• Justin Hein

Non-Adoption by Licensing Agency

Even after an administrative hearing, the licensing agency gets the last word.

Imagine that you are a licensed professional accused of misconduct by your underlying professional licensing agency. The agency is seeking revocation of your license. You (wisely) retain counsel, attempt to negotiate a stipulated settlement, but the agency's attorney just will not budge.

So, you go to an administrative hearing. Through effective assistance of your attorney, you identify exculpatory and exonerating evidence to the underlying allegations. Moreover, you put on convincing evidence of rehabilitation and mitigation, as well as strong character witnesses. You can just tell that the Administrative Law Judge (ALJ) feels that you did nothing wrong, let alone something warranting the most severe penalty you can face. Revocation or suspension is all but avoided through the course of the ALJ questioning and statements, and you and your attorney feel confident that you are looking at some form of reprimand, fine, mandatory education courses, at most.

Well, maybe. That is because in professional licensing administrative hearings, the last word does not reside with the hearing officer.

Its Only a Proposed Decision

In California, the Office of Administrative Hearings (OAH) hears almost all license discipline or denial cases. OAH handles cases for a variety of occupations, including doctors, nurses, veterinarians, contractors, brokers, educators, and dependent care providers. This amounts to thousands of cases statewide--it has offices in Sacramento, Oakland, Los Angeles and San Diego.

Yet, hearing a case is different from deciding a case. OAHs's role is to ensure that due process is given to the licensee. This means notice and an opportunity to be heard vis-a-vis the allegations. While overseeing the hearing, the ALJ's role is to ensure procedural and substantive rules are followed in the case. And as a neutral observer, they also get the first crack at examining the evidence and testimony, making credibility determinations, weighing what is in the record, rendering findings, and proposing a decision.

Proposing a decision is much different than making a decision. Instead of, "thy will be done," OAH tells the underlying agency, "here is what I think and why."

Why Not a Final Decision?

Licensing agencies are found within the executive branch of government. As such, the licensing agency retains ultimate authority over their licensees.

OAH is also a department in the executive branch. It is merely there to serve the licensing agencies and provide fundamental due process to the licensees when matters touch upon the giving and taking of licenses.While licensees do not have a right to their license (a license is considered a privilege), they do have rights to ensure that those privileges are not unjustifiably taken away or denied.

However, even when OAH believes the licensing agency has overstepped their bounds, the licensing agency can disagree and say, "no, we think we got this right; license denied/revoked." In that case, the only reprieve the licensee then would have is to try to take the matter to the judicial branch of government by way of a writ of administrative mandate.

So, the ALJs' "proposed decision" can be adopted, modified or non-adopted by the licensing agency. If non-adopted, the matter can be re-set for a new hearing or decided by the licensing agency on the record.

What Really Happens

A very high and significant percentage of proposed decisions are adopted as written. However, occasionally a decision is rewritten or even decided differently by the agency.

Therefore, for ALJs to do their job, they must be "in tune" with the agencies for whom they decide cases. At the same time, they need to consider that their decision could possibly be reviewed by a judge in Superior Court, or the Court of Appeal. So, it is definitely a tightrope that the ALJ must walk sometimes in order to meet the wishes of the licensing agency while ensuring that the decision will be able to hold up in court, literally.

What that means for the licensee is that finding common ground with the licensing agency on appropriate discipline through settlement negotiations takes on added importance.

Why Go to Hearing?

If what is being offered in settlement is a significantly harsher discipline than what is typical or mandated by an agency Disciplinary Guidelines, then going to hearing makes sense. Or, if the licensee has evidence exonerating or exculpating their conduct--typically through a good expert witness on the standard of care--that the agency is not giving reasonable weight, then go to hearing.

But be Forewarned

But keep in mind that if what is being offered is within the discretion of the agency (e.g. between the minimum and maximum forms of discipline provided within the Disciplinary Guidelines), that the agency could very override any discipline imposed by the ALJ. Or in matters where there is multiple forms and types of evidence that will determine the merits of a particular charge, that the agency could minimize the importance of expert witness testimony over those other forms and types of evidence. And, as a result, impose a harsher form of discipline as a result.

And in both instances, the actions by the agency would likely NOT be considered a form of prejudicial abuse of discretion for purposes of judicial review by way of an administrative writ of mandate.

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