IN THE MATTER OF THE LICENSE OF MARIEJO JOYCE CONSTANT, R.N.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE LICENSE

OF MARIEJO JOYCE CONSTANT, R.N.,

LICENSE NO. 26NR12773000, TO

PRACTICE NURSING IN THE STATE

OF NEW JERSEY.

_________________________________________

August 28, 2015

Before Judges Espinosa and St. John.

On appeal from the New Jersey State Board of Nursing.

Michael Confusione argued the cause for appellant Mariejo Joyce Constant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the briefs).

David M. Puteska, Deputy Attorney General, argued the cause for respondent New Jersey State Board of Nursing (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Puteska, on the brief).

PER CURIAM
 

Mariejo Joyce Constant appeals from the decision of the Board of Nursing (Board) suspending her license for failure to cooperate with a Board investigation until such time as she fully complies. She also appeals the Board's imposition of a $5000 civil penalty. Our examination of the record satisfies us that the Board's final decision and penalty were properly premised on facts in the record and are consonant with the applicable statutory provisions. Accordingly, we affirm.

I.

The record discloses the following facts and procedural history leading to the administrative determinations under review. On January 9, 2009, TD Bank reported to the Medford Township Police Department that Constant received a check for $20,000 from C.L.1 (Charles), who was born in 1924, and it was concerned Charles might be the victim of a theft. Following an investigation by the police, defendant was charged in a complaint with a violation of N.J.S.A. 2C:30-4A, alleging she had diverted $682,839.10 of Charles's money.

In a February 3, 2011 letter, the Board informed Constant that it had been advised of her arrest for allegations of theft by deception and forgery arising out of her relationship with an elderly neighbor, Charles. The Board enclosed a proposed order of surrender of license, which advised her to sign to avoid the Board filing a formal complaint against her. On February 22, 2011, Constant signed the voluntary surrender upon the advice of her counsel. The order stated

This matter was opened by the New Jersey State Board of Nursing upon receipt of information that [Constant], on or about February 1, 2011, was arrested on charges of theft by deception in violation of N.J.S.A. 2C:20-4A. It appearing that there is good cause for the entry of this Order, and that [Constant] and the Board agree to its entry, the Board finding that this order is sufficiently protective of the public health, safety and welfare, and as this order shall remain in effect until further order of the Board. Accordingly,

IT IS ON THIS DAY OF [sic], 2011,

HEREBY ORDERED AND AGREED THAT

1. [Constant] shall hereby voluntarily surrender her nursing license and she shall refrain from the further practice of nursing until the criminal charges noted above have been adjudicated. [Constant] shall immediately forward her nursing license, along with her wallet-sized biennial renewal license forthwith to Susan Carboni, Deputy Attorney General . . . on behalf of the Board of Nursing.

2. This order is entered without any admission of any wrongdoing by [Constant] and without prejudice to any further investigation or prosecution of any matter by the Board of Nursing and the Attorney General or other law enforcement entities against [Constant].

In August 2011, Constant, through new counsel, filed an order to show cause seeking reinstatement of her voluntarily surrendered license. On August 19, the trial court denied the order to show cause "with the stipulation that it is returned at the end of the criminal case." In the order issued August 26, 2011, the court also pointed out that appellant "voluntarily surrendered her nursing license."

On March 28, 2012, a Burlington County grand jury indicted appellant, along with her husband, charging them with first-degree financial facilitation of criminal activity pursuant to N.J.S.A. 2C:21-25(a), (b)(1)-(2), (c), second-degree theft by deception pursuant to N.J.S.A. 2C:20-4(a)-(c), and second-degree conspiracy pursuant to N.J.S.A. 2C:5-2(a), for allegedly diverting funds in excess of $500,000 from Charles while he was appellant's patient.

However, on March 8, 2013, the Burlington County Prosecutor filed an order of nolle prosequi dismissing the charges against her. The order stated,

The victim has recently made statements to law enforcement conflicting with his earlier statements and also conflicting with additional information developed in the course of the investigation. These more recent statements tend to negate the inference that defendant[] converted the funds without his knowledge or permission. Further, the victim . . . does not wish the defendant[] to be punished.

However, the prosecutor's office also stated they are "satisfied that there remains a basis for prosecution notwithstanding the victim's recent statements." The prosecutor's office concluded that, "in light of victim's failing health and his clear communication that he does not want the case to proceed further, the State submits that dismissal of the indictment as to both defendants is appropriate."

