In re Smith

Annotate this Case
In re Smith    (97-417); 169 Vt. 162; 730 A.2d 605

[Filed 9-Apr-1999]

       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. 97-417

In re Trudy J. Smith	                    Supreme Court

                                            On Appeal from
                                            Washington Superior Court

                                            June Term, 1998

Alan W. Cheever, J.

       William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan,
  Assistant Attorney General, Montpelier, for Appellant.

       Paul Gillies of Tarrant, Marks & Gillies, Montpelier, for Appellee.

PRESENT:  Dooley, Morse, Johnson, and Skoglund JJ., and Cashman, D.J.,
          Specially Assigned

       SKOGLUND, J.  The State appeals the Washington Superior Court's remand
  of the Board  of Nursing's decision to suspend the nursing license of
  appellee, home-health nurse Trudy Smith.  The superior court remanded the
  case, ordering the Board to apply a clear and convincing  standard of
  proof, rather than preponderance of the evidence, and on remand to exclude
  from  consideration hearsay evidence presented by the State in the
  suspension hearing.  We reverse and  reinstate the Board's decision.

       Appellee served as the primary home-health nurse for two elderly
  patients, L. and M, who  accused her of taking some of their prescription
  Percocet, a narcotic drug, during September and  October 1994.  At the time
  of the alleged misappropriations of Percocet, appellee possessed a 
  probationary nursing license from the Board that contained a condition
  requiring her to remain  drug and alcohol-free.  On October 17, 1994, prior
  to L. and M.'s reporting the allegations, the  Board had fully reinstated
  defendant's license.  On October 28, 1994, during a regularly 


  scheduled visit from another home-health nurse, who until the spring of
  1994 had been their  primary nurse, M. reported that some of their drugs
  were missing and that they suspected appellee  took them.  The nurse
  immediately called the home-health supervisory nurse to relay the 
  allegations.  The supervising nurse met that same day with the patients to
  discuss the allegations  and then reported appellee to the Board.  As a
  result of the Board's investigation into the  allegations, it charged
  appellee with unprofessional conduct. 

       On December 13 and 14, 1994, the Board held an evidentiary hearing. 
  Neither L. nor M.  testified at the hearing.  Appellee's supervisor and the
  other home-health nurse testified at the  hearing regarding L. and M.'s
  accusations.  The supervising nurse stated that M. said she kept  her
  bottle of Percocet by the telephone, moved it to her sock drawer after she
  noticed some tablets  missing, and then she did not notice any more tablets
  disappearing.  L. reportedly conveyed a  similar set of facts to the
  supervising nurse.  He kept his bottle of Percocet by the kitchen sink, 
  changed the location to a cupboard next to the kitchen sink after he had
  noticed that tablets were  missing, continued to find tablets were missing,
  and then put them in another cupboard in the  kitchen behind boxes of
  pasta, after which  no further tablets disappeared.  The supervising nurse 
  testified that these patients said appellee would make unscheduled visits
  on occasion, either to use  the telephone or to use the bathroom. 
  According to the supervising nurse, both patients said that  on the
  occasions when she used the bathroom she would wash her hands at the
  kitchen sink even  though there was a sink in the bathroom.  She also
  testified to the fact that patient M. was  hospitalized on October 8 and
  returned to home-health care on October 14.  

       The patients' former primary home-health nurse testified concerning
  their physical  ailments and current health status.  According to her, M.'s
  medical condition kept her in the  apartment and, although L. did sometimes
  go out, it would have been difficult for him to make  it to the hearing
  given the cold weather.  The nurse described a home-health visit on October
  18,  1994, in which L. displayed uncharacteristic anger and ranted about
  the home-health nurse  service.  She stated that it seemed to her a
  disproportionate reaction to the scheduling confusion  that had arisen 


  that day.  She then related the circumstances in which M. first reported
  her suspicions of appellee  and what M. had specifically said.  Further,
  she testified that M. appeared distressed by making  the report and said
  that M. stated she cared for the appellee and wanted her to get help. 
  Finally,  the nurse testified to the patients' continued emotional distress
  and decline in physical health since  they had reported their suspicions of

