Marina Narowetz v. Board of Dental Practice, 259 A.3d 771

Background

Marina Narowetz, a Maine-licensed dentist, received a records request from a patient’s attorney in late September 2018; delivery attempts in October 2018 were returned/refused and the attorney filed a complaint with the Board of Dental Practice.
The Board twice offered consent agreements (admitting unprofessional conduct, $1,500 penalty, CE) which Narowetz rejected; the Board then scheduled an evidentiary hearing.
Assistant Attorneys General Andrew Black and Adria LaRose were present during Board meetings; Black advised the Board and later, at the evidentiary hearing, participated as a prosecutor—presenting evidence, examining witnesses, and making arguments.
The hearing officer ruled the burden was a preponderance of the evidence and stated Black was acting as the moving party on behalf of the Board staff.
The Board’s written decision concluded Narowetz engaged in unprofessional conduct and imposed discipline (reprimand, CE, $1,500 fine, probation), but the written opinion largely summarized testimony without stating which evidence it credited or the factual bases for sanctions.
The Superior Court affirmed; on appeal the Maine Supreme Judicial Court vacated that judgment, holding the Board’s findings were insufficient for review and that Black’s advisory-then-advocate role violated the separation-of-functions requirement of 5 M.R.S. § 9055, warranting remand and a new evidentiary hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of factual findings	Board merely summarized testimony; failed to state ultimate/basic facts explaining why misconduct and the chosen sanction were found	Board relied on record/testimony and its summaries were adequate	Board’s findings were insufficient; remand required for articulated findings explaining credibility and basis for sanction
Commingling of advisory and advocacy roles (5 M.R.S. § 9055)	Black advised the Board and then acted as prosecutor; statute forbids counsel who advise the Board to later advocate in same matter	Board/AG: Black’s advisory role was technical; he did not act as an advocate solely for a ‘‘party’’ so §9055 did not apply	Black’s advisory-then-prosecutorial participation violated §9055; remand for a new evidentiary hearing without commingled roles
Burden/standard of proof	Hearing officer should have applied clear-and-convincing standard	Board/AG argued preponderance applies in disciplinary proceeding	Court did not resolve as dispositive; primary remedies premised on findings deficiency and §9055 violation (proceedings must be redone)
Other procedural claims (expert proof, motion to take additional evidence, board bias)	Board needed expert proof for professional standard; motions to take extra evidence should be allowed to probe bias and irregularities	Board: applicable rule defines misconduct; expert unnecessary; motions were properly denied or unpreserved	Expert testimony not required here given board rule; motion to take additional evidence denied below was mostly moot or unpreserved; main relief was remand/new hearing due to §9055 and insufficient findings

Key Cases Cited

Doane v. Dep’t of Health & Hum. Servs., 250 A.3d 1101 (procedural review standard for 80C appeals)
Gashgai v. Bd. of Registration in Med., 390 A.2d 1080 (agency must state basic and ultimate facts to permit review)
Cumberland Farms N., Inc. v. Me. Milk Comm’n, 234 A.2d 818 (ultimate facts alone insufficient; need underlying basic facts)
Christian Fellowship & Renewal Ctr. v. Town of Limington, 769 A.2d 834 (recital of positions/evidence is not a substitute for findings)
Balian v. Bd. of Licensure in Medicine, 722 A.2d 364 (when standard of conduct is clear or licensee admits violation, expert proof may be unnecessary)
Lyness v. Pa. State Bd. of Med., 605 A.2d 1204 (commingling advisory/prosecutorial roles can violate due process)
Horne v. Polk, 394 P.3d 651 (separation of functions concerns in administrative discipline)
Mutton Hill Est., Inc. v. Town of Oakland, 468 A.2d 989 (ex parte influence cannot be assessed where off-the-record communications are undisclosed)
Kan. State Network, Inc. v. Fed. Commc’n Comm’n, 720 F.2d 185 (review agency action on what it states as justification, not on internal deliberations)
Widewaters Stillwater Co. v. Bangor Area Citizens Organized for Resp. Dev., 790 A.2d 597 (individual statements in record do not substitute for collective agency findings)