In a March 18 letter, Constant advised the Board the prosecutor had filed the nolle prosequi and stated that she "rescind[ed] her voluntary surrender [and] . . . request[ed] that her license be reinstated immediately." The Board did not reinstate her license, but responded with a letter explaining that an investigative inquiry had been scheduled for May 7, 2013, pursuant to N.J.S.A. 45:1-18, which states in pertinent part

Whenever it shall appear to any board . . . that a person has engaged in . . . any act or practice declared unlawful by statute or regulation administered by such board, or when the board . . . shall deem it to be in the public interest to inquire whether any such violation may exist, the board . . . through the Attorney General . . . may exercise any of the following investigative powers

. . . .

b. Examine under oath any person in connection with any act or practice subject to an act or regulation administered by the board;

. . . .

In order to accomplish the objectives of this act or any act or regulation administered by a board, the Attorney General may hold such investigative hearings as may be necessary and the board, director or Attorney General may issue subpoenas to compel the attendance of any person or the production of books, records or papers at any such hearing or inquiry.

The Board informed her that at the hearing she would "be asked questions relating to her nursing practice, including her present and past employment" and her "dealings with [Charles], who was apparently a former client. The proceedings are similar to a deposition."

The hearing took place on May 7, 2013. At the beginning of the hearing, Constant's counsel stated that she was present "under objection" because the trial judge at the order to show cause hearing "said that if charges were dropped against her, that her license should be reinstated." Her counsel also expressed suspicion of racial animus underlying the criminal charges. The Deputy Attorney General (DAG) interrupted and suggested that the police may have just been pursuing her because of her "stealing half a million dollars from the client, and that's what we're here to talk about." Constant's counsel stated, "I object on the record [to you] stating my client is a thief; no one has established that." The DAG replied, "That's what we're here to do." Constant's attorney also explained that she had some questions she wished to put on record. The DAG said to counsel, "We're not here to hear what you have to say. We're here to do an investigative inquiry of your client. I'll give you the opportunity at the end of the inquiry to make a statement." The DAG told the attorney, "that's how it's going to proceed or you can leave and you'll subject your client to a duty to cooperate. It's up to you." Counsel responded, "she has a right to be represented, because this is her livelihood and therefore she has a right to know what the charges are against her." The DAG replied if appellant refused to answer the questions the Board asked of her, "she [would] be found in violation of her duty to cooperate and a complaint will be filed."

Constant's attorney repeatedly asked the DAG to state on the record why appellant was there. The DAG finally acquiesced, stating she was there pursuant to N.J.S.A. 45:1-18(b) and she had a duty to cooperate with the Board pursuant to her nursing license. Constant and her counsel conferred off record, and when they returned counsel stated,

Based on the hostility that I've experienced here when the DAG is telling me that I should shut my mouth when I'm representing my client zealously . . . it's obvious that this is a hearing that's already decided in terms of my client and . . . I would advise her not to continue.

Constant stated that she "would rather go to court."

On May 13, 2013, a provisional order of discipline was entered suspending appellant's license to practice until she cooperated with the Board's investigation and imposing a $5000 penalty. Constant responded to the provisional order by submitting her affidavit and a brief in opposition.

In her affidavit, she stated that she assisted Charles with daily affairs because his family did not live in New Jersey. She claimed that Charles asked her to "see to it that he [was] not placed in a nursing home because he wanted to remain in his home." She contended she promised Charles that she would do that and "assured him that if he was not allowed to stay in his home[] [she] would allow him to reside in [her] home." She stated that she "never asked [Charles] for any money" because she "considered him a family member," and she never acted as his nurse.

Around the time Constant agreed to assist Charles with his daily affairs, he opened up a joint account for both of them. She stated she "unexpectedly received a check from [Charles] in the amount of $20,000," and when she inquired about it, Charles told her "he wanted to give it to [her] and that if [she] didn't take it he would not speak with [her] anymore." She considered the money a gift.

When she tried to deposit the check in her account, there were insufficient funds. Charles went to the bank to inquire about what was happening, but after the check was returned the bank called the police. The transferred amount of $500,000, which formed the basis for the indictment, Constant stated was "grossly inaccurate."

