In Re Shelly Ann-Marie Sangster Rn

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re SHELLY ANN-MARIE SANGSTER, R.N.
DEPARTMENT OF LICENSING AND FOR PUBLICATION
REGULATORY AFFAIRS, January 13, 2022
9:05 a.m.
Petitioner-Appellee,
v No. 352147
LARA Bureau of Professional
SHELLY ANN-MARIE SANGSTER, R.N., Licensing
LC No. 19-004634
Respondent-Appellant.
Before: MARKEY, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.
PER CURIAM.
Respondent Shelly Ann-Marie Sangster, R.N., appeals by right the order of the Board of
Nursing Disciplinary Subcommittee (BNDS) revoking respondent’s nursing license on the basis
of MCL 333.16221(a) (violation of general duty) and (b)(vi) (lack of good moral character). We
affirm.
I. FACTS
A. BACKGROUND
Respondent was a registered nurse but had not been employed in that capacity since 2012.
This case arises from a relationship that respondent cultivated with a 75-year-old man, FL. FL
died prior to the hearing on this matter; therefore, the facts were derived from the testimony of
FL’s two adult daughters, FL’s doctor, respondent, and an investigator who interviewed FL prior
to his death. FL’s wife of more than 50 years died suddenly shortly before the events that gave
rise to this case, and at all relevant times FL was suffering from a terminal form of cancer.
FL was addicted to gambling and frequently patronized a local casino. FL and respondent
met in 2016 while both were gambling at the casino, and respondent moved into FL’s home shortly
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after the two met. FL’s daughters testified that immediately after meeting, respondent told FL that
she was a nurse, that she was homeless, and that the pair could assist one another. Respondent,
however, testified that such a conversation never occurred and that FL offered to let her stay with
him because he knew that she did not have a home and that she did not want to move back in with
her mother. Respondent claimed that she then became a sort of “home assistant” for FL and helped
him with cleaning, cooking, shopping, and other household chores. But FL’s daughters as well as
FL’s doctor testified that respondent held herself out as FL’s caregiver and that her status as a
nurse gave her substantial credibility with FL in this regard.
It is undisputed that FL spent substantial sums of money while respondent was living with
him and that FL added respondent to a checking account as well as to multiple lines of credit. One
of FL’s daughters testified that FL spent approximately $40,000 on respondent, although she did
not supply any documentation to verify that figure. Respondent admitted that FL spent a lot of
money purchasing clothes and other necessities for her, and she also acknowledged that he paid
her a few hundred dollars a week for her services. But respondent denied that she “swindle[d]”
him for money or gifts, insisted that the checking account and lines of credit were established so
that she could purchase groceries for FL, and stated that most of the money FL lost during that
time was the result of his gambling addiction.
FL had hopes of forming a romantic relationship with respondent, but those feelings for
her were unreciprocated. Respondent testified that toward the end of her time living with FL, he
began making romantic advances, and she therefore decided that it was time for her to move out.
FL’s daughters testified that around this time respondent took FL’s car and left him stranded at a
hotel for multiple days. FL called them when this happened, and he did not know where he was
or what to do. One daughter testified that while respondent was gone with FL’s car, respondent
visited an ATM and took approximately $1,000 from the joint checking account she shared with
FL. Respondent testified that she was given permission by FL to take his car so that she could
move out of his house.
After this incident, FL moved in with one of his daughters, and she helped him obtain a
personal protection order (PPO) against respondent. This daughter also initiated protective
proceedings to establish a guardianship and conservatorship over FL, and respondent was held in
contempt of court for violating the PPO by attending the guardianship hearing. FL lived with his
daughter until his death, and she testified that FL felt as though respondent had taken advantage
of him. In 2018, FL was interviewed by an investigator from the licensing board about his
relationship with respondent. The investigator’s testimony largely corroborated the testimony of
FL’s daughters, and she stated that FL felt embarrassed about what had happened.
