Forman v. South Carolina Department of Labor, Licensing & Regulation
Forman v. South Carolina Department of Labor, Licensing & Regulation
Opinion of the Court
Karen Forman appeals the decision of the Administrative Law Court (ALC) affirming the order of the South Carolina Department of Labor, Licensing and Regulation, State Board of Social Work Examiners (Board) prohibiting her from working as a Guardian ad Litem (GAL) and barring her from all independent social work practice. We affirm.
FACTS/PROCEDURAL HISTORY
Forman has a master’s degree in social work and became a Licensed Master Social Worker (LMSW) in the early 1990s. At the time of the Board’s action, she also had become a Licensed Independent Social Worker-Clinical Practice (LISW-CP). She primarily worked as a GAL and has served on over 150 cases. On August 19, 2009, the Board served Forman with a Notice of Charges (Notice) alleging she had engaged in misconduct in violation of the Social Work Examiners Practice Act.
In responding to the Notice, Forman asserted that in Case I, she followed the GAL statute and had done nothing wrong. For Case II, she stated she believed the mother was mentally unstable and “was angry at me because she has no one left to target her anger toward.” Forman filed a motion to dismiss contending she was not providing social work services and only the family court has authority over actions taken as a GAL.
After a hearing, the Board determined Forman had committed fraud in violation of South Carolina Code Regulation 110— 20(8) (2012) by representing she had performed services she had not performed. It also found Forman had represented herself as a LMSW without disclosing she had been placed in a probationary status.
Forman appealed to the ALC. In its final order, the ALC rejected Forman’s arguments she was entitled to quasi-judicial immunity and the Board lacked authority to discipline her for her work as a GAL. The ALC found substantial evidence supported the Board’s decision she had violated section 40-63-110(B)(9) of the South Carolina Code (2011) and Regulation 110-20(8) by representing to the Board that she had performed services in the two family court cases that she did not perform. It reversed the Board’s finding Forman was required to disclose her prior discipline in her GAL affidavit. Because it found the Board’s order was unclear whether this finding
On remand, the Board found Forman’s failure to disclose the previous disciplinary action “played little, if any, role in its decision for the sanctions imposed.” Accordingly, it imposed the same sanctions as in the original order. The ALC affirmed this order. This appeal followed.
ISSUES
I. Does quasi-judicial immunity apply to professional disciplinary proceedings?
II. Are the Board’s findings of fact supported by substantial evidence?
III. Does the Board have subject matter jurisdiction to discipline Forman for her actions as a GAL and to prohibit her from serving as a GAL?
STANDARD OF REVIEW
Judicial review of agency decisions is governed by section 1-23-380 of the Administrative Procedures Act (APA) (Supp. 2015). Osman v. S.C. Dep’t of Labor, Licensing & Regulation, 382 S.C. 244, 248, 676 S.E.2d 672, 675 (2009). Pursuant to the APA:
The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
*70 (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-28-380(5) (Supp. 2015).
“ ‘Substantial evidence is relevant evidence that, considering the record as a whole, a reasonable mind would accept to support an administrative agency’s action.’ ” Trimmier v. S.C. Dep’t of Labor, Licensing & Regulation, 405 S.C. 239, 246, 746 S.E.2d 491, 494 (Ct. App. 2013) (quoting Porter v. S.C. Pub. Serv. Comm’n, 333 S.C. 12, 20, 507 S.E.2d 328, 332 (1998)). “Furthermore, the possibility of drawing two inconsistent conclusions from the evidence does not prevent a court from concluding that substantial evidence supports an administrative agency’s finding.” Id. (quoting Porter, at 21, 507 S.E.2d at 332).
LAW/ANALYSIS
I. Judicial Immunity
Forman argues quasi-judicial immunity afforded to GALs applies to professional disciplinary proceedings. She relies on Fleming v. Asbill, 326 S.C. 49, 55, 483 S.E.2d 751, 754-55 (1997), in which the supreme court ruled GALs in private custody actions should be entitled to immunity from tort actions.
In Fleming, the court held,
[ Pjrivate persons appointed as guardians ad litem in private custody proceedings are afforded immunity for acts performed within the scope of their appointment. Because one of the guardian’s roles is to act as a representative of the court, and because this role can only be fulfilled if the guardian is not exposed to a constant threat of lawsuits from disgruntled parties, a finding of quasi-judicial immunity is necessary. Such a grant of immunity is crucial in order for guardians to properly discharge their duties. The immunity to which guardians ad litem are entitled is an absolute quasi-judicial immunity.