The Board issued a final order of discipline on September 26, 2013. The order stated, "[t]he board would be loathe to issue a further order reinstating [Constant's] license when there is an open, ongoing, and continuing investigation as to whether [Contstant's] conduct forms the basis for discipline on grounds other than a conviction." The order further stated that she "cannot evade investigation by stonewalling and not providing information because she is disputing the Board's authority to investigate the underlying conduct merely because she was not convicted."

The Board determined that Constant

clearly violated the Uniform Licensee Duty to Cooperate regulation, N.J.A.C. 13:45C-1.2 and/or 13:45C-1.3. Based upon her failure to cooperate with an investigation by the Board, [Constant] is found to have engaged in professional misconduct pursuant to N.J.S.A. 45:1-21(e) and is found to have failed to comply with a regulation administered by the Board[] [under] N.J.S.A. 45:1-21(h).

Constant's license was "suspended for failure to cooperate with a Board investigation until she . . . fully cooperate[s] with the Board's investigation." The Board also imposed a $5000 civil penalty. It is from that order that Constant appeals.

Constant argues the Board should have returned her nursing license upon dismissal of the criminal charges. Further, she asserts the order was invalid because the Attorney General should have filed a verified complaint and order to show cause alleging her failure to cooperate before suspending her license. She also contends the hearing was not conducted in accordance with due process of law and did not establish her failure to cooperate. Finally, she asserts the amount of the sanction was improper, warranting vacation or modification.

Our scope of review of the Board's decision is limited. See, e.g., In re Herrmann, 192 N.J. 19, 27 (2007); In re License Issued to Zahl, 186 N.J. 341, 353 (2006); In re Polk License Revocation, 90 N.J. 550, 578 (1982). An administrative agency's decision generally will only be disturbed on appeal if there is a "clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Russo v. Bd. of Trs., Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citation and internal quotation marks omitted). In addition, "an agency's interpretation of its own regulations is [generally] entitled to substantial deference." Hartman v. N.J. Racing Comm'n, 352 N.J. Super. 490, 496 (App. Div. 2002). If, however, an issue on appeal poses a question of law, the reviewing court is not bound by an agency's "determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).

Constant's contention that her license should have been returned upon the dismissal of the criminal charges is belied by the record. The voluntary order she signed clearly put her on notice of possible proceedings by the Board. It provided

This order is entered without any admission of any wrongdoing by [Constant] and without prejudice to any further investigation or prosecution of any matter by the Board of Nursing and the Attorney General or other law enforcement entities against [Constant].

Constant next argues that the order suspending her license is not valid because the Attorney General did not file a verified complaint and order to show cause alleging failure by her to cooperate in the Board's investigation in violation of N.J.S.A. 45:1-18 and N.J.A.C. 13:45C-1.2, -1.3. Appellant points to Del Tufo v. J.N., 268 N.J. Super. 291, 295 (App. Div. 1993), as an example of the "Attorney General initiat[ing] a summary proceeding in the Law Division" in order to compel doctors to answer questions.

The Board argues that the use of the word "may" in N.J.S.A. 45:1-19 means that the provisions of the statute are not mandatory and merely provide the Attorney General with additional tools when dealing with an uncooperative licensee. The Board also asserts that the provisional order of discipline gave appellant notice of the allegations against her and a verified order and complaint would not have given any additional notice.

Pursuant to N.J.S.A. 45:1-18, the Attorney General has broad investigative powers, which include the power to

b. Examine under oath any person in connection with any act or practice subject to an act or regulation administered by the board;

. . . .

In order to accomplish the objectives of this act or any act or regulation administered by a board, the Attorney General may hold such investigative hearings as may be necessary and the board, director or Attorney General may issue subpoenas to compel the attendance of any person or the production of books, records or papers at any such hearing or inquiry.

Moreover, N.J.A.C. 13:45C-1.2 states that the failure to cooperate with a board investigation may subject a licensee to disciplinary action. Further, failure to respond to any demand for statement under oath or failure to answer any question pertinent to the Board's inquiry may be deemed a failure to cooperate, subjecting the licensee to suspension or revocation of licensure. N.J.A.C. 13:45C-1.3

N.J.S.A. 45:1-21 gives the Board the power to suspend or revoke a nurse's license on various grounds, including "violat[ing] or fail[ing] to comply with the provisions of any act or regulation administered by the board," which would include cooperating with the investigative powers afforded the Board by N.J.S.A. 45:1-18. Thus, we conclude it was not mandatory for the Attorney General to file a verified complaint and order to show cause alleging failure by appellant to cooperate in order to suspend Constant's license.

