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McDougle v. State ex rel. Bruning

Supreme Court of Nebraska

September 12, 2014

ERIC MCDOUGLE, LMHP, PLADC, APPELLANT,
v.
STATE OF NEBRASKA EX REL. JON BRUNING, ATTORNEY GENERAL, APPELLEE

Page 160

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.

Denise M. Destache, of Lamson, Dugan & Murray, L.L.P., for appellant.

Jon Bruning, Attorney General, and Julie L. Agena for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 161

[289 Neb. 20] McCormack, J.

NATURE OF CASE

Eric McDougle's licenses to practice as a mental health practitioner and as a provisional alcohol and drug counselor were revoked in a decision by the director of the Division of Public Health of the Department of Health and Human Services (Department). McDougle petitioned the district court for review of the decision, naming the Department and the State as parties to the petition for review and timely serving process upon them. The issue in this case is whether the Department was properly a " party of record" under the Administrative Procedure Act, such that the petitioner was not required to

Page 162

separately serve the Department with a copy of the petition and a request for preparation of the official record as a prerequisite to the district court's jurisdiction over the petition for review.

BACKGROUND

McDougle held a mental health license and a provisional alcohol and drug counseling license issued by the Department. The Department is the agency of the State of Nebraska authorized to enforce the provisions of the Uniform Credentialing [289 Neb. 21] Act [1] regulating the practice of mental health and alcohol and drug counseling.

Subsections (2) and (23) of § 38-178 state that a professional licensee may be disciplined for dishonorable conduct evidencing unfitness to meet the standards of practice of the profession or for unprofessional conduct. Unprofessional conduct includes " any departure from or failure to conform to the standards of acceptable and prevailing practice of a profession." [2]

The regulations relating to mental health practitioners provide that " [s]exual intimacy with a former client for 2 years following termination of therapy is prohibited.[3] It is undisputed that McDougle had a sexual relationship with a client approximately 1 month after terminating their professional relationship. McDougle self-reported the incident to the Department. He asserted that at the time of the relationship, he did not know it was in violation of applicable regulations.

The Department conducted an investigation, which was considered by the Board of Mental Health Practice. The board recommended that the State file a petition, pursuant to § 38-186, for disciplinary action seeking revocation of McDougle's licenses.

Under § 38-186(1), " [a] petition shall be filed by the Attorney General in order for the director [of the Department [4]] to discipline a credential obtained under the Uniform Credentialing Act." Under § 38-187 of the Uniform Credentialing Act:

The following rules shall govern the form of the petition in cases brought pursuant to section 38-186:

(1) The state shall be named as plaintiff and the credential holder as defendant;

(2) The charges against the credential holder shall be stated with reasonable definiteness;

[289 Neb. 22] (3) Amendments may be made as in ordinary actions in the district court; and

(4) All allegations shall be deemed denied, but the credential holder may plead thereto if he or she desires.

A petition for disciplinary action accordingly was filed with the Department naming the " STATE OF NEBRASKA ex rel. JON BRUNING, Attorney General," as plaintiff and McDougle as defendant.

A hearing upon the petition was held before the chief medical officer and director of the Department (Director). On May 18, 2012, the Director issued an order revoking McDougle's licenses to practice as a mental health practitioner and provisional alcohol and drug counselor in the State of Nebraska. The Director found clear and convincing evidence that McDougle's conduct was unprofessional and was grounds for discipline. The Director then concluded that revocation was the appropriate

Page 163

disciplinary sanction for such ...


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