       The State adduced further testimony regarding L. and M.'s allegations
  from the  investigator on the case.  The investigator spoke to L. and M. in
  the presence of the supervising  nurse.  L. reportedly related to him the
  following incident.  L. stated that, to discover who was  taking their
  Percocet, he and M. devised the plan to plant two tablets near the
  telephone in M.'s  bedroom and to check if they were still there each time
  after a visitor left.  While M. was in the  hospital, appellee made an
  unscheduled visit to the apartment.  She used the telephone, and, after 
  she had left, L. found that the two Percocet were gone.  The investigator
  in addition testified to  his review of L. and M.'s pharmacy records,
  confirming M.'s Percocet prescription and clarifying  that what L. had
  sometimes referred to as Percocet was actually a prescription for Propacet, 
  another narcotic drug.

       In his opening statement, appellee's attorney stated that, "evidence
  as it will be presented  to you today lacks a core piece of evidence; that
  is, the presence of L. and M."  He went on to  explain hearsay under the
  rules of evidence and the hearsay rule for administrative proceedings, 
  then stating that the testimony the State presented would test these rules.
  Nonetheless, the  witnesses testified to the facts detailed above without
  objection from appellee to the specific  questions or answers.  In fact,
  during the testimony appellee raised only one objection -- when the  State
  questioned whether M. told the home-health nurse what L.'s feelings were
  about the  disclosure.

       Applying a preponderance of the evidence standard of proof, the Board
  found that the  appellee took two Percocet from L. and M.'s apartment
  during the week of October 8, 1994.  The  Board concluded that: appellee's
  unprofessional conduct was of a character likely to harm the 


  public; diversion of the Percocet was a violation of the conditions on
  appellee's license at the time  of the incident; and, based on a review of
  her pharmacy records over the past eight years,   appellee had an active,
  untreated addiction to narcotics.  The Board ordered appellee's license 
  suspended, conditioning reinstatement on fulfillment of certain conditions. 

       Appellee appealed the Board's decision to an appellate officer,
  contending there was  insufficient evidence to support the Board's findings
  and conclusions and attacking the Board's  reliance on hearsay evidence. 
  Without reaching the hearsay issue the appellate officer upheld the 
  Board's conclusion that appellee had an active, untreated addiction to
  narcotics, but reversed the  Board's other conclusions.  By characterizing
  the burden of proof in a "theft" case as requiring  more than evidence of
  nonexclusive opportunity to take the object later found missing, which the 
  Board found the State had not even shown, and by citing to a criminal case
  in support, the  appellate officer appeared to employ the criminal law
  standard of proof:  beyond a reasonable  doubt.  Both parties appealed to
  the superior court.

       Before the superior court, appellee continued to contest the Board's
  conclusions on  sufficiency of the evidence grounds.  That is, appellee
  argued insufficient evidence existed to  uphold the Board's conclusion
  appellee had an active, untreated addiction.  By contrast, the State 
  appealed the appellate officer's use of the criminal law standard of proof,
  arguing that the officer  should have upheld the Board's decision based on
  the standard of proof the Board had applied,  that is, preponderance of the
  evidence.  In addition, the State asked the court to address the  hearsay
  issue.  The State maintained that appellee waived any challenges to
  admissibility by failing  to adequately object to the presentation of the
  hearsay statements at the time the Board heard the  testimony. 

       The superior court rejected both the standard of proof applied by the
  appellate officer and  the standard of proof applied by the Board, holding
  instead that, given the seriousness of the  disciplinary process and the
  potential loss of livelihood, the Board should have applied a clear and 
  convincing evidence standard of proof.  The court therefore remanded the
  case back to the Board 


  for a new evidentiary hearing.  At the parties' request and in the interest
  of judicial economy, the  court addressed the question of whether the
  hearsay evidence presented at the first hearing would  be admissible if the
  Board heard the matter again on remand.  The court ruled that on remand the 
  hearsay statements would be inadmissible. 

