Black as arguing the “State’s” position. By any practical understanding of the concept, Black acted in
an advocacy capacity in support of a finding of misconduct and imposition of discipline.
21
The entry is:
Judgment vacated. Remanded to the Superior
Court with instructions to remand to the Board
of Dental Practice for further proceedings
consistent with this opinion.
Janna L. Gau, Esq. (orally), Eaton Peabody, Bangor, for appellant Marina
Narowetz
Aaron M. Frey, Attorney General, and Andrew L. Black, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Board of Dental Practice
Kennebec County Superior Court docket number AP-2019-43
FOR CLERK REFERENCE ONLY