Dental Board Scandal in Nevada

Recently, during a meeting of Nevada State Board of Dental Examiners (“NSBDE”) on December 1, 2016, the NSBDE approved a job opening for “General Counsel.”¹ At first glance, this seems rather innocuous, but it was placed on the NSBDE’s Agenda as a directive from Nevada’s Office of the Attorney General and included as part of an “Amended Notice.”² This seemed like a strange thing to do since the Dental Board’s outside counsel, John Hunt, Esq., already advertises himself as “General Counsel” on NSBDE’s website.³ Most likely, the agenda item to obtain “Approval to post job opportunity for the position of General Counsel(s)”⁴ was done in response to a letter the NSBDE had received from the Office of the Attorney General earlier this year.⁵ On March 10, 2016, the Office of the Attorney General wrote to NSBDE’s President, Timothy Pinther, DDS, the following:

“Nevada Rule of Professional Conduct 1.7 prohibit the same attorney from acting as both prosecutor and Board counsel whenever the Board adjudicates the legal rights of a licensee.”⁶

In other words, a conflict of interest is created when an attorney (e.g., outside counsel) is directly involved in the investigation process and in the disciplinary process (e.g., inside counsel) to a Board. The reason such a conflict must be avoided is because it violates the due process rights of those investigated and then prosecuted by the same attorney serving as both independent and general counsel to the Board.⁷ The problem for the NSBDE is that its attorney, John Hunt, has been in violation of Nevada Rule of Professional Conduct 1.7,⁸ where an attorney is prohibited from having a “conflict of interest,” in most, if not all cases, where Hunt’s participated in the discipline of dental licensees as both an investigator and prosecutor for the past 26 years.

Thus, a conflict of interest has been created in every case where Mr. Hunt has served in this dual capacity for the board. This is because Hunt not only routinely communicates with those associated with the investigation of licensees—including private investigators, dental screening officers, etc.—but he is also an active participant in the disciplinary process (e.g., Hunt bills for his “fees and “costs associated informal and formal hearings). Hunt then communicates with NSBDE members regarding punishment of licensees whereby he makes recommendations for discipline and drafts the final disposition to be rendered by the Board in the form of a “Stipulation Agreement,” all while bypassing the procedural process established for the NSBDE.8 Regardless, such actions exceed Hunt’s role as independent counsel and thereby prejudice the entire disciplinary process in violation of Rule of Professional Conduct 8.4(d).¹⁰

In addition to Hunt’s potential ethical violations there appear to also be some inconsistencies with his NSBDE contract for services as an independent contractor. Here are the facts:

1. 1. On or about October 22, 2009, Hunt signed a contract with the NSBDE for Independent Contractor Services “not to exceed $500,000”;¹¹
2. 2. On August 13, 2012, Hunt added an Amendment to his contract increasing his 3-year limit from $500,000 to $700,000 “with no annual limit”; ¹²
3. 3. On May 17, 2016, Hunt again added an Amendment to his contract increasing his 3-year limit from $700,000 to $925,000 “with no annual limit”;¹³
4. 4. From May 17, 2016 to October 11, 2016, there is no evidence in NSBDE Notices, Agendas, Minutes, or Attachments that any other discussions, changes, or approvals were made to Hunt’s Amendment;
5. 5. On October 11, 2016, the Agenda for Board of Examiners’ (“BOE”) Meeting for Contract Item #27 reads: “The purpose of this amendment is to increase the contract amount from $700,000 to $1,200,000”;¹⁴ and
6. 6. On November 8, 2016, Agenda for BOE’s Meeting for Contract Item #33 again reads: “The purpose of this amendment is to increase the contract amount from $700,000 to $1,200,000.¹⁵

As a result of members of the dental profession and public showing up before the BOE to protest Hunt’s increase in salary, Nevada’s Governor Brian Sandoval made the motions to have the NSBDE’s contract to increase Hunt’s salary “continued”¹⁶ and eventually, “withdrawn.”¹⁷ Moreover, it appears the NSBDE never actually approved, much less knew about Hunt’s and NSBDE Executive Director Debra Shaffer’s submission to get Hunt approved for an extra $275,000 from the BOE on October 11th and November 8th. This is because the NSBDE had already approved a $225,000 increase in Hunt’s salary from $700,000 to $925,000.¹⁸ Thus, if Hunt and Shaffer’s proposal to the BOE to increase Hunt’s salary $500,000 (e.g., from $700,000 to $1.2 Million) was done with deception, and without NSBDE approval, criminal statutes may have been violated.^{19,20,21,22,23,24}

Nevertheless, despite all of these known inconsistencies, Nevada’s Offices of the Governor and Attorney General have done nothing to address these issues other than request the NSBDE advertise a job opening for "General Counsel." Not surprisingly, Hunt was first in line to submit his application for the position, having previously campaigned for the position on August 18, 2016.²⁵ However, NSBDE's selection committee of Byron Blasco, DMD, Gregory Pisani, DDS, and Stephanie Tyler have all prejudiced themselves by expressing their high praise for Hunt on the record in an open meeting on May 20, 201626 and again on August 18, 2016.²⁷ Thus, the fix appears to be in for the NSBDE’s ethical misconduct, due process violations, contract breaches, accounting mismanagement, etc. to continue unabated without any real accountability to state officials or the public. If so, the NSBDE will continue to serve as an example of everything that's wrong with the administrative law system where there is no meaningful oversight of board activities by government officials who have a public duty to enforce laws that have been violated.^28,29,30

by Daniel F. Royal, DO, HMD, JD
Turtle Healing Band Clinic, Las Vegas, Nevada