       The State's appeal to this Court followed.  On appeal, the State
  asserts, as it did before  the superior court, that the Board's decision
  applying the preponderance of evidence standard to  the disciplinary
  hearing should have been upheld.  Further, the State again maintains
  appellee  waived her hearsay objections.  Finally, it continues to argue
  that, employing the preponderance  of evidence standard, sufficient
  evidence existed to support the Board's finding appellee took two  Percocet
  tablets from the patients' apartment during the week of October 8, 1994.

       We first address this Court's jurisdiction to consider the appeal as
  it was not taken from  a final judgment.  See Huddleston v. University of
  Vt., ___ Vt. ___, ___, 719 A.2d 415, 417  (1998) (superior court's remand
  to university did not resolve controversy between parties and  therefore
  was not final judgment); In re Cliffside Leasing Co., Inc., ___ Vt. ___,
  701 A.2d 325, 325 (1997) (mem.) (no final judgment where environmental
  court remanded matter for town's  review of permit application).  Although
  the State failed to request permission to take an  interlocutory appeal,
  see V.R.A.P. 5., we have previously suspended application of Rule 5 where 
  dismissal would most likely result in another appeal after remand, the
  merits of the question of  law were fully briefed and argued, and the Court
  has expended valuable time on the case.  We  therefore exercise our
  discretion under V.R.A.P. 2 to entertain the appeal.


       The State claims that both the appellate officer and the superior
  court erred by applying  the wrong standard of proof.  According to the
  State, the Board properly applied the  preponderance of evidence standard
  in rendering its decision, but the appellate officer and the  superior
  court committed error in measuring the Board's findings of fact against the

  respectively, of beyond a reasonable doubt and of clear and convincing
  evidence.(FN1)  Appellee  urges us to affirm the superior court's
  determination that nurse licensing proceedings merit the  higher civil
  standard reserved for important rights.  

       Neither party argues in favor of the appellate officer's apparent use
  of beyond a reasonable  doubt as the standard by which to judge the
  evidence here, and we can quickly dispense with that  standard as in any
  way applicable to this case.  The superior court correctly concluded the 
  appellate officer erred since we have previously held that an allegation
  underlying a civil  proceeding that could potentially comprise the basis
  for a criminal charge does not change the  burden of proof in the civil
  case.  See Harrington v. Department of Employment and Training,  152 Vt.
  446, 448-49, 566 A.2d 988, 990 (1989); Lyndonville Sav. Bank & Trust Co. v.
  Peerless  Ins. Co., 126 Vt. 436, 439, 234 A.2d 340, 342 (1967).   Thus, we
  turn to the more substantial  question of whether to uphold the Board's use
  of the preponderance standard or to affirm the  superior court's remand for
  application of the clear and convincing evidence standard.

       Our case law provides that preponderance of the evidence is the usual
  standard of proof  in state administrative adjudications.  See Huddleston,
  ___ Vt. at ___, 719 A.2d  at 417 (1998).  That is, the burden of persuasion
  on factual issues before an administrative body is normally met  by a
  preponderance of the evidence.  See In re Muzzy, 141 Vt. 463, 472, 449 A.2d 970, 974  (1982).  We have upheld an agency's deviation from the normal
  civil standard in two instances,  both of which applied the clear and
  convincing evidence standard in a civil fraud situation.  See  Harrington,
  152 Vt. at 449, 566 A.2d  at 990; Garber v. Department of Soc. Welfare, 139
  Vt.487,  491, 431 A.2d 469, 472 (1981).   

       The State contends a 1997 legislative amendment, which was adopted
  after the 


  commencement of this action and which established preponderance of the
  evidence as the burden  of proof for licensing board disciplinary actions,
  supports the Board's use of the preponderance  standard in this case. 
  Appellee counters that, rather than confirming existing practice, the 
  enactment indicates a material change in the standard.

