Boards’ failure to discipline could cost Nevadans

By Cy Ryan

Thursday, Oct. 16, 2003 | 11:07 a.m.

CARSON CITY -- Some state boards are failing to discipline some people in the professions they regulate because the boards lack the money to handle those cases, Attorney General Brian Sandoval said.

Sandoval said his office will take up the disciplinary cases, even if the boards can't pay. That could cost taxpayers a quarter of a million dollars, he said.

"We're going to do the work, but it's going to be a fiscal issue," Sandoval said.

Sandoval said "the public was not endangered" by the delays in the disciplinary cases.

"We have not put the public at risk," said Sandoval who added the backlog started about one year ago.

Citing attorney-client privilege, Sandoval would not name the boards that could not discipline members because of financial concerns.

There are dozens of state boards that have the power to license and discipline members of their profession, including doctors, dentists, architects, engineers, contractors, barbers, cosmetologists, funeral directors, hearing aid specialists, landscape architects, opticians and marriage counselors.

The issue arose Tuesday at the state Board of Examiners' meeting, when Sandoval asked permission to write off $47,947 owed by the Board of Nursing and $13,618 from the Homeopathic Examiners Board.

Some boards hire private attorneys, but most had contracts with the attorney general's office. But the legal expenses and time put in by deputy attorneys general exceeded the cost in the contracts, he said.

Sandoval said he won't sign contracts in the future and instead will represent the boards, even if they don't have the money for the legal fees. That will run up about $250,000, he said.

Citing attorney-client privilege, Sandoval refused to identify the boards that are delaying cases. But, he said, there is one board with a budget of $30,000 that has a backlog of 40 disciplinary cases that would run up $80,000.

Another board has a $16,000 budget for legal expenses, but it has 28 disciplinary cases backlogged that would cost $57,000, he said.

Sandoval said his office must account to the Legislature for the hours attorneys have worked, and that is why he brought the problem to the attention of the Board of Examiners, headed by Gov. Kenny Guinn.

Guinn said this was not a debt, in the traditional sense, to be written off, however.

Senior Deputy Attorney General Keith Marcher supervises the state attorneys who represent boards and commissions. He said some boards and commissions had "tried to triage" the cases and "get them to us when they could afford to pay."

That's not a good system because these boards exist to enforce rules that are intended to protect the public, he said.

"This whole system doesn't work well," Marcher said. There may have to be changes so that all of the boards have staff or investigators to conduct the groundwork.

Longtime Las Vegas constitutional law attorney Dominic Gentile said the dilemma the state finds itself in could result in serious due process problems for future people accused of breaking rules.

"It could result in selective enforcement and as a result you could see a number of political decisions when it comes to enforcement," Gentile said.

"The prosecutor always has the discretion on whether to go forward, but that decision has to be based on do I have enough evidence not do I have enough money?"

Gentile said that while the purpose of disciplining is for public protection, that may become secondary to protecting the attorney general from public scrutiny.

"This is a dilemma that requires writing a check to fix it," Gentile said. "However, another solution would be to pass more restrictive laws and take away due process of people accused of breaking rules to make the cases easier to prosecute -- and that would not be the right thing to do."

As for citing the attorney-client privilege, in not releasing the names of the boards that have backlogs, Gentile said "attorney-client privilege in this case absolutely doesn't apply.

"The attorney general is charged with representing the state agencies. The identity of the agencies that he represents is not privileged. The attorney general does not represent the doctors or the nurses. He represents the agencies and the boards."

David Fott, associate professor of political science at the University of Nevada Las Vegas, said this is a difficult issue to tackle because with certain privileges of regulating license-holders come certain pitfalls.

"One of the benefits of the American system is that you have a division of national and state, where there is a state licensing of professions such as nurses and doctors," he said.

"When a state has the authority to license it only makes sense for the state to have the authority to discipline. But that costs money and lawyers don't come cheap."

Sandoval's decision to represent the boards and commissions even if they were short of money was made several months ago and there have been about 100 new disciplinary cases received by the attorney general's office since then.

"The danger, if there was any, is gone," Sandoval said.

He said the statute of limitations has not run out on any of these cases. He said about a dozen boards and commissions had delayed the disciplinary hearings.

Sandoval said Marcher had been counsel for the nursing board, which has now hired its own attorney. He said Marcher would be able to handle a number of the new cases and the rest would be spread through the offices.

Some board members and their representatives said Wednesday that Sandoval's intention to continue representing them will allow them to go forward with disciplinary actions.

Because the attorney general finances his office's operation in part by charging agencies for the legal work, Secretary of State Dean Heller, a member of the Board of Examiners, said he was concerned that the failure of the regulatory boards to pay for the state lawyers will cause those costs to be shifted to other agencies.

Heller pointed out that many of these small regulatory boards were created at the urging of those in the profession. Those professionals wanted independence. And members of the profession are assessed a fee to finance the board that is given the responsibility of licensing and discipline.

The implication was that apparently the professionals are not paying high enough fees to cover all the necessary costs of their regulatory boards.

Marcher said the problem occurred in mid-level boards that had to watch their budgets at the end of the year so they did not overspend.

The boards usually collect their dues every two years from the professionals they regulate, Marcher said.

Marcher and Sandoval said it would be impossible for some of the boards to collect enough money to ensure that they can pay the legal bills because one case and a subsequent lawsuit could rack up a huge bill that would bankrupt many of the smaller boards. Lawyers representing professionals facing disciplinary hearings also might try to run up the bill by filing numerous appeals, hoping the board would run out of money and abandon the case, Sandoval said.

Marcher cited a Board of Veterinary Medical Examiners case as an example. That case is still pending even though the board conducted a hearing four years ago. There was an appeal by the person disciplined to the district court and to the Nevada Supreme Court. The Supreme Court sent the case back to the veterinary board so another hearing is necessary.

When the Sun called 15 of the more than 50 state boards, officials from 10 boards said they did not have any backlog of disciplinary cases. And five could not be reached. Among those that said there was no problem were the boards that oversee nursing home administrators, architects, barbers, dental examiners, optometrists and osteopaths.