Van Boven Fallout Continues
While appeals proceed, Baylor professor campaigns to save SOAH
By Michael King,
10:00AM, Thu. Jan. 10, 2019
The years-consuming litigation between Dr. Robert Van Boven and the Texas Medical Board looks likely to persist through the new year, as both parties now have appeals pending before the Third Court of Appeals. Meanwhile, reverberations continue.
The TMB officials sued by Van Boven (represented by the state Attorney General’s office) initially submitted notice of appeal to the decision by District Judge Dustin Howell that Van Boven can pursue his lawsuit against some of those the officials, on his claims they acted “ultra vires” (without legal authority) when they refused to withdraw the charges listed against him in 2016 in the federal National Practitioner Data Bank (charges of which he was subsequently exonerated). A few days later, Van Boven filed his own general notice of appeal to the Third Court – presumably to challenge Howell’s denial of a temporary injunction as well as the judge’s exclusion of certain TMB officials from liability.
While that litigation continues, one of the witnesses who testified in support of Van Boven – Prof. Ron Beal of the Baylor University School of Law – has initiated a personal campaign on the doctor’s behalf, and more broadly, in defense of the State Office of Administrative Hearings. Beal has written to the Attorney General’s Office, pleading with the assistant attorneys general who argued the Van Boven case to drop their defense and move to withdraw Van Boven’s listings at the NPDB. In his Nov. 28 letter, Beal attempted to persuade assistant attorney generals Ted Ross and Charles Eldred that they are “obligated morally, legally and ethically to end this matter now and not allow these rogue actions of State officials to further impose personal, financial and professional limitations on Dr. Van Boven.”
Beal also wrote to Nichole B. Bunker-Henderson, chief of the attorney general’s administrative law division, saying he had “never seen such a blatant case of agency bad faith,” and urging her to intervene to “end this matter now.” (Neither the assistant AG's nor Bunker-Henderson responded to the Chronicle’s request for comment.)
Meanwhile, Beal continues to try to undo collateral damage of the Van Boven case – disruption of the State Office of Administrative Hearings. (Beal is widely acknowledged to be the foremost authority on Texas administrative law, and is author of the standard textbook on the subject.) In 2017, a SOAH administrative law judge, Hunter Burkhalter, heard TMB’s case against Van Boven on “boundary violation” claims, and eventually issued the decision that exonerated the doctor. TMB officials objected to Burkhalter’s ruling, and Chief Administrative Law Judge Lesli Ginn, after meeting with TMB General Counsel Scott Freshour, demanded Burkhalter’s resignation. In response, Beal wrote op-eds arguing that Ginn’s actions endangered not just SOAH but all Texans’ right to a fair hearing before state agencies seeking sanctions against them. In the Texas Tribune Aug. 8, Beal wrote: “Chief Judge Ginn has wholly failed to comply with the law to protect the decisional independence of the SOAH judges.”
In letters to Governor Greg Abbott and other officials, Beal has vociferously protested Burkhalter’s dismissal. More recently, Beal has argued that Ginn is not legally qualified to serve as Chief ALJ. As Beal sees it, Ginn does not meet the Chief ALJ legal requirements for specific experience in administrative law – that is, five years of practice as an attorney or judge in administrative law. In a memo sent last year to the governor, other officials, and the members of the Senate Nominations Committee (which considers gubernatorial appointments), Beal says “Ginn is not statutorily eligible to hold the office of Chief Judge, either two years ago [at her May, 2016 appointment], now or in the future.” (Ginn's two-year appointment nominally expired May 1, 2018.)
Asked by the Chronicle, Ginn responded to Beal’s memo via email: “Before joining the State Office of Administrative Hearings, I served for more than ten years as a litigator and administrative law practitioner with the Texas Attorney General’s Office. In addition to my own law practice, I supervised the work of all of the attorneys in the Financial Litigation and Charitable Trusts Division of AG’s office as a manager, which included the handling of all administrative law matters assigned to the division. I have also served on the Council of the Administrative and Public Law Section of the State Bar of Texas since 2010, including as its chair. These qualifications meet the requirements of Texas Government Code, Section 2003.022.”
Beal read Ginn’s response, cited her references to “supervising” other attorneys and her state Bar service, and concluded bluntly: “What she calls administrative practice is simply not.”
Thus far, Beal’s complaints have mostly fallen on deaf ears, with no public response from the governor’s office – with the exception of indirect, vague intimations from professional colleagues that the professor needs to bite his tongue. (Chronicle requests for comment from Abbott's office have received no response.). Austin Sen. Kirk Watson, who currently serves as Vice-Chair of the Nominations Committee, has been an exception, and he expresses sympathy with Beal’s intentions of defending the law and protecting SOAH. “I completely understand why he’s so troubled, in terms not only about the situation at the agency,” Watson said, “but also about the concerns we should have about the leadership of that agency – particularly as I hear about the number of ALJs with some experience and tenure that are leaving the agency.”
But Watson insists that unless the governor moves to reappoint Ginn, she will continue to serve on a “holdover” basis, and that in that circumstance the Senate has no authority to intervene. Beal argues that the committee could choose to convene a hearing on Ginn’s qualifications, but Watson says he disagrees. “That only applies to recess appointments,” Watson said, in which case a new Legislature “may” legally convene a committee to consider an appointee whom the governor hasn’t confirmed by reappointment. While he disagrees with Beal about the committee’s authority, Watson said he remains “very worried about the future of [SOAH].”
In the short term, the Senate's inaction might not matter, as Lt. Gov. Dan Patrick has yet to appoint a new Nominations Committee. Recently, he has shifted the committee’s current chair, Fort Worth Republican Sen. Brian Birdwell, to head the Natural Resources and Economic Development Committee, meaning he’s unlikely to chair Nominations. Other appointments have not yet been announced. (Birdwell’s office did not respond to a request for comment on Beal’s correspondence.)
In a December email to Watson, Beal again pleaded for his help in taking some action on Ginn’s tenure at SOAH, and reiterated, “The only people hurt by all of this are Texas citizens. It is nothing personal. I have never met [Ginn]. She may be a great person, but she is a horrible Chief Judge. She must go. … No one is standing up to tell the Governor that what he is doing is simply wrong.”
Well, one person continues to stand up: Ron Beal.
For the full story, see austinchronicle.com/robert-van-boven.