Marina Narowetz v. Board of Dental Practice

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 46
Docket: Ken-20-308
Argued: July 14, 2021
Decided: September 28, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

MARINA NAROWETZ

v.

BOARD OF DENTAL PRACTICE

CONNORS, J.

[¶1] Marina Narowetz appeals from a judgment of the Superior Court

(Kennebec County, Stokes, J.) affirming a decision of the Board of Dental

Practice sanctioning her for unprofessional conduct for her failure to timely

provide patient medical records. See M.R. Civ. P. 80C. Because the Board issued

factual findings that were insufficient to permit judicial review, we must

remand the matter to the Board; and because the same assistant attorney

general who advised the Board acted in an advocate capacity contrary to

5 M.R.S. § 9055 (2021), we remand for the Board to conduct a new evidentiary

hearing.
2

I. BACKGROUND1

[¶2] Narowetz is a licensed dentist in Maine and has owned a dental

practice in Old Orchard Beach since 2011. On September 17, 2018, she

provided a free dental consultation for a patient.

A. The Record Request

[¶3] On September 25, 2018, attorney Neil Weinstein, who represented

the patient, sent a request to Narowetz by mail for the patient’s dental records.

The record request was returned by mail and received by Weinstein’s office on

October 10, 2018. On that same day, Weinstein hand-delivered the envelope

containing the request to Narowetz’s office. The envelope was again refused

and was mailed back to Weinstein’s office.

[¶4] Weinstein then filed a complaint with the Board on

October 23, 2018, alleging that Narowetz had refused a request for patient

Because, as discussed infra, the Board did not make sufficient factual findings, we draw the
1

factual background from the undisputed facts and the procedural record. See D’Alessandro v. Town
of Harpswell, 2012 ME 89, ¶¶ 2, 8, 48 A.3d 786; Fair Elections Portland, Inc. v. City of Portland,
2021 ME 32, ¶ 11, 252 A.3d 504.
3

records in violation of 32 M.R.S. § 18325(1)(E) (2021)2 and the Board rule

regarding record production.3

B. The Board’s Review of the Complaint

[¶5] The record reflects that the Board held a public meeting at which

Assistant Attorneys General Andrew Black and Adria LaRose were present and

for which Narowetz had received notice. At the meeting, the Board considered

whether to dismiss the complaint, offer a consent agreement, or set the matter

for a hearing.4 A Board member made an initial presentation of the complaint

against Narowetz to the rest of the Board.5 The Board flagged Narowetz’s case

2 Title 32 M.R.S. § 18325(1)(E) (2021) provides: “Unprofessional conduct. A licensee is
considered to have engaged in unprofessional conduct if the licensee violates a standard of
professional behavior that has been established in the practice for which the licensee is licensed or
authorized by the board[.]”
3 The Board rule provided:

The failure of a dentist to surrender a copy of a patient’s records upon appropriate
request by the patient or the patient’s agent and payment of a reasonable duplication
cost. This rule does not require a dentist to surrender original patient records. The
records should be released within five business days of receipt of the request and
shall be released within 21 calendar days of receipt of the request. Dentists shall
maintain patient treatment records for a minimum of seven (7) years after the date
on which the last dental services were provided to the patient.

02-313 C.M.R. ch. 9, § II(K) (effective June 27, 2010) (currently located at 02-313 C.M.R. ch. 12,
§ I(G)(3)(a) (effective Apr. 5, 2020); the substance of the rule has not materially changed).

No rule promulgated by the Board of Dental Practice pursuant to the Administrative Procedure
4

Act, 5 M.R.S. §§ 8001-11008 (2021), specifies the Board’s process for reviewing complaints.

That Board member recused himself from participating in Narowetz’s subsequent hearing and
5

did not take part in the Board’s final decision.
4

for follow up with the Office of the Attorney General. Black was acting in an

advisory capacity to the Board at this time.

[¶6] At that meeting, the Board voted to offer Narowetz a consent

agreement “in order to resolve the complaint.” The draft consent agreement

sent to Narowetz included a space for LaRose to sign on behalf of the Attorney

General’s Office. The proposed consent agreement included sixteen findings of

fact; stated that Narowetz admitted to the violation; and included as discipline

a warning, a civil penalty of $1,500, and the requirement that Narowetz

complete three hours of continuing education pertaining to ethics in the dental

profession.

