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HEADNOTES: Maryland State Board of Pharmacy v. Linda Ann Spencer NO. 01561 September Term 2001 FAIR AND IMPARTIAL ADMINISTRATIVE TRIBUNAL; Administrative proceedings shall be conducted by a fair and impartial tribunal. Members of the tribunal must conduct themselves in such a fashion to avoid even the appearance of any impropriety during the course of the whole proceeding. RECUSAL DURING ADMINISTRATIVE PROCEEDING; Where the facts and circumstances alleged supported a motion for recusal, members of the administrative tribunal should have either recused themselves, or referred the matter to the OAH for further proceedings on the merits. POWER OF THE MARYLAND BOARD OF PHARMACY TO DISCIPLINE PHARMACISTS; The Maryland Board of Pharmacy does not waive its right, as a matter of law, to discipline licensed pharmacists for violations of the Pharmacy Act by renewing the license of a pharmacist, pending the investigation of that pharmacist for possible wrongdoing.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 01561 September Term, 2001

MARYLAND STATE BOARD OF PHARMACY v. LINDA ANN SPENCER

Salmon, Greene, Wenner, William W. (Retired, Specially Assigned) JJ. Opinion by Greene, J.

Filed: March 18, 2003

Maryland State Board of Pharmacy (Board), appellant, seeks review of the August 31, 2001 Order of the Circuit Court for Baltimore City reversing appellant's earlier decision that

Pharmacist Linda Ann Spencer, appellee, practiced pharmacy without a license and failed to keep records of required continuing

education credits. Appellant raises the following questions for our review: I. Is there substantial evidence in the record to support appellant's decision to discipline Ms. Spencer for practicing pharmacy after her license had expired and for failing to retain documentation of continuing education credits required for license renewal? By renewing appellee's license prior to completing its investigatory and disciplinary process regarding her alleged violations of the Pharmacy Act occurring prior to renewal, did the Board waive its right to discipline her for those violations?

II.

III. In the absence of any showing of actual bias by appellant's members against appellee, did arguments at the hearing between her attorney and two of appellant's members regarding the attorney's statements during the hearing deprive her of due process.1 We hold that appellant did not waive its right, as a matter of law, to discipline appellee for violations of the Pharmacy Act by renewing her license during the pendency of its investigation of possible wrongdoing. We also hold that appellant deprived appellee of her right to be treated in a fair and unbiased manner as required by the Administrative Procedure Act and the Maryland

Appellee raises six questions, essentially rephrasing appellant's questions and raising additional due process concerns. We will address these concerns in our discussion of appellant's third question.

1

Constitution; and, therefore, the case must be remanded in order that appellee may receive a fair hearing of the disputed charges against her. Finally, in light of our answer to the last question,

we refrain from addressing whether the record contains substantial evidence to support appellant's decision to discipline appellee. FACTS AND PROCEEDINGS On July 1, 1999, appellee's pharmacist license expired. She

continued to practice pharmacy without a license until August 16, 1999. On August 30, 1999, appellee submitted a renewal application to appellant, along with documentation that she had completed the continuing education requirements. On September 14, 1999,

appellant issued a renewal license to appellee. Appellant issued charges against appellee on February 16, 2000, alleging that she had practiced pharmacy without a license for a period of six weeks and that she had failed to maintain records of required continuing education credits. Appellant

scheduled a case resolution conference (CRC) to attempt to resolve the matter without the necessity of a hearing. Mr. Stanton Ades

and Ms. Laura Schneider, two members of the Board, represented appellant at the CRC. The settlement negotiations were

unsuccessful.

Both Mr. Ades and Ms. Schneider sat on the panel of On many

Board members who eventually heard this contested case.

occasions, beginning in July, 2000, appellee sent letters to counsel for appellant, seeking to have the matter referred to the Office of Administrative Hearings (OAH). Appellee believed

appellant incapable of giving her a fair and impartial hearing because appellant with had been intimately and may involved in settlement the case.

negotiations

appellee

have

prejudged

Appellant repeatedly denied appellee's requests to move the case to OAH, stating that appellant's knowledge of settlement negotiations did not disqualify it from hearing evidence. In further

justification for refusing to move the case, appellant stated that appellee "failed to assign any specific facts indicating the Board would not be an impartial arbiter," and also noted that the Board "ha[d] never delegated a matter to the Office of Administrative Hearings." Finally, on August 14, 2000, appellee filed a motion to refer the case to the Office of Administrative Hearings or, in the alternative, to recuse members of the Board. Appellant denied that motion on September 15, 2000. Appellant held a hearing on the matter on September 20, 2000, and resumed the hearing on January 8, 2001. Counsel for appellant

had given books containing exhibits to the members of the Board on the morning of the hearing. When counsel for appellee arrived for

the hearing, he noticed that at least one member of the Board was reviewing evidence before the start of the hearing. Counsel for

appellee complained about the member reviewing documents that were not in evidence, and asked that member to recuse himself. request was denied. This

He then renewed the motion to move the case to Finally, counsel for

OAH and appellant denied that motion also.

appellee asked that the two members who were involved in settlement negotiations recuse themselves, and that request was also denied. Appellee did not dispute that she had practiced pharmacy without a license for a period of six weeks. Her counsel argued,

however, that her practice of pharmacy without a license was authorized under Md. Code (1984, 1999 Repl. Vol.),

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