       The Nursing Board has long had the authority to investigate complaints
  of unprofessional  conduct, see 26 V.S.A. § 1574(7), and to suspend or
  condition nursing licenses for conduct  likely  to harm the public, see id.
  § 1582(a).  The enabling statute does not state an evidentiary standard 
  for license suspension proceedings.  See id. §§ 1571-1584.  In discharging
  its regulatory powers,  however, the Board's practice has been to employ
  the preponderance of the evidence standard in  disciplinary actions. In
  addition to the nursing statute, Vermont's Administrative Procedure Act 
  (APA) conditions the Board's exercise of its regulatory authority.  See id.
  §§ 1582(a) (requiring  notice and opportunity for hearing under APA), (b)
  (requiring Board to establish disciplinary  process based on APA); see also
  previous version id. § 1573(8) (Cum. Supp. 1993) (requiring  Board to adopt
  rules under APA necessary for implementation of statute).  Since 1989, the 
  professional regulation statute has further defined the Board's
  disciplinary powers.  See 3 V.S.A.  § 129.  Like the Board's enabling
  statute, however, at the time of the hearing at issue both  Vermont's APA
  and the professional regulation statute were silent with respect to the
  proper  standard of proof for contested-case hearings.  See id. §§ 129,
  809-815; but see id. § 129a(b)  (Cum. Supp. 1998) (enacted subsequent to
  commencement of instant litigation).  

       Although the Court as well as the administrative agency must adhere to
  legislative intent  as unambiguously expressed by the plain language of a
  statute, where a statute is silent or  ambiguous regarding a particular
  matter this Court will defer to agency interpretation of a statute  within
  its area of expertise as long as it represents a permissible construction
  of the statute.  See  Dutton v. Department of Soc. Welfare, ___Vt. ___,
  ___, 721 A.2d 109, 111 (1998); Shedrick  v. Department of Soc. Welfare, 158
  Vt. 541, 546, 613 A.2d 692, 694 (1992).  When the  Legislature fails,
  however, to establish the degree of proof required in an administrative 


  proceeding, the court is the traditional and most appropriate forum to
  prescribe a standard.  See  Bender v. Clark, 744 F.2d 1424, 1429 (10th Cir.
  1984); see also 2 K. Davis & R. Pierce,  Administrative Law Treatise § 10.7
  at 169 (3d ed. 1994) (preponderance of evidence is standard  applicable to
  most factual issues, but Congress or courts sometimes establish higher
  standard  applicable to particular class of disputes); cf. Huddleston, ___
  Vt. at ___, 719 A.2d  at 417-18  (nothing in APA or Court's previous
  interpretations of burden of proof applicable to certain  agency 
  adjudications alters conclusion that statute authorizing University of
  Vermont to determine  student residency encompasses adoption of burden of
  proof).  We therefore review on a  nondeferential basis the question of
  which standard of proof the Board should have used to  evaluate the
  evidence in this disciplinary action against appellee's nursing license.

       The 1997 act, entitled "An Act Relating to Efficiency in the
  Regulation of Professions and  Occupations," added a provision that states
  the "burden of proof in a disciplinary action shall be  on the state to
  show by a preponderance of evidence that the person has engaged in
  unprofessional  conduct."  1997, No. 40, § 5 (codified as 3 V.S.A. §
  129a(b)).  Absent an express legislative  declaration that an enactment
  amends or clarifies existing law, an enactment considered alone does  not
  indicate whether it effects a change in form or substance, and thus we look
  to circumstances  surrounding the enactment.  See N. Singer, 1A Sutherland
  Statutory Construction § 22.30, at 267  (5th ed. 1994); see also Fitzgerald
  v. Congleton, 155 Vt. 283, 291 n. 6, 583 A.2d 595, 600 (1990)  (noting
  that, where language change is part of general statutory revision as
  opposed to direct  amendatory act, arguably change may not be intended to
  alter meaning); Town of Cambridge v.  Town of Underhill, 124 Vt. 237, 241,
  204 A.2d 155, 158 (1964) (stating that, despite rule of  presumed change,
  we will not implement interpretation contrary to legislative intent where 
  circumstances indicate clarification).  Prior to the Legislature's adoption
  of the blanket burden-of-proof provision applicable to all licensing board
  regulation of unprofessional conduct, it had begun  piecemeal amendment of
  some regulatory sections governing specific professions by adding more 
  detailed provisions on "unprofessional conduct" and "disciplinary action." 
  See, e.g., 1991, No.


