A Brattleboro in-patient mental health facility reported to the Vermont Board of Nursing its determination that a nurse on its staff had diverted narcotic drugs. The Board director referred the matter to a prosecuting attorney in the Office of Professional Regulation, who filed charges alleging unprofessional conduct under four statutes and obtained a summary suspension of the nurse's license.
The record describes the case as starting with the employer's report; the court opinion does not detail how the facility reached its determination. The charge and its fallout also produced separate litigation over unemployment benefits and against the employer.
In February 2011 the nurse, then represented by counsel, entered a consent order that the Board approved in April 2011. The order continued the suspension and set conditions for reinstatement, while stating that it was not an admission of liability. About a year later the nurse, acting without counsel, asked the Board to vacate the order, saying he had not committed the conduct and had signed under pressure from his attorneys. After a hearing at which he was the only witness, the Board vacated the consent order and dismissed the charges without prejudice.
The State appealed. An appellate officer reversed the Board, finding among other things that it had made no findings of fact and had denied the State a chance to present evidence. The Vermont Supreme Court in September 2014 held that OPR attorneys represent the State and may appeal adverse board decisions, and reinstated the appellate officer's ruling, leaving the matter open for further proceedings before an independent hearing officer.