Id. at 57, 483 S.E.2d at 755-56.
Forman argues immunity from disciplinary proceedings is necessary to protect GALs from disgruntled parties. However, the Board, not a disgruntled party, brought this action after
[A] disciplinary proceeding is not a civil suit against the expert, and the policies that underscore witness immunity do not apply. Disciplinary actions are different in character to civil actions. ... When we acknowledge these differences, it follows that a rule providing immunity from civil liability does not necessarily provide protection from professional discipline. Just as a rule promulgated for professional discipline is inappropriate as a legal doctrine, a legal doctrine promulgated to achieve the full disclosure of facts may not provide immunity from a professional disciplinary proceeding.
Deatherage v. State of Wash., Examining Bd. of Psychology, 134 Wash.2d 181, 948 P.2d 828, 831-32 (1997). The court further explained,
Permitting a professional to be subjected to discipline for unprofessional conduct ,.. furthers the disciplinary board’s goal of protecting the public. ... [T]he reason for immunity is that the court wants to preserve and enhance the judicial process. However, eliminating any threat of punishment (except criminal perjury charges) extends absolute immunity beyond its historical reach.
Id. at 832 (citation and internal quotation marks omitted).
Forman does not cite any cases extending quasi-judicial immunity to professional disciplinary proceedings. However, in numerous cases in addition to Deatherage, courts have recognized immunity does not extend to such proceedings. See Imbler v. Pachtman, 424 U.S. 409, 429, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (noting immunity of prosecutor from civil liability does not exempt his amenability to professional discipline); Lythgoe v. Guinn, 884 P.2d 1085, 1092 (Alaska 1994) (upholding absolute immunity for a court-appointed custody investigator but noting additional safeguards exist, including reporting a doctor’s behavior to the medical boards); Budwin v. Am. Psychological Ass’n, 24 Cal.App.4th 875, 29 Cal.
The purpose of the Board is the protection of the public. S.C. Code Ann.§ 40-1-40 (2011); see also Wilson v. State Bd. of Med. Exam’rs, 305 S.C. 194, 196, 406 S.E.2d 345, 346 (1991) (“The revocation of a physician’s license ... is designed not to punish the physician ... but to protect the life, health and welfare of the people at large .... ” (omissions in original) (quoting Levy v. Bd. of Registration & Discipline, 378 Mass. 519, 392 N.E.2d 1036, 1041 (1979))). Extension of quasi-judicial immunity to a licensee would hamper the Board in its execution of this vital public function. Accordingly, we hold quasi-judicial immunity for GALs does not extend to disciplinary proceedings.
II. Findings of Fact
Forman argues the Board’s findings of fact are not correct. We disagree.
The Board found Forman had violated state statute and regulation by asserting she had complied with the GAL statute when she had not performed all of the duties the statute requires. See S.C. Code Ann. § 40-63-110(B)(9) (2011) (listing as a ground for discipline “the licensee has violated the principles of professional ethics or standards of conduct as adopted by the board and promulgated in regulations ...”); S.C. Code Ann. Regs. 110-20(8) (2012) (“A social worker shall not commit fraud and shall not represent that he performed services which he did not perform.”).
The Board’s expert witness, Jania Sommers, described how Forman failed to comply with the statutory requirements in her investigations of these cases. See S.C. Code Ann. 63-3-830(A)(2) (2010) (requiring a GAL to conduct “an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family”); id. (setting forth requirements a GAL investigation “must include”).
III. Jurisdiction
Forman argues the Board did not have subject matter jurisdiction to make findings she failed to perform GAL responsibilities as required by statute. She also asserts the family court has exclusive authority to appoint GALs and the Board’s prohibition of her working as a GAL is an unconstitutional usurpation of the family court’s absolute discretion. We disagree.
