Sarah Flynn v. Board of Certified Court Reporter Examiners
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SUPREME COURT OF ARKANSAS
No. 07-888
Opinion Delivered March
SARAH FLYNN,
6, 2008
APPELLANT,
AN ORIGINAL ACTION FROM THE
BOARD OF CERTIFIED COURT
REPORTER EXAMINERS
VS.
BOARD OF CERTIFIED
REPORTER EXAMINERS,
COURT
APPELLEE,
REVERSED AND REMANDED.
JIM HANNAH, Chief Justice
Sarah Flynn appeals an order of the Board of Certified Court Reporters suspending her
court reporter’s certification for one year commencing May 23, 2007. Flynn alleges that she
was denied due process when the notice of complaint and hearing resulting in her suspension
failed to list the charges against her and the possible action the Board might take. Our
jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(8). On the appeal of a decision of the
Board of Certified Court Reporters, we conduct a de novo review of the record and do not
reverse unless the Board was clearly erroneous. See Brooks v. Bd. of Certified Court Reporter
Exam’rs, 360 Ark. 296, 200 S.W.3d 900 (2005).
Flynn has a court reporting service. On April 7, 2007, court reporter Amber Prichard
submitted a complaint to the Board regarding Flynn. She attached three affidavits, her own,
Amanda Poe’s, and Rena’ Allmond’s. All three court reporters made similar allegations in
their affidavits: that Flynn began to complete all deposition transcripts herself, that she
required court reporters to provide her with a constant supply of blank but signed deposition
certification pages, that although they were the court reporters at the depositions, they never
signed any deposition transcript after it was bound, and that Flynn made changes to the
deposition transcripts.
On April 12, 2007, the Board sent a letter to Flynn under the Executive Secretary’s
signature that stated, “Enclosed is a copy of the complaint which has been filed against you
by Ms. Amber Prichard.” The letter informed Flynn that she could file a response and that
the Board would “hold a hearing in this matter on May 12, 2007.”
Flynn filed an answer and also filed a motion to dismiss alleging that, among other
things, the notice was defective. At the hearing, Flynn restated her objections to the notice,
noting that Board Regulation 19 requires that the notice state the issues to be decided as well
as possible action to be taken by the Board. The Board rejected the argument, and the
hearing proceeded.
Section 19(d) provides in pertinent part as follows:
The notice shall state the cause for the contemplated revocation or suspension
and the time and place of the hearing before the Board, and shall be mailed to
the registered address of the holder of the certificate at least thirty days prior to
the hearing. The Board shall make written findings of fact based on the
evidence presented.
The Board argues that when taken as a whole, the correspondence, as well as the affidavits and
notice of witnesses’ testimony, constituted substantial compliance with Regulation 19(d).1
1
The AG argues that there was substantial compliance, citing Fullerton v. Southside School
District, 272 Ark. 288, 613 S.W.2d 827 (1981). In that case, the statute provided that a teacher’s
contract will be renewed unless the teacher “is notified by the school district that the
superintendent is recommending that the teacher’s contract not be renewed.” Fullerton, 272 Ark.
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07-888
However, this court has held that a governmental entity must strictly comply with its
own rules and regulations. Where a governmental entity sets its own rules, that entity must
strictly adhere to those rules. In Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995) this
court stated the following about compliance of a governmental entity with its own
regulations:
In the present case, UCA failed to adhere to its own expressly enunciated
standards for ensuring procedural due process. The procedures provided by the
university were not structurally flawed; in terms of actual compliance, however,
the letter and spirit of procedural due process were violated. To protect due
process, the courts, in matters pertaining to a governmental entity’s observance
and implementation of self-prescribed procedures, must be particularly vigilant
and must hold such entities to a strict adherence to both the letter and the spirit
of their own rules and regulations.
Smith, 320 Ark. at 260, 895 S.W.2d at 555 (citing Powell v. Heckler, 789 F.2d 176 (3rd Cir.
1986); Koolstra v. Sullivan, 744 F. Supp. 243 (D. Colo. 1990)).2 The court in Powell, supra,
stated that, while deference is granted to an administrative agency’s findings of fact, an agency
at 290. In that case, there was no such recommendation, but rather, the Board, after a couple of
hearings, decided not to renew Fullerton’s contract. Fullerton alleged that the failure of the
superintendent to recommend his dismissal was fatal. The court found that the Board was vested
with sole power to terminate teachers and that there was substantial compliance with the statute.
A statute was at issue in Fullerton, and that case is not on point. Likewise the foreign jurisdiction
cases cited by the Board concern law that is different from the law that has been developed in
Arkansas on compliance with rules and regulations that are promulgated by governmental entities.
2
See also Richie v. Board of Education, 326 Ark. 587, 592-93, 933 S.W.2d 375, 379
(1996), where regulations promulgated by a school board were at issue. This court stated
the following about those regulations:
To protect due process, the courts, in matters pertaining to a governmental
entity’s observance and implementation of self-prescribed procedures, must
be particularly vigilant and must hold such entities to a strict adherence to
both the letter and the spirit of their own rules and regulations.
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07-888
must strictly adhere to both the letter and the spirit of its own rules and regulations. The
United States Court of Appeals for the Second Circuit more recently reaffirmed this in Singh
v. United States Department of Justice, 461 F.3d 290 (2nd Cir. 2006), where the court held that
strict adherence to a governmental agency’s own regulations is required even without proof
of prejudice to the objecting party.
Section 19(d) states that “the notice shall state the cause for the contemplated
revocation or suspension.” “Shall” is mandatory in this context. See Watson v. Connors, ___
Ark. ___, ___ S.W.3d ___ (Jan. 10, 2008). The notice in this case did not meet the
requirements set by the Board in its regulations, and the Board was clearly erroneous when
it failed to grant Flynn’s motion to dismiss the complaint on that basis. The decision of the
Board suspending Flynn is reversed and remanded. A notice complying with Regulation
19(d) must issue, and the Board must hold a new hearing to consider the complaints against
Flynn.
Reversed and remanded.
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07-888
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