Appellant argues that she did not receive a proper investigative hearing because of the hostility on the part of the DAG and because the DAG would not let her attorney adequately represent her. Appellant argues that the May 7, 2013 hearing was not a sufficient hearing affording her the necessary process because of the hostility from the DAG and that any lack of cooperation occurred because of the DAG's behavior. She also asserts that the DAG infringed on her right to have counsel present with her at the hearing under N.J.A.C. 13:45C-1.3 because the DAG repeatedly interrupted her attorney and would not let her make statements. Constant argues that what occurred at the hearing could not be considered a failure to cooperate because the DAG did not actually ask any questions of her, and she cooperated by submitting an affidavit to the Board after the hearing. We disagree.

We acknowledge N.J.S.A. 52:14B-11 provides that in order for an agency to revoke or refuse to renew a license it must "afford[] the licensee an opportunity for a hearing in conformity with the provisions of this act." Those provisions require notice, an opportunity to be heard, an opportunity to present evidence, and an opportunity to confront the evidence against the licensee. N.J.S.A. 52:14B-9. The Supreme Court has also stated that "[t]he right to a hearing before a governmental agency, whose proposed action will affect the rights, duties, powers or privileges of, and is directed at, a specific person, has long been imbedded in our jurisprudence." Limongelli v. N.J. State Bd. of Dentistry, 137 N.J. 317, 328 (1993) (citation and internal quotation marks omitted). The Court emphasized fundamental fairness requires the Board to provide the licensee with a hearing. Id. at 324, 329; see also Polk, supra, 90 N.J. 579-80 (ruling that the Board could not summarily impose a revocation sanction without allowing the physician a sufficient hearing).

However, due process requirements, "which govern the proceedings of an agency that makes binding legal determinations directly affecting legal rights[,] do not apply to agency proceedings which are purely investigatory in nature." In re L.R., 321 N.J. Super. 444, 458 (App. Div. 1999); (quoting In re Allegations of Physical Abuse at Blackacre Acad., 304 N.J. Super. 168, 182 (App. Div. 1997)). Hearings held pursuant to N.J.S.A. 45:1-18 are investigative rather than judicial or quasi-judicial. Del Tufo, supra, 268 N.J. Super. at 299.

Here, Constant was afforded the proper process, but did not cooperate with the Board's investigative hearing. Thus, the suspension of her license was proper because the purpose of the May 7 hearing was not to suspend appellant's license or to affect her legal rights, but solely for an investigation. L.R., supra, 321 N.J. Super. at 458. This was not a case of the Board summarily imposing a sanction without allowing the licensee a sufficient hearing because Constant was given a chance to speak at the hearing and was informed of her duty to cooperate, but chose not to participate. Here, the suspension occurred because of Constant's failure to cooperate under N.J.A.C. 13:45C-1.2 and -1.3, not because of the alleged theft by deception.

Finally, Constant argues that the fine was improper because she did not fail to cooperate and because the amount of the fine was not tied to any specific costs. We also disagree with these contentions.

First, the record is clear Constant failed to cooperate since, after being advised of her obligation to cooperate, she left the hearing without subjecting herself to the Board's investigatory inquiry. Her argument that her affidavit was sufficient to evince cooperation is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

As to her contention the civil penalty be revoked or modified, we recognize the deferential standard applicable to our review "is not limited to whether a violation warranting discipline has been proven; . . . [it] 'applies to the review of disciplinary sanctions as well.'" In re Stallworth, 208 N.J. 182, 195 (2011) (quoting Herrmann, supra, 192 N.J. at 28). The Court has provided this guidance

A reviewing court should alter a sanction imposed by an administrative agency only when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency. In light of the deference owed to such determinations, when reviewing administrative sanctions, the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness. The threshold of shocking the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result.

[Herrmann, supra, 192 N.J. at 28-29 (citations and internal quotation marks omitted).]

Constant was subject to a civil penalty of not more than $10,000. N.J.S.A. 45:1-25(a). We conclude the $5000 sanction imposed is not illegal, and the penalty is not so disproportionate to the offense to shock our conscience.

Affirmed.

1 We use a pseudonym to protect his confidentiality.