[¶7] Narowetz rejected the consent agreement and requested that the

Board reconsider its disposition of the complaint. The Board, at Narowetz’s

request, reviewed Narowetz’s case again in a meeting on March 15, 2019, with

Black and LaRose in attendance and Black advising the Board. The Board

arrived at the same result. Another consent agreement was then offered, this

time with Black listed as a signatory on behalf of the Office of the Attorney

General.6

6This Board meeting was held in open session but with no opportunity for Narowetz’s counsel to
participate.
5

[¶8] Narowetz again rejected the consent agreement, and the matter was

scheduled for an evidentiary hearing before the Board. In the notice of hearing,

the Board informed Narowetz that it had “contracted with a Hearing Officer

who [would] advise the Board at the hearing and rule on procedural issues

prior to hearing.” The notice also stated:

Pursuant to 5 M.R.S. § 9054(5), Board staff with the assistance of
an assistant attorney general will facilitate the presentation of this
matter to the Board by offering relevant evidence, examining
witnesses, filing appropriate motions, and responding to motions
and objections of the applicant.

[¶9] Immediately after receiving the notice of hearing, Narowetz filed a

motion arguing that the Board could find that she had engaged in

unprofessional conduct only if it made that finding by clear and convincing

evidence. Black submitted an opposition to the motion on behalf of “the

[p]rosecution,” arguing that only a finding by a preponderance of the evidence

was required. The hearing officer ruled on this motion after a pre-hearing

conference and explained that he would “instruct the Board to apply the

standard of ‘proof by a preponderance of the evidence.’”

[¶10] The Board held its evidentiary hearing on June 14, 2019. At the

start of that hearing, the hearing officer confirmed that he was “authorized to

administer oath[s] and affirmations[,] to rule on any non-dispositive motions
6

[and] any objections to admissibility of evidence, . . . to regulate the course of

the hearing[,] and to address any procedural matters that might arise . . . [and]

serve as . . . the Board’s legal advisor during the proceedings.” Placing his

previous ruling on the record, the hearing officer stated, “The State is not

technically a party to the matter, but having assumed the role of a moving party

on behalf of Board staff, the burden of proof at hearing is upon the State in the

person of the Assistant Attorney General.” The presiding officer thereafter

referred to Black and the prosecution as “the State.”

[¶11] At the start of the hearing, the Board ruled on a motion to dismiss

previously filed by Narowetz, challenging the overlapping roles undertaken by

the assistant attorneys general as violations of her right to due process and of

sections of the Maine Administrative Procedure Act, including 5 M.R.S. § 9055.

The Board denied the motion.

[¶12] During the evidentiary hearing, Black, with the assistance of a third

assistant attorney general, presented the case that Narowetz had engaged in

unprofessional conduct. Black submitted evidence, conducted direct and

cross-examination, and made opening and closing arguments.7 Narowetz was

7In the Board’s subsequent written decision, it stated that the “Assistant Attorneys General
undertook to present evidence on behalf of the Board’s Staff, volunteering as the moving party to
7

represented by her own counsel, who presented evidence through direct and

cross-examination in her defense and also made opening and closing

arguments.

C. The Board’s Decision and Subsequent Petition for Review

[¶13] In its written decision, the Board found that Narowetz had engaged

in unprofessional conduct as defined by Board rule, thereby violating 32 M.R.S.

§ 18325(1)(E). The Board imposed the following sanction:

A REPRIMAND; completion of continuing education courses of
three (3) hours in ethics, and three (3) hours in record keeping, to
be pre-approved by the Board’s Complaint Officer and to be
completed within ninety (90) days of the date of this decision and
order, and not to be applied toward the biennial continuing
education requirement; a civil penalty of $1,500, plus the cost of
hearing not to exceed $3,000, both to be paid within ninety (90)
days of the date of this decision and order; and a period of
probation of five (5) years with the condition that the Licensee
refrain from violation of the Dental Practice Act.