  236 (Adj. Sess.) (codified as 26 V.S.A. § 541 (unprofessional conduct and
  discipline of  chiropractors)); 1989, No. 253 (Adj. Sess.) (codified as 26
  V.S.A. §§ 1842-1843 (unprofessional  conduct and discipline of
  osteopaths)).  These earlier amendments likewise placed the onus 
  specifically on the State to demonstrate unprofessional conduct by a
  preponderance of the  evidence.  "The burden of proof in a disciplinary
  action shall be on the state to show by a  preponderance of the evidence
  that the person has engaged in unprofessional conduct."  26 V.S.A.  §§
  541(d), 1843(b).  The subsequently enacted blanket provision used precisely
  the same  language.  Compare 3 V.S.A. § 129a(b).  Further, the blanket
  burden-of-proof provision  overrides contrary standards of unprofessional
  conduct set forth elsewhere.  See 1997, No. 40 §  5 (codified as 3 V.S.A. §
  129a(d)).  Thus, for those statutory sections previously silent concerning 
  the burden of proof, § 5 constitutes an addition, and, for those sections
  previously setting forth  the burden of proof, § 5 constitutes an

       We do not construe the addition of a burden of proof to the umbrella
  "unprofessional  conduct" statute, as appellee would have it, as lowering
  the burden of proof in the nursing statute  from clear and convincing
  evidence to preponderance of the evidence.  We would hesitate to infer  a
  higher standard of proof from legislative silence.  See 2 K. Davis & R.
  Pierce, Administrative  Law Treatise § 10.7 at 170-71 (3d ed. 1994).  Thus,
  we conclude that the Legislature's adoption  of language for all licensing
  boards identical to that previously adopted for specific professions 
  relates to the Act's purpose of more efficient regulation.  That is, by
  setting one standard for all  professions and occupations regulated by the
  Secretary of State the Legislature intended, not to  lower an extant burden
  of proof for nurse licensing actions, but to avoid the inefficiency of 
  administering a patchwork of standards adopted by various Boards.  Hence,
  while the addition of  3 V.S.A. § 129a(b) does not directly support the
  State's position, neither does it favor appellee. 

       Appellee next argues against the generally accepted civil standard on
  the basis that a  license suspension is punitive in nature and that her
  ability to make a living in her chosen field  has been affected.  Both
  claims implicitly rest on due process grounds.  The due process 


  requirements imposed by Article 10 of the Vermont Constitution mirror those
  imposed by the  United States Constitution.  See Relation v. Parole Bd.,
  163 Vt. 534, 537-38, 660 A.2d 318, 319-20 (1995); see also LaFaso v.
  Patrissi, 161 Vt. 46, 51, 633 A.2d 695, 698 (1993) (adopting  Mathews v.
  Eldridge, 424 U.S. 319, 335 (1976)).  Since the process due in a given
  administrative  proceeding depends on the interest at stake, we first note
  that appellee misconstrues In re Ruffalo,  390 U.S. 544, (1968), the case
  upon which she relies in contending that professional discipline  is a
  quasi-criminal process.  Although Ruffalo is a professional discipline
  case, the Court reversed  for lack of proper notice, not for the burden of
  proof applied at the hearing.  See id. at 551.  The  Ruffalo Court
  concluded that appellee had not been afforded due process because he was
  unaware  of all the charges against him until after he had testified.  See
  id. at 549-551. 