B. PROCEDURAL HISTORY
On December 28, 2018, petitioner, the Michigan Department of Licensing and Regulatory
Affairs (LARA), through the Director of the Bureau of Professional Licensing, filed an
administrative complaint against respondent, alleging that respondent was subject to discipline
under MCL 333.16221(a) (violation of general duty), (b)(iii) (mental or physical inability to
practice in safe and competent manner), and (b)(vi) (lack of good moral character). Petitioner also
issued an order of summary suspension, and on March 5, 2019, respondent filed a petition for
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dissolution of summary suspension. After multiple adjournments, the details of which are not
relevant to this appeal, a hearing on the complaint was held on August 26, 2019. On October 15,
2019, the hearings examiner issued a proposal for decision in which he found that respondent had
violated MCL 333.16221(a) and (b)(vi) but not (b)(iii). On November 3, 2019, respondent filed
exceptions to the proposal for decision, and on December 16, 2019, the BNDS entered a final order
in which it adopted the hearings examiner’s findings of fact and conclusions of law. As
punishment for the statutory violations, the BNDS revoked respondent’s nursing license.
II. ANALYSIS
A. STANDARDS OF REVIEW AND OVERVIEW OF DISCIPLINARY PROCEEDINGS
Rulings by disciplinary boards or subcommittees are reviewed on appeal solely under
Const 1963, art 6, § 28. Dep’t of Community Health v Anderson, 299 Mich App 591, 597; 830
NW2d 814 (2013); Dep’t of Community Health v Risch, 274 Mich App 365, 371; 733 NW2d 403
(2007). Const 1963, art 6, § 28, provides:
All final decisions, findings, rulings and orders of any administrative officer
or agency existing under the constitution or by law, which are judicial or quasi-
judicial and affect private rights or licenses, shall be subject to direct review by the
courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole record.
This Court must review the entire record, not just the portions that support an agency’s
findings, when assessing whether the agency’s decision was supported by competent, material,
and substantial evidence on the whole record. Risch, 274 Mich App at 372. “Substantial evidence”
means evidence that a reasonable person would find acceptably sufficient to support a conclusion.
Id. This may be substantially less than a preponderance of evidence, but does require more than a
scintilla of evidence. Id. The Risch panel further observed:
Moreover, if the administrative findings of fact and conclusions of law are
based primarily on credibility determinations, such findings generally will not be
disturbed because it is not the function of a reviewing court to assess witness
credibility or resolve conflicts in the evidence. A reviewing court may not set aside
factual findings supported by the evidence merely because alternative findings
could also have been supported by evidence on the record or because the court
might have reached a different result. [Id. at 372–373 (citations omitted).]
“Under th[e] test, it does not matter that the contrary position is supported by more
evidence, that is, which way the evidence preponderates, but only whether the position adopted by
the agency is supported by evidence from which legitimate and supportable inferences were
drawn.” McBride v Pontiac Sch Dist (On Remand), 218 Mich App 113, 123; 553 NW2d 646
(1996). “[A]n appellate court must generally defer to an agency’s administrative expertise.”
Anderson, 299 Mich App at 598. For purposes of Const 1963, art 6, § 28, a decision is not
“authorized by law” when it is in violation of a statute or a constitutional provision, in excess of
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an agency’s statutory authority or jurisdiction, made upon unlawful procedure that results in
material prejudice, or when it is arbitrary and capricious. Northwestern Nat'l Cas Co v Comm'r of
Ins, 231 Mich App 483, 488-489; 586 NW2d 563 (1998).
With respect to a due process argument raised by respondent, it presents a question of
constitutional law that we review de novo. People v Nunley, 491 Mich 686, 696-697; 821 NW2d
642 (2012). Unpreserved constitutional arguments are reviewed for plain error affecting
substantial rights. In re Osborne, 237 Mich App 597, 606; 603 NW2d 824 (1999).
MCL 333.16221 lists a number of violations or grounds that can result in disciplinary
proceedings against a licensee. In pertinent part, MCL 333.16221 provides:
Subject to section 16221b, the department shall investigate any allegation
that 1 or more of the grounds for disciplinary subcommittee action under this
section exist, and may investigate activities related to the practice of a health
profession by a licensee, a registrant, or an applicant for licensure or registration.
The department may hold hearings, administer oaths, and order the taking of
relevant testimony. After its investigation, the department shall provide a copy of
the administrative complaint to the appropriate disciplinary subcommittee. The
disciplinary subcommittee shall proceed under section 16226 if it finds that 1 or
more of the following grounds exist:
(a) Except as otherwise specifically provided in this section, a violation of
general duty, consisting of negligence or failure to exercise due care, including
negligent delegation to or supervision of employees or other individuals, whether
or not injury results, or any conduct, practice, or condition that impairs, or may
impair, the ability to safely and skillfully engage in the practice of the health
profession.