[¶14] Narowetz filed in the Superior Court a petition for judicial review

of final agency action pursuant to Rule 80C, along with three independent

claims, seeking a declaratory judgment, injunctive relief, and a stay of the

sanctions against her. She subsequently filed a motion to take additional

evidence to demonstrate bias on the part of three individual board members,

shoulder the burden of proof by a preponderance concerning the basis for imposing discipline alleged
in the Notice of Hearing, and the hearing officer instructed the Board accordingly.”
8

as well as additional evidence regarding “procedural irregularities,” including

“Assistant Attorney General Black acting as the investigator, counsel to the

Board, and prosecutor in [the] case.”

[¶15] In a written order disposing of all pending motions, the court

granted the Board’s motion to dismiss Narowetz’s independent claims, denied

Narowetz’s motion to stay sanctions, and denied her motion to take additional

evidence. In a judgment entered on November 12, 2020, the court upheld the

Board’s decision. Narowetz timely appealed. See 5 M.R.S. § 11008 (2021);

M.R. App. P. 2B(c).

II. DISCUSSION

A. The Board’s Factual Findings

[¶16] “When the Superior Court acts in an intermediate appellate

capacity pursuant to M.R. Civ. P. 80C, we review the administrative agency’s

decision directly for errors of law, abuse of discretion, or findings not

supported by substantial evidence in the record.” Doane v. Dep’t of Health

& Hum. Servs., 2021 ME 28, ¶ 15, 250 A.3d 1101 (quotation marks omitted).

[¶17] “[I]t is an indispensable prerequisite to effective judicial review

that an agency’s decision set forth the findings of basic fact as well as the

conclusions of ultimate fact and conclusions of law derived therefrom.” Gashgai
9

v. Bd. of Registration in Med., 390 A.2d 1080, 1085 (Me. 1978). “Recitation of

the parties’ positions or reiterations of the evidence presented by the parties

do not constitute findings and are not a substitute for findings.” Fair Elections

Portland, Inc. v. City of Portland, 2021 ME 32, ¶ 37, 252 A.3d 504 (quoting

Christian Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 7,

769 A.2d 834).

[¶18] We have held that “[w]here express findings of fact are necessary

these findings must at least state the ultimate facts which are essential to an

administrative determination, and without such a finding the finding of the

basic or evidentiary facts may be deemed insufficient.” Cumberland Farms

N., Inc. v. Me. Milk Comm’n, 234 A.2d 818, 820 (Me. 1967) (quotation marks

omitted). The ultimate facts alone, however, are not enough; “[a] mere finding

of ultimate facts, a finding solely in terms of the statute, or the statement of a

conclusion, without a finding of the basic or underlying facts on which the

administrative agency deems such ultimate fact or conclusion to rest, is, as a

general proposition, regarded as insufficient to support a determination.” Id.

(quotation marks omitted).

[¶19] In its written decision, the Board’s factual discussion begins with

the caption “Review of Facts,” followed by subsections with captions such as:
10

“Licensee’s Original Testimony,” “Bissonnette Testimony,” and “Licensee’s

Corrected Testimony.” The Board never makes clear in its decision which parts

of this testimony it credited and which it did not.

[¶20] By merely summarizing the testimony, the Board did not make

factual findings. The Board’s decision and review of the facts allows for

multiple interpretations of events, including whether, and to what extent,

Narowetz attempted to deceive the Board. For example, the Board did not

make a finding as to whether Narowetz knew that she received a record request

containing a patient release and decided to ignore it, or whether she genuinely

believed that the mail was related to a separate litigation matter. Although

either explanation of her behavior might constitute a violation of the Board

rule, one explanation of Narowetz’s behavior may merit a more serious

sanction than the other.8

[¶21] This omission in the Board’s written decision is exacerbated by a

lack of explanation as to why the Board imposed the sanction that it did—a

The Board’s deliberations suggest that the sanction imposed was based in part on a finding that
8

Narowetz acted dishonestly and deliberately misled the Board during the hearing. But “an agency’s
action should be reviewed based upon what it accomplishes and the agency’s stated justifications,”
not a review of the agency’s deliberations. Kan. State Network, Inc. v. Fed. Commc’n Comm’n,
720 F.2d 185, 191 (D.C. Cir. 1983); see also Widewaters Stillwater Co. v. Bangor Area Citizens
Organized for Resp. Dev., 2002 ME 27, ¶¶ 9-12, 790 A.2d 597 (rejecting the proposition that
statements in the record made by individual board members reflecting their individual opinions as
to why they were voting as they did were sufficient findings of fact because those statements did not
represent the collective judgment of the agency).
11

sanction substantially more severe than those contained in the proposed

consent agreements. While one might speculate that the sanction was based on

a factual conclusion that Narowetz had engaged in a cover-up of her failure to

timely produce the records, continuing through her testimony at the hearing,

the decision simply states, “At [the] hearing, Dr. Narowetz was not fully truthful

in her initial sworn testimony about when she received the request for records,

and about her involvement in the preparation of witness statements, but

returned to the witness chair to correct it.”

