Funeral director's licenses to remain revoked
Friday, November 8, 2013
Missouri's state Board of Embalmers and Funeral Directors had the authority and “adjudicated the matter fairly” when it revoked Barbara Buescher’s funeral director’s and embalmer’s licenses, and the Buescher Memorial Home’s state license to operate a funeral business, a three-judge appeals court panel ruled this week.
The Kansas City court’s 11-page opinion ended with an order reinstating the board’s revocation decisions, and overturning Cole County Senior Judge Byron Kinder’s 2012 ruling blocking them.
“The circuit court abused its discretion in finding that Buescher and the Funeral Home’s due process rights were violated,” the appeals court ruled.
Buescher’s attorney, Clifford Cornell, wasn’t available to comment for this story.
The case began in 2008, when the board asked the state’s Administrative Hearing Commission to “establish cause to discipline the licenses.”
Presiding Judge Mark D. Pfeiffer wrote the opinion for the three-judge panel, and noted that Buescher “did not file an answer to the (Board’s) original or first amended complaint, thereby admitting the allegations.”
The appeals court said the Administrative Hearing Commission granted the board’s summary judgment motion and, in its decision, “documented the over 120 causes for discipline citing incompetence, gross negligence, violations of professional trust and confidence, monetary misconduct, and a complete disregard and refusal to cooperate with the investigative process by the Board’s investigators.”
The board revoked all her personal and business licenses after holding a disciplinary hearing that Buescher also didn’t attend.
Buescher challenged the revocations in Cole County circuit court in December 2009, and Kinder held a hearing on Nov. 1, 2010.
Almost two years later, he found in the board’s favor on all issues except Buescher’s complaint that the board’s “hearing was fatally flawed,” partly because two “biased” board members were involved in it.
Kinder ordered a stay on the license revocations and told the board to hold a new disciplinary hearing.
In its appeal to the Kansas City court, the board argued there was no lack of due process, since Buescher was given “adequate notice and a fair disciplinary hearing, (but) chose not to attend.”
She argued the hearing wasn’t fair “because two of the six Board members who determined the discipline … had an interest in the outcome of the decision, thereby creating the appearance of impropriety.”
Buescher said that board member John McCulloch — owner of American Prearranged Services Inc., a preneed company that had previously done business with Buescher —was prejudiced against her.
“It is undisputed that, at the time the Board met to consider disciplinary rulings regarding Licensees, McCulloch had had prior negative business dealings with Licensees,” Pfeiffer wrote for the appeals court. “But, it is also undisputed that McCulloch abstained from voting and recused himself from any participation whatsoever in the Board’s discipline of Licensees.”
Buescher also argued that Martin Vernon, the board’s chairman at the time of the disciplinary hearing, was prejudiced because he had inquired about creating a business relationship with Buescher.
But, the appeals court found no evidence any business or personal dealings with Buescher prior to the disciplinary deliberations.
Additionally, the appeals court said, Kinder’s finding of a “flawed” hearing was wrong, because no evidence was presented that the board was “influenced by anything other than the egregious conduct Licensees were accused of.”
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