How to Petition for Reconsideration Successfully
Before giving up hope or going all-in on a petition for writ of mandamus, pursue a direct plea to the licensing agency to reconsider their disciplinary decision.
So, you decided that an attorney was too expensive. Or, you believed that you could just smooth everything over with your licensing Board, Bureau, Committee, Commission, Department, or Agency if you just got a chance to speak to them person-to-person. Or, because it was not, "real court," you figured it would be highly informal.
Wrong. Wrong. And most definitely wrong. But you already knew that.
So, now what? Either you have just left your administrative hearing that you may have made a colossal mistake. Or, you just received notice from your licensing agency that it has received a proposed decision from the Office of Administrative Hearings, that it proposes revocation (or some other form of severe license discipline) and is contemplating whether to adopt it as its own. In either case, you probably feel a bit unnerved, helpless, and in need of guidance on where to start.
Well, this blog entry is designed to help you let you know your rights and how you can go about exercising those rights to their fullest extent. Unfortunately, doing so may not be enough to undo damage already done at your administrative hearing or cash-in on opportunities that have already passed. Furthermore, this blog is not designed to be a one-size-fits-all solution to your predicament. It is not going to replace the specific and sage advice of an experienced administrative law attorney. So, if anything, contact one immediately if that is the case.
That being said, there is a mechanism that can at least give you one last shot before that license discipline becomes permanent with the licensing agency - a petition for reconsideration.
Statutory Authority for a Petition for Reconsideration
A petition for reconsideration is authorized by Government Code, section 11521. It provides that a licensing agency must permit the licensee at least 30-days to petition it to reconsider any decision it intends to adopt or impose on the licensee regarding his or her license.
It also provides the licensing agency to set a deadline to grant reconsideration by setting an "effective date" of the discipline, which must be equal to or more than the 30-days.
Effective Date or 30-Days, Whichever is Longer
Most of the time, the licensing agency sends the notice of discipline or adoption of proposed discipline, and then sets an effective date of that discipline. That is more than likely the deadline to petition for reconsideration. Only in the event the licensing agency erroneously mails the notice late or does not set an effective date does the "figure out the 30-day deadline on your own," come into play. And keep in mind that if the notice is served by mail upon the licensee, they receive an additional 5-days on that deadline.
Moreover, the licensing agency can extend the deadline. They can, first, grant a stay of the effective date up to 30-days, solely for purposes to permit the licensee to prepare his or her petition. And they can, second, grant a further stay of up to 10-days past the original or new effective date, solely for purposes of considering a received petition.
So, at a minimum, pursuing a legitimate petition for reconsideration can oftentimes lead to a delay in the effective date of the license discipline.
Grounds for the Petition
And therein lies the rub - the petition needs to be legitimate. To be a legitimate petition for reconsideration, it needs to touch upon the appropriate grounds for establishing a reason why the licensing agency should reconsider its decision. In short, a petition that says, "you should reconsider this decision just because," is not legitimate and is not going to warrant any due diligence or extensions on the part of the licensing agency.
Rather, some of the grounds for a petition for reconsideration are as follows:
Previously unavailable, newly discovered evidence of rehabilitation, mitigation, or good character.
Agency acted in excess of its powers
Agency abused its discretion
Agency was influenced by bias
Penalty is excessive as a matter of law
Findings not supported by evidence
Penalty not supported by findings
Other potential arguments mirror those found within the Code of Civil Procedure, section 473.
As you can see, most of these arguments are, more-or-less legal arguments. As such, they are something that you would want an attorney to make on your behalf, drawing from California case law, the transcript from your hearing (i.e. more than likely you were handed a slip of paper from a court reporter providing contact information on how you can purchase a transcript [they are not cheap]), and the resulting decision in your case.
Unavailable, Newly Discovered Mitigation
One argument that relies on the licensee is obtaining unavailable or newly discovered evidence of rehabilitation, mitigation, or good character.
Depending upon how your hearing went, you may have not even known the importance of this type of evidence or even put competent forms of it into the record. But, in any case where the licensing agency has you dead-to-rights for the charged cause for discipline, this is the type of evidence that will soften the disciplinary blow.
What is important is effectively communicating to the agency its unavailability in your petition. Because not only must you now supply it--you must also explain to the court as to why it was not supplied at the time of your hearing. Thus, any self-serving testimony about your own actions in rehabilitating or mitigating the damage from your wrongdoing offered in this petition could still be rejected as untimely by the agency.
The reality is that agencies are like people--some will forgive the failure to timely supply it, whereas some will not. The important thing is putting it on NOW as opposed to not putting it on at all.
Keep in mind that this argument is the only one of the above that (more or less) MUST be made at this stage. If it is not made or if the petition for reconsideration is never even sought, then it becomes next-to-near impossible to raise new issues to be considered in formulating license discipline at the next stage (cf. Motion to Augment the Record, in a petition for writ of mandamus.)
Absolute Last Chance - Writ
If a petition for reconsideration fails, then your only option thereafter is a writ of administrative mandate. This petition is filed in superior court and, more-or-less, asks it to intervene in the disciplinary process because of due process violations--most of which are listed above.
The petition can be accompanied with a judicial request for stay, which will be granted if you can show that granting the stay will do no harm to the public, as well as prove that you will prevail on the merits of your petition. Yes, to get a stay, you have to prove to the court that your petition is meritorious and that you will win. So, yikes.
Depending upon the circumstances, a writ may be even more effective than a petition for reconsideration. However, in cases that come down to the severity of discipline imposed, it is a hail mary. Thus, it is not something you should be relying upon to overturn that overly aggressive licensing agency.
If you find yourself in the position of feeling like your licensing boat has sprung a leak because of a poor administrative hearing or because of receipt of notice of a proposed decision received by the licensing agency that has proposed severe license discipline, contact an experienced administrative law professional immediately. He or she might determine that laying the ground work for a petition for reconsideration is worthwhile and may be able to give you some pointers on what you need to gather to help support the petition.