(b) Personal disqualifications, consisting of 1 or more of the following:
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(vi) Lack of good moral character.
MCL 333.16231 authorizes the issuance of a complaint against a licensee for an alleged
violation of MCL 333.16221. And MCL 333.16231a provides for a hearing on the complaint
before a hearings examiner. At the hearing, the licensee “may be represented . . . by legal counsel.”
MCL 333.16231a(4). The hearings examiner “shall determine if there are grounds for disciplinary
action under section 16221 . . . .” MCL 333.16231a(2). The hearings examiner must “prepare
recommended findings of fact and conclusions of law for transmittal to the appropriate disciplinary
subcommittee.” Id. “In imposing a penalty . . ., a disciplinary subcommittee shall review the
recommended findings of fact and conclusions of law of the hearings examiner.” MCL
333.16237(1). Under MCL 333.16237(3), “[i]n reviewing the recommended findings of fact and
conclusions of law of the hearings examiner and the record of the hearing, a disciplinary
subcommittee may request the hearings examiner to take additional testimony or evidence on a
specific issue or may revise the recommended findings of fact and conclusions of law as
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determined necessary by the disciplinary subcommittee, or both.” A disciplinary subcommittee is
not permitted to conduct its own investigation or to take its own additional testimony or evidence.
Id. MCL 333.16237(4) provides:
If a disciplinary subcommittee finds that a preponderance of the evidence
supports the recommended findings of fact and conclusions of law of the hearings
examiner indicating that grounds exist for disciplinary action, the disciplinary
subcommittee shall impose an appropriate sanction . . . . If the disciplinary
subcommittee finds that a preponderance of the evidence does not support the
findings of fact and conclusions of law of the hearings examiner indicating that
grounds exist for disciplinary action, the disciplinary subcommittee shall dismiss
the complaint. A disciplinary subcommittee shall report final action taken by it in
writing to the appropriate board or task force.
When a disciplinary subcommittee finds the existence of one or more of the grounds set
forth in MCL 333.16221, the subcommittee is authorized under MCL 333.16226 to impose various
sanctions against a licensee. And MCL 333.16226(2) provides:
Determination of sanctions for violations under this section shall be made
by a disciplinary subcommittee. If, during judicial review, the court of appeals
determines that a final decision or order of a disciplinary subcommittee prejudices
substantial rights of the petitioner for 1 or more of the grounds listed in section 106
of the administrative procedures act of 1969, MCL 24.306, and holds that the final
decision or order is unlawful and is to be set aside, the court shall state on the record
the reasons for the holding and may remand the case to the disciplinary
subcommittee for further consideration.
B. DISCUSSION
Respondent first argues that the BNDS lacked jurisdiction to hear this case because there
was no nexus between respondent’s relationship with FL and the practice of a health profession.
We disagree.
As indicated earlier, MCL 333.16221 provides, in pertinent part, that LARA “shall
investigate any allegation that 1 or more of the grounds for disciplinary subcommittee action under
this section exist, and may investigate activities related to the practice of a health profession by a
licensee, a registrant, or an applicant for licensure or registration.” (Emphasis added.)1 Pursuant
to these two types of investigatory powers, LARA “may hold hearings, administer oaths, and order
the taking of relevant testimony.” MCL 333.16221. Although LARA has the authority or
jurisdiction to investigate and have a subcommittee hold hearings in relation to activities connected
to the practice of a health profession, it also has the authority or jurisdiction to investigate any
allegations of a violation set forth in MCL 333.16221, followed by a subcommittee hearing on the
matter. Jurisdiction existed in this case because there were allegations premised on various
1
The BNDS is an entity within LARA and its Bureau of Professional Licensing.
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grounds found in MCL 333.16221. LARA and the BNDS were presented with allegations that
respondent used her status as a registered nurse to exploit and defraud FL. Respondent’s
arguments regarding this issue pertain to the strength of the evidence supporting the allegations;
however, those arguments have no bearing on whether LARA had the authority to investigate the
allegations in the first place and lodge an administrative complaint or on whether the BNDS had
jurisdiction to conduct a hearing, assess the evidence, and render findings concerning the
allegations. In other words, the jurisdiction of the BNDS depended on the nature of the allegations,
not upon the truth of those allegations.
Respondent next argues that the hearings examiner committed error warranting reversal by
admitting hearsay testimony. We disagree.
