In re Bushey-Coombs

IN_RE_BUSHEY-COOMBS.91-393; 160 Vt. 326; 628 A.2d 541


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-393


 In re Tina Bushey-Combs                      Supreme Court

                                              On Appeal from

                                              Human Services Board

                                              November Term, 1992



 John Wesley, Chair

 Jeffrey L. Amestoy, Attorney General, Montpelier, Michael O. Duane,
    Assistant Attorney General, and Keith Aten, Law Clerk (On the Brief),
    Waterbury for defendant-appellant

 Wendy Morgan, Vermont Legal Aid, Inc., St. Johnsbury, for amicus curiae
    Vermont Low Income Advocacy Council


 PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ. and Peck, J. (Ret.),
           Specially Assigned



      JOHNSON, J.   The issue before the court is whether the standard of
 review employed by the Human Services Board in conducting a "fair hearing"
 pursuant to 3 V.S.A. { 3091, is de novo or appellate in nature.  Appellant
 Vermont Department of Social and Rehabilitation Services (SRS) contends that
 the Board erred in determining that its scope of review is de novo, and,
 after conducting its de novo review, the Board further erred in ordering SRS
 to expunge appellee's records from its child abuse and neglect registry.  We
 find that 3 V.S.A. { 3091 clearly contemplates the Board's employing a de
 novo standard of review and affirm.
      On November 15, 1990, appellee received notice from SRS that SRS
 intended to revoke her family day care home registration because she had a
 report of sexual abuse substantiated against her.  The alleged abuse
 occurred during the summer of 1986 between appellee, who was then fifteen
 years old, and the children she was babysitting, who were then eleven and
 eight years old.  The complaint of abuse, made four years after the
 incidents were alleged to have taken place, came about when the older boy,
 then fifteen and a half, reported them to his school guidance counselor who
 then contacted SRS.  SRS's investigation of the abuse included an interview
 with appellee herself, who claimed that the incidents were not a result of
 her exercising authority over the children but merely mutual exploration
 between herself and the boys.
      After appellee received the notice, she applied to the Human Services
 Board for an order expunging her records from the SRS registry, pursuant to
 33 V.S.A. { 4916(h).  The Board held a fair hearing under 3 V.S.A. { 3091,
 at which the burden was on SRS to establish that the record should not be
 expunged.  SRS argued that the Board was limited to appellate review of its
 decision and that de novo review of the evidence of abuse was improper, but
 the Board rejected that argument based upon its reading of { 3091.  Upon
 reviewing the evidence de novo, the Board reversed SRS's finding that the
 report of abuse was substantiated and ordered SRS to expunge the reports
 against appellee from its registry.  SRS appeals the Board's decision.
 Vermont Low-Income Advocacy Council, granted leave by this Court to file a
 brief as amicus curiae, argues that the statutory scheme and Vermont case
 law require that fair hearings before the Board be de novo.

      33 V.S.A. { 4916 provides:
           (a)  The commissioner of social and rehabilitation
           services shall maintain a registry which shall contain
           written records of all investigations initiated under
           section 4915 of this title unless the commissioner or
           the commissioner's designee determines after
           investigation that the reported facts are
           unsubstantiated . . . .      . . . .

           (h)  A person may, at any time, apply to the human
           services board for an order expunging from the registry
           a record concerning him or her on the grounds that it is
           unsubstantiated . . . . The board shall hold a fair
           hearing under section 3091 of Title 3 on the application
           at which hearing the burden shall be on the commissioner
           to establish that the record shall not be expunged.

 Pursuant to 3 V.S.A. { 3091(b), the fair hearing:
           shall be conducted by the board or by a hearing officer
           appointed by the board.  The chairman of the board may
           compel, by subpoena, the attendance and testimony of
           witnesses and the production of books and records.  All
           witnesses shall be examined under oath.

    After the hearing has been held, "[t]he board or the hearing officer shall
issue written findings of fact."  3 V.S.A. { 3091(c).
    Although nowhere in { 3091 does it expressly state that the fair
hearing is to be de novo, it is clearly implied by the language and pro-
visions of the statute.  The Board is specifically empowered to compel
testimony and evidence by subpoena, examine witnesses and issue written
findings.  This leaves no doubt that the type of hearing contemplated under
{ 3091 is evidentiary in nature.  Such specifically granted powers would be
meaningless if the Board were limited to determining only whether or not
SRS had sufficient evidence to support its conclusions.  SRS would have us
limit the Board to appellate review of the record established by SRS itself
 because the statute uses the term "appeals."  A close examination of the
 statute reveals that the term "appeals" is used synonymously with the
 phrase "request for a fair hearing," and both terms are used to refer to
 contesting agency actions and not to imply a limited scope of review.  See
 3 V.S.A. { 3091.  Further evidence that the hearing contemplated is to be
 de novo is found in 33 V.S.A. { 4916(h), which places the burden of proof
 with SRS to show why the record should not be expunged.  By requiring SRS
 to come forward with evidence to meet its burden, the legislature intended
 to allow the Board to make determinations beyond those allowed by review of
 the SRS record.
      SRS further contends that the Board is not authorized to substitute its
 judgment for that of SRS.  To support its argument for the presumptive
 validity of agency decisions, SRS erroneously cites to cases that found such
 a presumption where there was judicial review of an administrative decision.
 See Piche v. Department of Taxes, 152 Vt. 229, 233, 565 A.2d 1283, 1286
 (1989) (superior court committed error by reversing commissioner's
 discretionary decision because there was no abuse of discretion shown); In
 re Johnston, 145 Vt. 318, 321-22, 488 A.2d 750, 752 (1985) (Court applies a
 deferential standard of review to Vermont State Liquor Control Board
 decisions made within its expertise).  Here, we are not faced with the scope
 of judicial review of the decision of an administrative agency, but with the
 scope of an administrative board's review of orders of an administrative
 agency.  SRS bases its orders upon the record created by its own
 investigations; SRS's determinations are therefore significantly different
 in nature from those of an adjudicative body.  Furthermore, it is the
 Board's order that is the final agency decision for purposes of judicial
 review, not that of SRS.  See 3 V.S.A. { 3091(f).  Judicial deference to the
 agency's determination applies therefore to the findings and orders of the
 Board, not to those of SRS, and does not apply to the Board's review of
 SRS's decisions.
      We hold that the statutory scheme taken as a whole clearly contem-
 plates the Board's power to review de novo evidence of abuse in conducting
 fair hearings pursuant to { 3091.  To find otherwise would render useless
 the specific powers granted to the Board in { 3091.
      In the present case, SRS failed to meet its evidentiary burden,
 pursuant to 33 V.S.A. { 4916(h), to show why the record of abuse against
 appellee should not be expunged.  Absent such a showing by SRS, it was
 fully within the Board's power to reverse SRS's finding that the report of
 abuse was substantiated and to order that appellee's records be expunged.
      Affirmed.

                                    FOR THE COURT:



                                    _______________________________
                                    Associate Justice