Kippax hearing awaits; dental board and Attorney General's Office clashing

AUGUSTA — On the same day the Maine Board of Dental Practice agreed to suspend the license of Lewiston oral surgeon Jan Kippax last month for numerous allegations of professional misconduct, it apparently held an illegal executive session that led to a complaint about the quality of the legal support it receives from the Attorney General’s Office.

The board’s members were so upset with the legal counsel the AG’s office provides that they threatened to cease payments for the state lawyers assigned to the board beginning March 1.

Letters exchanged between the dental overseers and the attorney general show that relations between them are less than ideal, a situation that may have had an impact on the board’s handling of its most difficult cases.

The five letters they exchanged in the last two weeks of February, obtained from a Freedom of Access Act request, contain a number of blacked-out sections, but the portions made available make it clear that the bureaucratic problems are not new.

There is only a hint the legal friction may have had an impact on the nine-member dental panel’s actions against Kippax, including a Feb. 14 request from the board to have a different legal counsel assigned to it or to hire an outside lawyer immediately because “there are several emergency actions and pending matters” that need attention. It suspended Kippax’s license the next day.

Neither members of the Attorney General’s Office nor the dental board are willing to talk about the rift highlighted in the letters.

The Kippax case, which is slated for an adjudicatory hearing in April, is by far the biggest and most complicated one that the dental panel has dealt with in public for years. But there is no telling what other investigations or issues may be taking place behind the scenes, so it’s possible the dispute about legal help doesn’t involve Kippax.

The board’s initial letter said that it had already brought its concerns about legal representation to Andrew Black, the division chief for the attorney general’s nine-lawyer professional and financial regulation division. Board members said they had “met with him on a few occasions to resolve” their concerns, apparently without getting what they wanted.

A letter to Attorney General Janet Mills, signed by every member of the board, said the assistant attorney general it normally works with is sometimes changed due to a conflict or workload issues involving other regulatory panels. Mills’ office provides attorneys for many state needs, including licensing boards.

Members told Mills they understand her office has many people seeking assistance, but asked her to assign a primary legal counsel to the dental board who has “experience in handling complex cases, experience in handling high-profile regulatory issues and to increase the level of legal resources provided.”

Mills responded on Feb. 17 in a letter to the board, a copy of which given to the Sun Journal was heavily redacted. She told the board that without more information about a closed-door session a week earlier, she found it “difficult to identify the cases and concerns” bothering panel members.

But, she said, the board “currently has the benefit of two different assistant attorneys general, one with eight years experience and the other with 35 years of legal experience, with particular focus on complex regulatory matters.”

On Feb. 14, tackling a related issue, Chief Deputy Attorney General Linda Pistner wrote to the dental panel to accuse it of an “apparent violation of law” during its Feb. 10 meeting by holding a closed-door session improperly.

Pistner said the board — “without any public notice or legal authority” — held an executive session “to discuss some matter of concern.”

Without asking the unnamed assistant attorney general who was on hand, a board member asked to go into secret session to talk about “a personnel issue” without indicating its precise nature or citing the statutory authorization to talk about it outside of public view, she said. After voting to approve the session, the board cleared the room of outsiders and also asked the lawyer to leave.

Pistner said it “appears that the matter which the board discussed was not a personnel matter that might have justified an executive session” under the law, “but some other perceived grievance that should have been communicated directly with this office and with the attorneys advising the board.”

She warned the panel not to take any action based on “its illegal discussion” and urged its members to seek “some appropriate remedial action for this apparent violation of law.”

Mills called the executive session a “violation of the Freedom of Access law” and told members that a lawyer failing to object “does not justify an inappropriate motion to go into executive session on a matter that was not truly a ‘personnel’ matter, when the matter was not on the public agenda” and when members didn’t tell the attorney in advance of its proposed action.

The chair of the dental board, Dr. Geraldine Schneider of Auburn, wrote back to Pistner on Feb. 14 to clarify what had gone on.

Schneider said the panel “takes very seriously its statutory mandates” and its commitment to public access, but believed it had the legal authority to go into executive session. She noted that lawyers didn’t tell it otherwise.

She said, though, that once it heard from Black later that day, it discussed its concerns “in public session later in the evening” and provided counsel the chance to comment.

Mills said she looked forward to receiving more information from the board “and discussing these matters further.”

Jumping at the opening, board members at their Feb. 27 meeting said they’d love to meet with Mills to talk about their concerns in depth. Schneider sent Mills a letter the next day asking if she would be willing to meet face-to-face.

“It would be great to have her here,” said Nancy Foster, a board member.

Sitting down with Mills would provide an opportunity “to share with her any of our frustrations,” Schneider said.

Paul Dunbar, another board member, said it would be “very good” for Mills to come to a session, but cautioned colleagues that she may not have time. “We’re only a little, little speck on her job,” Dunbar said.

“I think that it’s important it goes beyond a letter,” said Rowan Morse, the public member of the board. “There has to be more communication. There just has to be more than what we have now.”