       While we disagree that a license suspension hearing approximates a
  criminal action for the  purpose of establishing a burden of proof, we
  recognize that the appellee has a substantial interest  in maintaining her
  license, and thus her livelihood.  Here, the interest is somewhat tempered
  by  the fact that the Board has not permanently removed her ability to
  practice her chosen profession.  See Gandhi v. Medical Examining Bd., 483 N.W.2d 295, 299 (Wis. App. 1992) (noting  possibility of relicensing as
  factor to consider in balancing respective interests).  The State  likewise
  has a substantial interest in regulating the nursing profession.  As
  expressed by the statute  itself, the purpose underlying governmental
  regulation of the nursing profession is safeguarding  the "life and health
  of the people of this state."  26 V.S.A. § 1571.  Since Vermont's APA 
  governs nursing disciplinary actions, several procedural protections are
  afforded nurse licensees  such as:  notice of the charges; opportunity to
  present evidence and argument; compulsion of  witnesses' testimony by
  subpoena; cross examination of witnesses; modified evidentiary rules; and 
  findings of fact based on the evidence and matters officially noticed.  We
  conclude that these  statutory procedures, together with the preponderance
  of evidence burden of proof placed on the  State, afforded the
  constitutional process due to appellee.  Where substantial interests exist
  on both  sides, due process demands no more than an equal apportionment of
  the risk of error, which the 


  preponderance standard accomplishes.  See In re Walton, 676 P.2d 1078, 1085
  (Alaska 1983);  see also Steadman v. Securities & Exch. Comm'n, 450 U.S. 91,
  102 (1981) (preponderance of  evidence standard satisfied government's
  burden of proof in securities fraud action even though  proceeding could
  result in permanently barring licensee from practicing profession); Johnson
  v.  Board of Governors of Registered Dentists, 913 P.2d 1339, 1353 nn. 1-2
  (Okla. 1996) (Summers,  J., dissenting) (vast majority of states have
  upheld preponderance standard for medical  professionals; only four have
  struck it down on constitutional challenge).  

       To the extent that appellee seeks application of the higher civil
  standard on non-constitutional grounds, we note that the only precedent
  for employing the higher standard in this  state is in cases where the
  alleged conduct was at least ostensibly analogous to civil fraud.  
  Harrington, 152 Vt. at 449, 566 A.2d  at 990 (administrative penalty for
  intentional  misrepresentation of amount of income earned while receiving
  unemployment compensation);  Garber, 139 Vt. at 491, 431 A.2d  at 472
  (analogizing proof of recipient's wilfulness in  overpayment of welfare
  benefits, manifested by failure to report unemployment benefits, to civil 
  fraud situation).  Here, the allegations concern misappropriation, not
  civil fraud.  Consequently,  under our case law on administrative
  adjudications, the Board appropriately applied the  preponderance of the
  evidence standard. 


       We next address the argument that, by failing to object to the hearsay
  testimony of L. and  M., appellee was precluded from raising a hearsay
  objection on appeal.  Appellee claims she made  a proper objection to the
  use of the hearsay statements, and the Board therefore erred in relying  on
  hearsay statements to support suspension of her license.  According to
  appellee, the comment  regarding hearsay in the opening statement that,
  "evidence as it will be presented to you today  lacks a core piece of
  evidence; that is, the presence of L. and M.," put the Board on notice of 
  appellee's objection to any third-party testimony involving these two
  declarants.  We disagree.

