Public protection, professional licensee misconduct, and private admonishments: why we opposed HB 465, Section 11
COG2
The Bluegrass Institute Center for Open Government opposes Section 11, Subsection 6 of HB 465, an act “establishing and creating various sections of KRS Chapter 308, relating to Public Protection Cabinet oversight of state occupational boards,” which will authorize professional licensure boards to impose secret disciplinary action consisting of a “private letter of admonishment. . .[that] shall not be subject to KRS 61.870 to 61.884[.]”Kentucky’s highest court analyzed the compelling “public interest in regulation” of professional licensees in a 1992 case, Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., involving the public’s right of access to records relating to allegations of sexual misconduct leveled against a psychologist by his former clients. Emphasizing that “[t]he public's ‘right to know’ under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions,” the Court observed that ” [i]n general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. The fundamental mission of the Board of Examiners of Psychologists is to ensure that citizens who consult a licensed psychologist will receive competent, ethical, professional services. Perhaps secondarily, the Board would likewise serve the public interest by preserving the credentials of a qualified practitioner wrongfully accused of unprofessional conduct.” (Emphasis added.)In this landmark case involving the scope and application of the Open Records Act, the Court declared that “the statute exhibits a general bias favoring disclosure. An agency which would withhold records bears the burden of proving their exempt status.” The analysis in the case applies with equal force to all professional licensure boards.
HB 465, Section 11, Subsection 6 relieves professional licensure boards of their statutory burden of proof with respect to licensee misconduct deemed to warrant private letters of admonishment. If it is enacted, privately admonished licensees, and the licensure boards responsible for “promptly, responsibly, and thoroughly” investigating allegations of misconduct leveled against them and imposing appropriate discipline, will entirely evade public accountability.
The fact that a small number of professional licensure boards—for example, the Board of Veterinary Examiners-- currently enjoy the right to secretly admonish their licensees for misconduct does not justify a wholesale statutorily authorized practice by the 43 licensure boards governed by HB 465.National databases that gather information concerning professional licensee misconduct will have no record of substantiated allegations of misconduct deemed to warrant private letters of admonishment.
Individuals seeking to determine if the professional licensee with whom they wish to do business or from whom they wish to seek service will have no means of ascertaining whether substantiated allegations of misconduct have been made against the licensee if those substantiated allegations of misconduct are deemed to warrant private letters of admonishment.
The Open Records Act adequately addresses the privacy interests that are implicated in matters involving professional licensee discipline.
There is no room for secrecy in matters--sometimes life and death matters--concerning the public’s protection. HB 465, Section 11, Subsection 6 builds a foundation for public protection from professional misconduct on quicksand.