[¶22] Because the Board did not make sufficient factual findings, we are

unable to properly review its decision, requiring us to remand the matter for

the Board to articulate its findings and the basis for the sanction it imposed. See

Christian Fellowship & Renewal Ctr., 2001 ME 16, ¶ 19, 769 A.2d 834. Narowetz,

however, raises additional claims that, if meritorious, would also require a new

evidentiary hearing. Five of these claims we may dispose of summarily.9 Her

remaining argument, however, has merit.

9 First, Narowetz argues that the hearing officer lacked the authority to provide legal advice to
the Board. But she did not preserve this argument by raising the issue before the Board. See Antler’s
Inn & Rest., LLC v. Dep’t of Pub. Safety, 2012 ME 143, ¶ 9, 60 A.3d 1248.

Second, Narowetz contends that the Board erred in considering her dishonesty, arguing that this
violated her right to due process because such consideration required a separate charge in order to
provide her with adequate notice that the dishonesty might be considered by the Board in this
proceeding, rather than in a new complaint. Given the insufficiency of the factual findings, we do not
know the extent to which the Board found her to be dishonest; however, the record reflects that any
dishonesty that the Board considered was in the context of identifying an appropriate sanction, not
12

B. Commingling of Roles

[¶23] Narowetz argues that the Board violated her procedural due

process rights and 5 M.R.S. § 9055 by commingling the roles of investigator,

prosecutor, and adjudicator. Because we find that Black’s participation as

investigator, prosecutor, and advisor to the Board violated section 9055, we

need not address the constitutional argument. See Your Home, Inc. v. City of

Portland, 432 A.2d 1250, 1257 (Me. 1981) (“[W]e avoid expressing opinions on

as a separate act of professional misconduct. If the Board did find that Narowetz was dishonest, it
was free to take this into account when setting appropriate discipline. The extent to which a licensee
attempts to cover up or mislead regarding an act of unprofessional conduct reflects upon the gravity
of that conduct, and thus the appropriate sanction for the same. Narowetz was notified, prior to the
hearing, of the sanctions that could be imposed based on the charged misconduct, which extended to
the loss of her license and other sanctions more severe than those the Board chose to impose.

Third, citing Balian v. Board of Licensure in Medicine, 1999 ME 8, 722 A.2d 364, Narowetz argues
that the Board was required to present expert witness testimony of the professional standard she
was found to have violated. In Balian, however, no Board rule specified that failure to provide records
constituted unprofessional conduct and the Board did not introduce evidence—expert witness
testimony or otherwise—to establish the standard of professional conduct. Id. ¶¶ 4-5, 12-15. Here,
the applicable rule, see supra n.3, makes the standard clear. Moreover, the Board was not required
to offer evidence establishing that a licensee has a duty to open mail containing a request for patient
records or that a licensee is expected to testify honestly before the Board. See Balian, 1999 ME 8,
¶ 16, 722 A.2d 364 (“[W]here an act is blatantly illegal or improper, or where the licensee admits to
a violation, the Board need not introduce record evidence to establish the necessary standard.”).

Fourth, Narowetz argues that the Board erred in denying her motion to take additional evidence.
The aspect of her motion seeking investigation into the assistant attorneys general’s multiple roles is
rendered moot by our ruling; the aspect of her motion asserting Board bias was not preserved
because she failed to raise it before the Board, and none of the bases she cited for requesting to take
the additional evidence was unknown to her at the time of the hearing. She also filed no offer of proof
with her motion, as required by M.R. Civ. P. 80C(e).