Petitioner contends that respondent failed to preserve this argument. An issue is preserved
if it has been “raised before, addressed by, or decided by the lower court or administrative
tribunal.” Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010).
While respondent did not raise an objection to every instance of alleged hearsay testimony,
respondent did raise a hearsay objection early in the proceeding and the hearings examiner
indicated that he did not intend to exclude evidence on the basis of hearsay. Therefore, we
conclude that the hearsay issue was adequately preserved.
“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “A
‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended
by the person as an assertion.” MRE 801(a).
Substantial portions of the evidence admitted and considered by the hearings examiner
constituted hearsay. Specifically, respondent challenges the testimony of FL’s daughters, the
investigator, and FL’s doctor. FL’s daughters testified in regard to what FL told them about his
relationship with respondent and how she left him stranded at a hotel. The doctor also testified
with respect to what FL told him regarding FL’s relationship with respondent. Finally, the
investigator testified about an interview that she conducted with FL to discuss respondent’s
conduct. Petitioner does not dispute that this testimony was hearsay, that it did not fall within any
hearsay exception, and that it would not have been admissible in an ordinary criminal or civil trial.
Nevertheless, the fact that the hearings examiner admitted hearsay does not necessarily
mean that the examiner erred. Section 75 of the Administrative Procedures Act of 1969, MCL
24.201 et seq., provides, in relevant part:
In a contested case the rules of evidence as applied in a nonjury civil case
in circuit court shall be followed as far as practicable, but an agency may admit and
give probative effect to evidence of a type commonly relied upon by reasonably
prudent men in the conduct of their affairs. Irrelevant, immaterial or unduly
repetitious evidence may be excluded. Effect shall be given to the rules of privilege
recognized by law. . . . [MCL 24.275 (emphasis added).]
In light of the “reasonably prudent men” standard in MCL 24.275, “[i]t is now established that
evidentiary rulings in administrative proceedings may stray from rigid courtroom rules on
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evidence.” Rentz v Gen Motors Corp, Fisher Body Div, Fleetwood Plant, 70 Mich App 249, 253;
245 NW2d 705 (1976).
In this case, strict adherence to the Michigan Rules of Evidence was not practicable because
FL died before the hearing. Therefore, the only way that the hearings examiner could consider
FL’s version of events was to admit hearsay evidence in the form of testimony from the people to
whom FL had described his relationship with respondent. Given MCL 24.275, the dispositive
issue is whether reasonably prudent men in the conduct of their affairs would have relied on the
hearsay testimony.
The hearings examiner had ample reason to conclude that the evidence was sufficiently
reliable to warrant admission. The evidence was not far removed from the source as each witness
was repeating information that had been relayed directly to them by FL, who had experienced the
events firsthand. FL moved in with one of his daughters after he stopped living with respondent,
and the daughter testified that she spent “almost every day” with him from that point until his
death. Therefore, she had the opportunity to become quite familiar with FL’s perspective on his
interactions with respondent. The investigator and the doctor were neutral and had no incentive
to skew FL’s words. We are aware of no information that substantially undermines the credibility
of these witnesses and conclude that a reasonably prudent person would have relied on the hearsay
testimony. Moreover, respondent merely argues in conclusory fashion that a reasonably prudent
person would not have relied on the hearsay testimony but fails to proffer any reasons for that
conclusion. Reversal is unwarranted.
Respondent next argues that the hearings examiner erred by ruling that she lacked good
moral character for purposes of MCL 333.16221(b)(vi). We disagree. Petitioner argues that
respondent failed to preserve this issue. But respondent’s continuous position below, both at the
hearing and in the exceptions to the proposal for decision, was that petitioner failed to establish
the statutory grounds for revocation of her license, including lack of good moral character.
Therefore, this issue is preserved. See Gen Motors Corp, 290 Mich App at 386.
“The phrase ‘good moral character’, when used as a requirement for an occupational or
professional license[,] . . . means the propensity on the part of an individual to serve the public in
the licensed area in a fair, honest, and open manner.” MCL 338.41(1); see also Bureau of Health
Professions v Serven, 303 Mich App 305, 310; 842 NW2d 561 (2013) (applying MCL 338.41[1]
to an allegation made under MCL 333.16221[b][vi]).