       Although agencies must generally follow the rules of evidence,
  Vermont's APA relaxes 


  the rules of admissibility for agency proceedings, including nursing board
  disciplinary actions.  See 3 V.S.A. § 810(1) (evidence not admissible under
  rules of evidence may be admitted if it is  of type commonly relied on by
  reasonably prudent people in conduct of their affairs); 26 V.S.A.  §
  1582(b)(6); In re Central Vt. Pub. Serv. Corp., 141 Vt. 284, 292, 449 A.2d 904, 909 (1982).  Moreover, even in proceedings that adhere strictly to the
  rules of evidence, a hearsay issue may  not be raised for the first time on
  appeal absent preservation by specific, timely objection during  the
  proceeding.  See V.R.E. 103(a); Lanphere v. Beede, 141 Vt. 126, 129, 446 A.2d 340, 341  (1982). 
       Here, appellee did not specifically object to most of the testimony of
  the supervising nurse,  the home-health care nurse, or the investigator. 
  Indeed, the Board sustained the only hearsay  objection that appellee did
  make in a timely manner.  The State noted certain hearsay exceptions,  such
  as excited utterance, in its opening statement to the Board.  And, given
  the testimony  concerning L. and M.'s unavailability, that is their
  physical inability to travel to the hearing, the  State appeared prepared
  to tender offers of proof for admission of the testimony concerning L.  and
  M.'s allegations.  The Board might well have admitted most or all of the
  testimony over  appellee's objection depending on the State's offer of
  proof to each objection.  Appellee's failure  to object, however, deprived
  the State of the opportunity to articulate an offer of proof and the  Board
  of the opportunity to engage in any analysis or balancing.  We conclude
  appellee did not  make the required specific objection to preserve a
  hearsay challenge.    


       Finally, we turn to the question of whether the State presented
  sufficient evidence to  sustain under the preponderance standard the
  Board's finding that appellee took two Percocet  tablets from L. and M.'s
  apartment during the week of October 8, 1994.  As explained above, the 
  "burden of persuasion on factual issues before an administrative body is
  met by the usual civil  case standard of a preponderance of evidence." 
  Muzzy, 141 Vt. at 472, 449 A.2d  at 974 (internal  quotation omitted).  "If
  the conflicting evidence of the parties is of equal weight, or if the 


  of the grievant outweighs that of the State, the evidence of the State does
  not preponderate."  Id.  at 472-72, 449 A.2d  at 974 (citations omitted). 
  In reviewing the Board's decision, we will not  set aside its findings of
  fact unless they are clearly erroneous.  See In re McGrath, 138 Vt. 77, 
  82, 411 A.2d 1362, 1365 (1980).  

       In this case, we find no evidence of clear error.  The Board found
  credible the three  witnesses that testified concerning L. and M.'s
  allegations.  Appellee asserts insufficient evidence  supports the finding
  because it is undermined by another of the Board's findings that, according 
  to the State expert's definition of addiction, L. was himself addicted to
  the narcotic drug Propacet.  Appellee therefore propounds the theory that
  L. concocted the misappropriation story and placed  the blame on appellee
  in order to cover for himself when he requested a prescription refill prior 
  to the regular renewal period.  To the contrary, we conclude that the
  Board's inclusion of the  finding regarding L.'s addiction demonstrates
  that the Board engaged in a fair assessment of the  evidence, including
  findings that weighed both for and against its ultimate conclusions. 
  Appellee  discounts, however, the testimony of several witnesses concerning
  the reluctance with which M.  initially reported her suspicion and the
  emotional and resultant physical difficulties L. and  particularly M.
  experienced after the disclosure.  Although appellee points to some
  potentially  conflicting evidence, we conclude it is relatively
  insignificant compared to the other evidence and  not enough to tip the
  scales in her favor.  In light of the full evidence before the Board, we
  hold  it properly found that the State's evidence preponderated.  On
  balance the weight of evidence  supports the Board's finding that appellee
  took two Percocet from L. and M.'s apartment.  


                               FOR THE COURT:
                               Associate Justice


FN1.  The State claims as a threshold matter that we should not reach
  the standard of proof issue  because appellee failed to preserve an
  objection to application of the preponderance standard.  We  disagree in
  light of the appellate officer's recourse, sua sponte, to a different
  standard and the  superior court's use of yet a third standard.