“ ’Subject matter jurisdiction is the power to hear and determine cases of the general class to which the proceedings in question belong.’ ” Brown v. S.C. Dep’t. of Health & Human Servs., 393 S.C. 11, 16, 709 S.E.2d 701, 704 (Ct. App. 2011) (quoting Majors v. S.C. Sec. Comm’n, 373 S.C. 153, 159, 644 S.E.2d 710, 713 (2007)). “A court’s subject matter jurisdiction is determined by whether it has the authority to hear the type of case in question. Allison v. W.L. Gore & Assocs., 394 S.C. 185, 188, 714 S.E.2d 547, 549 (2011). “This same principle applies to administrative agencies.” Id.
The South Carolina General Assembly provided for the creation of the Board as administered by the South Carolina Department of Labor, Licensing and Regulation. S.C. Code Ann. § 40-l-40(B) (2011). It authorized the Board to investigate and discipline persons licensed by the Board. S.C. Code Ann. §§ 40-63-80 to -210 (2011). Thus, the Board clearly has authority to hear a disciplinary case of a licensed social worker.
Forman argues the Board lacks jurisdiction or authority to prevent the family court from exercising its discretion in appointing a GAL or to prevent a family court appointee from
Forman asserts her responsibilities as a GAL did not fall within the definition of the practice of independent social work because the definition includes mediation, which GALs are prohibited from engaging in and client education, which she asserts is “impossible” for a GAL as GALs do not have clients. Mediation and client education, however, are just two aspects encompassed by the broad and varied practice of independent social work. The practice of independent social work-clinical practice is defined as follows:
the professional application of social work theory, knowledge, methods, principles, values, and ethics, and the professional use of self to restore or enhance social, psychosocial, or biopsychosocial functioning of individuals, couples, families, groups, and direct clinical needs of organizations and communities. ... The practice of independent clinical social work includes case management, information and referral, mediation, client education, supervision of employees, consultation, research, advocacy, outcome evaluation, and expert testimony.
S.C. Code Ann. § 40-63-20 (26) (2011). This statute includes advocacy in the definition of independent clinical social work. See Townsend v. Townsend, 323 S.C. 309, 316, 474 S.E.2d 424, 428 (1996) (“Generally ... a guardian ad litem must perform two distinct functions: (1) ascertaining the best interests of the ward, ie., gathering information; and (2) advocating to the family court the ward’s best interests. Thus, the guardian ad litem’s role is neither wholly that of an inquisitor nor wholly that of an advocate; rather, it is a hybrid role.”).
Furthermore, our supreme court has recognized a professional may be disciplined for actions the professional took while not engaged in the practice of his or her profession. See S.C. Real Estate Comm’n v. Boineau, 267 S.C. 574, 579, 230 S.E.2d 440, 441-42 (1976). For example, it found “Even as members of the bar are subject to disciplinary procedures for conduct not strictly related to the practice of law, realtors may have their licenses revoked for conduct not strictly related to a transaction in which they are acting as broker.” Id. at 579, 230 S.E.2d at 442.
Forman also contends the Board could only sanction her if the family court found wrong-doing on her part. The family court’s primary concern is the best interest of the child. See Harris v. Harris, 307 S.C. 351, 353, 415 S.E.2d 391, 393 (1992) (“Family Court is vested with the exclusive jurisdiction to ensure that, in all matters concerning a child, the best interest of the child is the paramount consideration.”). The Board’s primary interest is protecting the public through the licensure and discipline of social workers. See § 40-1-40. Just as a conviction by a court of competent jurisdiction is not a prerequisite to a board’s exercise of its discretion in ordering a suspension of a license, a finding of wrongdoing by the family court is not required for the Board to discipline a social worker. See Wagner v. Ezell, 249 S.C. 421, 433, 154 S.E.2d 731, 737 (1967) (rejecting argument that the Board of Examiners of Optometry had no authority to act in suspending a
We hold the Board had authority to discipline Forman for her actions as a GAL and to issue the sanctions it imposed on Forman.
CONCLUSION
Based on the foregoing analysis, the order of the ALC is
AFFIRMED.
. S.C. Code Ann. §§ 40-63-5 through -300 (2011).
. The Board held the State had failed to prove by a preponderance of the evidence Forman had failed to disclose a conflict of interest or that she had put her own financial interest ahead of her professional responsibility.
. Forman failed to challenge the ALC's ruling the Board has the ability to discipline a licensee for behavior in activities not strictly related to the licensed social work practice. Accordingly, this ruling is the law of the case. See Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012) ("[A]n unappealed ruling, right or wrong, is the law of the case.”).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.