Finally, the independent claims were properly dismissed as duplicative. See Cape Shore House
Owners Ass’n v. Town of Cape Elizabeth, 2019 ME 86, ¶ 7, 209 A.3d 102.
13

constitutional law whenever a non-constitutional resolution of the issues

renders a constitutional ruling unnecessary.”).

1. Plain Language

[¶24] “We interpret every statute de novo as a matter of law to give effect

to the intent of the Legislature, first by examining its plain language.” Reed v.

Sec’y of State, 2020 ME 57, ¶ 14, 232 A.3d 202 (quotation marks omitted).

Section 9055 provides as follows:

§ 9055. Ex parte communications; separation of functions

1. Communication prohibited. In any adjudicatory proceeding,
no agency members authorized to take final action or presiding
officers designated by the agency to make findings of fact and
conclusions of law may communicate directly or indirectly in
connection with any issue of fact, law or procedure, with any party
or other persons legally interested in the outcome of the
proceeding, except upon notice and opportunity for all parties to
participate.

2. Communication permitted. This section shall not prohibit any
agency member or other presiding officer described in
subsection 1 from:

A. Communicating in any respect with other members of the
agency or other presiding officers; or

B. Having the aid or advice of those members of his own agency
staff, counsel or consultants retained by the agency who have
not participated and will not participate in the adjudicatory
proceeding in an advocate capacity.

(Emphasis added.)
14

[¶25] The plain language of this section of the Maine Administrative

Procedure Act mandates that, in any case to be decided by a board, board

members shall not be advised by the same legal counsel who will subsequently

act in an advocate capacity in the same matter. If an assistant attorney general

gives advice to a board relating to the merits of a complaint, he or she should

not then prosecute the charge based on that complaint before the board.

2. Legislative History and Purpose

[¶26] Although the plain language of this section is not complex, we

understand from oral argument that the current practice of assistant attorneys

general staffing Maine’s boards and agencies may differ from what the statute

requires. “Although it is unnecessary to look at the legislative history because

the plain language elucidates the Legislature’s intent, we note that the history

supports the intent stated in the plain language.” Stockly v. Doil, 2005 ME 47,

¶ 12, 870 A.2d 1208.

a. Legislative History

[¶27] The Legislature stated that section 9055 was “considered to be

among the most vital in the proposed [Administrative Procedure Act], both

because off the record communications between decision-makers and

advocates are so likely to be prejudicial to those parties not present, and
15

because many of Maine’s administrative agencies are so small that the problem

occurs frequently.” L.D. 1768, cmt., § 9055 (108th Legis. 1977).

[¶28] Before the Maine Administrative Procedure Act was passed into

law, a 1974 draft version of the bill included the following language: “this

section shall not prohibit any agency member or other presiding officer

described in the first sentence of this section from . . . having the aid and advice

of agency staff, counsel for the agency, or the Department of the Attorney

General.” L.D. 1768, Draft Administrative Procedure Act, § 2504(2)(B)

(Dec. 5, 1974). This proposed language was not adopted, however, and in its

place the current version, which allows the agency to seek only the aid of

outside counsel “who have not participated and will not participate in the

adjudicatory proceeding in an advocate capacity,” was enacted. 5 M.R.S.

§ 9055(2)(B) (emphasis added). This change to the proposed legislation shows

that the Legislature considered and rejected the proposition that the same

assistant attorneys general could advise members of an agency and later

advocate a position before that agency.10

10 Because the Maine APA “roughly mirrors” the federal APA, the federal Act can offer “useful
guidance.” Me. Sch. Admin. Dist. No. 27 v. Me. Pub. Emps. Ret. Sys., 2009 ME 108, ¶ 13, 983 A.2d 391.
The federal APA precludes employees or agents engaged in the performance of investigative or
prosecuting functions for an agency in a case from participating or advising in the decision,
recommended decision, or agency review, with certain exceptions. 5 U.S.C.S. § 554(d)(2) (LEXIS
through Pub. L. 117-36, approved Aug. 6, 2021, excepting part V of Subtitle A of Tit. 10, as added by
16

b. Purpose

[¶29] An important goal of an administrative procedure act is not only

to provide a fair mechanism for regulatory conduct but to instill public

confidence in the same. See Wong Yang Sung v. McGrath, 339 U.S. 33, 42 (1950)