The following excerpt from the hearings examiner’s findings summarizes the conduct of
respondent that demonstrated a lack of good moral character in the view of the examiner:
The facts in this case are truly disturbing. Shortly after meeting at a casino,
Respondent found herself living in F.L.’s home, driving his car and commandeering
his finances. Although Petitioner failed to provide a record demonstrating the
precise dollar amount, F.L.’s daughters credibly testified that Respondent may be
responsible for spending up to $40,000 in funds from F.L.’s credit cards and
accounts. The credible testimony on this record also shows F.L. felt embarrassed
and victimized after he realized he had been taken for a ride when he reported to
[the investigator] how Respondent caused him to lose thousands and thousands of
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dollars. . . . [T]he investigator . . . was a disinterested witness who offered objective
and very credible testimony.
The evidence was sufficient for a reasonable person to conclude that respondent used her
status as a nurse to exploit FL for her own personal and financial benefit. FL’s daughters testified
that FL was terminally ill and that he had been struggling emotionally since the sudden death of
his wife. FL’s daughters also testified that respondent told FL shortly after meeting him that she
was a nurse and that they could help each other. One daughter indicated that respondent’s status
as a nurse gave her credibility with FL as a caregiver. FL’s doctor testified that when he met
respondent at one of FL’s appointments she held herself out as his caretaker. FL’s daughters
asserted that respondent allowed FL to make frequent and extravagant purchases for her and
estimated that FL spent close to $40,000 on respondent. Even presuming that some of the $40,000
that disappeared from FL’s funds probably went to gambling rather than to respondent, respondent
admitted that she was added to FL’s financial accounts and that she allowed FL to purchase coats,
clothing, and other necessities for her. A daughter testified that she spent virtually every day with
FL after respondent stopped living with him, that she obtained insight into the situation, and that
respondent appeared to be using her nursing license to exploit FL. She emphasized that respondent
always presented herself as being FL’s healthcare person, indicating “that she was taking care of
his health.” As noted earlier, FL’s daughters testified that respondent once abandoned FL without
a car at a hotel for multiple days and took more than $1,000 of FL’s money from an ATM. The
investigator testified that FL told her that respondent held herself out as FL’s caregiver, and he
also informed the investigator about the incident in which he was abandoned at a hotel.
Respondent’s testimony directly contradicted substantial portions of the testimony offered
by petitioner’s witnesses. But the hearings examiner found that “[r]espondent’s version of the
events was inconsistent, illogical, and largely self-serving” and that “[t]he testimony from F.L.’s
daughters, [the doctor,] and [the investigator], on the other hand, were more consistent, logical and
reasonable, which made their testimony more credible than Respondent’s.” This Court generally
does not disturb findings that are based on credibility determinations, and we do not reverse factual
findings merely because there were other findings that the evidence could have supported. Risch,
274 Mich App at 372-373. The record supported a conclusion that respondent lacked the
propensity “to serve the public in the licensed area in a fair, honest, and open manner.” MCL
338.41. Accordingly, there was substantial, competent, and material evidence supporting the
determination of the hearings examiner that respondent lacked good moral character.
Finally, respondent argues that her due-process rights were violated because the revocation
of her license was based on the state’s disapproval of an unconventional but consensual
relationship. We disagree. Respondent contends that her license was revoked because her “non-
mainstream” relationship with FL was viewed as “inappropriate or morally unacceptable” by the
state of Michigan. Respondent cites Lawrence v Texas, 539 US 558, 562; 123 S Ct 2472; 156 L
Ed 2d 508 (2003), for the proposition that the state was not entitled to do this because “consenting
adults have an absolute right to engage in private relationships of their choosing, where, as here,
there is no evidence of the violation of any law.” We agree that a mutually consensual relationship
that causes no harm and no violation of the law would be an impermissible basis for revoking
respondent’s license, but the hearings examiner found that the relationship was exploitative and
harmful to FL. Respondent’s argument essentially is that the hearings examiner’s findings were
erroneous, that respondent’s interpretation of the evidence was that she and FL had a consensual
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and mutually beneficial, while also unconventional, relationship, that this Court should accept her
interpretation of the evidence rather than the examiner’s, and that, in light of her interpretation of
the evidence, the state had no right to revoke her license. But for all the reasons discussed above,
the evidence was sufficient to support the hearing examiner’s findings. Therefore, we decline
respondent’s invitation to substitute her interpretation of the evidence and likewise reject her
constitutional argument.
We affirm.
/s/ Jane E. Markey
/s/ Douglas B. Shapiro
/s/ Amy Ronayne Krause
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