We last left off with a broad comparative analysis between the four different professional regulatory systems in Vermont. Educators, attorneys, physicians and everyone else. I don’t plan on spending too much time, if any, in this series discussing attorney discipline. Namely because Bar Counsel Mike Kennedy is far more versed in this area and has already given a great overview of the Vermont attorney disciplinary system in his blog “Ethical Grounds.” Since the licensing system for Vermont Educators has been in the news as of late, I think it makes sense to start with that model and compare it to some of the others.
One of the interesting things about the disciplinary system for licensed educators, is that as far as I can tell there are no “rules” covering the process of educator discipline. When I use the term rules, I mean in the form of a rule promulgated by an agency, in this case the Agency of Education. The only thing that comes close is Vermont Agency of Education Rule 5700 which discusses the various types of educator discipline, but not the process of educator discipline. Contrast this with the Office of Professional Regulation’s Administrative Rules of Practice; The Rules of the Board of Medical Practice; and of course Vermont Supreme Court Administrative Order 9, which governs attorney disciplinary proceedings.
By contrast, the educator disciplinary process in Vermont is governed strictly by statute. In particular 16 V.S.A. Sections 1698-1708. Frankly that strikes me as a bit odd. Statutes often provide broad based authority, but later rely on the administrative expertise of a particular agency to flesh out the details. For example at the Federal level, enabling statutes for the EPA are far less detailed then the regulations promulgated pursuant to the authority granted by the statute. The only reason I can think of not to have detailed rules governing a license disciplinary process, is that it makes the process more confusing – – by intention. In other words, it is certainly possible that the various shareholders of the educator licensing process wanted the disciplinary process to be somewhat dysfunctional. The more dysfunctional, the more doubt. The more doubt, the more likely that the prosecuting authority is unable to meet the requisite burden of proof.
A brief word on the different types of burden of proof. One could write a whole primer on this issue, but I want to try to keep it simple. There are essentially three different burdens of proof that are used in various forums. The first and probably most well known because of its place in popular culture is “beyond a reasonable doubt.” This is the criminal standard and means that a prosecutor needs to convince each an every member of a jury that the accused is guilty, without leaving much room for doubt. A juror could have “unreasonable doubt” that an accused is innocent, but if that is all, then the prosecution has met its burden. Courts have refused to assign numerical percentages to burdens of proof, but generally speaking “beyond a reasonable doubt” would be between 95-99% or so sure that an accused was guilty. Why is the burden of proof is highest in criminal matters? Because there is so much at stake concerning liberty and in some states, life interests.
The lowest level burden of proof is by a “preponderance of the evidence” often explained by courts as “more likely then not” that an event occurred. This is the standard in civil cases and many administrative cases. Again to quantify, it means that the decider of fact is more than 50% certain that an event occurred.
Finally there is an intermediate burden of proof, proof “clear and convincing evidence.” This is probably the least well known burden of proof, except perhaps for those of us who have received certain traffic and fishing/hunting violations and have had to appear before the Judicial Bureau. This is evidence that establishes that the “truth of the facts asserted is highly probable.” It is difficult to quantify, but best guess would be somewhere in the 75-80% range.
Now how does this all relate to the professional disciplinary system? Professional disciplinary cases against attorneys, pursuant to Administrative Order 9, Rule 11(D)(5)(b) requires proof by “clear and convincing evidence.” Discipline against physicians pursuant to 26 V.S.A. Sec. 1354(c) requires proof by a “preponderance of the evidence.” Similarly prosecutors in the Office of Professional Regulation, need to prove their cases by a “preponderance of the evidence” pursuant to 3 V.S.A. Sec. 129a(c).
Now licensed educators have a very unique, bifurcated burden of proof. Here’s what the statute, 16 V.S.A. Sec. 1704(b) says: “Alleged unprofessional conduct or incompetence. The burden of proof in matters involving alleged unprofessional conduct or incompetence, including denial of a license based on alleged unprofessional conduct or incompetence, shall be on the Secretary by a preponderance of the evidence, except that in the case of revocation or suspension for more than one year, the proof shall be by clear and convincing evidence.” (Emphasis mine).
Getting back to the guidance counselor from Burlington High School, you will remember that the Agency of Education initially sought a 364 day suspension, just one day short of a year. I suspect (without knowing for sure) that the reason for this, was that the prosecution would have had a lower burden of proof. Now that the charges have been amended and the Agency of Education is seeking a revocation of the guidance counselor’s license, the State will need to prove it s case by “clear and convincing evidence.”
This of course begs the question, why do licensed educators have two separate burdens of proof? Isn’t this confusing? I suspect that as alluded to in Part 1, the answer likely has something to do with politics. But we can explore that more in a future post.
The next part of this series will take a look at who has the power to “charge” allegations of unprofessional conduct.