(referring to the legislative history of the federal APA, which noted that a lack

of separation of function between prosecutor and judge “not only undermines

judicial fairness; it weakens public confidence in that fairness” (quotation

marks omitted)); Amos Treat & Co. v. Sec. Exch. Comm’n, 306 F.2d 260, 267

(D.C. Cir. 1962) (stating that an administrative hearing must be attended “not

only with every element of fairness but with the very appearance of complete

fairness”); Nightlife Partners, Ltd. v. City of Beverly Hills, 133 Cal. Rptr. 2d 234,

243 (Cal. Ct. App. 2003) (“One of the basic tenets of the [California] APA, as well

as the Model State Administrative Procedure Act, various state administrative

procedure acts, and the federal Administrative Procedure Act is that, to

promote both the appearance of fairness and the absence of even a probability

of outside influence on administrative hearings, the prosecutory and, to a lesser

Pub. L. 116-283 (effective 1/1/2022)). The Model State Administrative Procedure Act similarly
requires a separation of functions. See Model State Admin. Proc. Act § 4-214(a), 15 U.L.A. 94 (2000).
17

extent, investigatory, aspects of administrative matters must be adequately

separated from the adjudicatory function.” (emphasis in original)).

[¶30] A licensee coming before a board to face potentially severe

discipline might question the legitimacy of an adjudicatory proceeding where

the lawyer presenting the prosecution’s case is the same lawyer who acted in

an advisory capacity to the board in the same matter. Without impugning the

integrity of any member of the Office of the Attorney General, who we have no

reason to suspect was not performing in accordance with the highest ethical

standards, this multiplicity of roles can undermine the confidence of the parties

and the public in the regulatory process.

[¶31] Lack of transparency increases concerns about appearance. The

licensee in a disciplinary hearing can only speculate as to the scope and content

of prior communications, direct or indirect, that might have taken place

between the board and an assistant attorney general acting in an advisory

capacity and the effect such communications might have when that same

assistant attorney general appears at the evidentiary hearing in the role of

advocate against the licensee’s position.11 See Mutton Hill Est., Inc. v. Town of

11 It is unclear from the record whether Black in fact engaged in any direct or indirect
communications with the Board outside public hearings prior to the evidentiary hearing where he
appeared in an advocate capacity. The Board has no rule setting forth its procedures. The record
contains various emails to and from Black with contents redacted. The record cannot capture oral
18

Oakland, 468 A.2d 989, 992 (Me. 1983) (holding that the Superior Court

correctly vacated a board’s order when a board carried out an ex parte session

with opponents to an application because the influence of the opponents in the

ex parte session on the board’s fact finding could not be determined from the

record).

[¶32] While we take no position as to whether a commingling of the

advisory function with the investigatory and prosecutorial functions can rise to

the level of a constitutional violation, at least a few other jurisdictions have so

concluded. See Lyness v. Pa. State Bd. of Med., 605 A.2d 1204, 1210 (Pa. 1992);

Horne v. Polk, 394 P.3d 651, 659 (Ariz. 2017). We construe statutes to avoid

constitutional concerns when possible, see State v. Davenport, 326 A.2d 1, 5-6

(Me. 1974), and we presume that the Legislature similarly seeks to avoid

constitutional problems when enacting statutes. See Bernier v. Raymark

Indus., Inc., 516 A.2d 534, 549 (Me. 1986) (McKusick, C.J., dissenting) (“[B]y an

established canon of statutory construction, legislators are presumed to avoid

constitutional problems.”).

communications, and Narowetz’s attempt to probe the issue by calling Black and other Board staff as
witnesses at the evidentiary hearing was rejected. But regardless of whether any ex parte
communications in fact occurred, our inability to confirm that no ex parte communication directly or
indirectly influenced the Board’s adjudication underscores the prudence of the separation of
functions mandated by section 9055.
19

[¶33] In sum, given the language, purpose, and history of section 9055,

along with constitutional considerations, we conclude that the intent of the

Legislature in enacting the statute was, consistent with legislatures enacting

administrative procedure acts elsewhere, to segregate the advisory function

from the investigatory and advocacy functions in adjudicatory matters before

state agencies.12

12 Ordinarily, if legislative intent is not clear based on a statute’s language, purpose, and legislative
history, we defer to a reasonable construction of a statute offered by the agency administering the
statute. See SAD 3 Educ. Ass’n v. RSU 3 Bd. of Dirs., 2018 ME 29, ¶ 14, 180 A.3d 125. As noted, given
the language, purpose, and history of section 9055, we find that the Legislature intended to separate
the functions of those giving legal advice to an agency and those advocating before the agency. Even
if there were some ambiguity, however, the Board (represented by Black) did not respond to
Narowetz’s section 9055 argument in its brief before us. Hence, there is no clearly articulated agency
position to which we could defer. See Verizon v. Fed. Commc’n Comm’n, 740 F.3d 623, 658-59
(D.C. Cir. 2014) (rejecting deference to a position asserted by an agency for the first time at oral
argument).

At oral argument, Black stated that because he was representing Board staff’s position at the
evidentiary hearing, and Board staff do not fall within the definition of a party contained in 5 M.R.S.
§ 8002(7) (2021), section 9055 does not apply. The Board and the hearing officer, however,
considered Black to be representing a “party.” Further, section 9055(2) does not limit separation of
functions based on technical party status but instead segregates the function of those acting in an
“advocate capacity” from those providing advice.

In addressing Narowetz’s constitutional argument, the Board asserted in its brief that the issuance
of the consent agreement did not involve fact finding by the Board; the role of the assistant attorneys
general was simply to advise the Board as to the universe of options from which the Board could
choose; and because Black never advocated discipline, his role was not that of a prosecutor. But while
the Model State Administrative Procedure Act provides that “[a] person who has participated in a
determination of probable cause or other equivalent preliminary determination in an adjudicative
proceeding may . . . assist or advise a presiding officer in the same proceeding, unless a party
demonstrates grounds for disqualification,” Model State Admin. Proc. Act § 4-214(c), 15 U.L.A. 94
(2000), section 9055 contains no such provision. See 5 M.R.S. § 9055 (2021). The offer of the consent
agreement, moreover, even if it could not be characterized as a preliminary determination, included
fact finding and involved a degree of judgment by the Board as to the terms and discipline it would
impose. This raises the same concerns regarding separation of function as with ultimate decision
making. The Board, with Black providing advice to it, made a collective decision that the complaint
should not be dismissed for lack of merit, that the factual underpinnings of the complaint had validity,
that the facts as found in the agreement constituted unprofessional conduct, and that the sanction for
20

3. The Scope of Section 9055’s Restrictions

[¶34] The separation of the advocacy function mandated by section 9055

does not preclude the entire Office of the Attorney General from having

individual assistant attorneys general perform different roles. See

Superintendent of Ins. v. Att’y Gen., 558 A.2d 1197, 1201-02 (Me. 1989)

(assistant attorneys general are not subject to the same conflict-of-interest

rules as other attorneys); see also Mallinckrodt LLC v. Littell, 616 F. Supp. 2d

128, 143 (D. Me. 2009) (noting that the Attorney General has sufficient

personnel to maintain a firewall and avoid the appearance of bias). In this

instance, for example, three assistant attorneys general participated in the case

and could have divided up the separate functions among them in a manner that

would have avoided the overlap of the advisory function with the investigatory

and prosecuting functions.

that misconduct was appropriate. The consent agreement required Narowetz to admit that her
conduct gave rise to grounds for imposing discipline against her for engaging in unprofessional
conduct, and, if accepted, the agreement would have constituted a final and unappealable decision.

Finally, to the extent that the Board argues that Black never acted in an advocate capacity, this
argument ignores reality. Black signed an opposition on behalf of “the prosecution” and vigorously
challenged Narowetz’s position that she should not be disciplined. The hearing officer perceived
Black as arguing the “State’s” position. By any practical understanding of the concept, Black acted in
an advocacy capacity in support of a finding of misconduct and imposition of discipline.
21

The entry is:

Judgment vacated. Remanded to the Superior
Court with instructions to remand to the Board
of Dental Practice for further proceedings
consistent with this opinion.

Janna L. Gau, Esq. (orally), Eaton Peabody, Bangor, for appellant Marina
Narowetz

Aaron M. Frey, Attorney General, and Andrew L. Black, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Board of Dental Practice

Kennebec County Superior Court docket number AP-2019-43
FOR CLERK REFERENCE ONLY