Non-Adoption After Administrative Hearing

One of the most confusing parts of licensing law is the concept of “who makes the final decision?”  Even though licensees have the right to an administrative hearing before they are disciplined in any way by the agency, the written result of hearing is called the “proposed decision” and doesn’t become final until the agency itself reviews it and makes it official, a process called “adoption.”  If the agency rejects the proposed decision, that is called a "non-adoption."  The same term is also applied to a rejected proposed settlement. 

So, our clients ask, what’s the point?  Why go to hearing if I’m just going to have to deal with whatever the agency wants in the end?

First of all, non-adoptions are fairly rare.  Administrative law judges are legally trained to produce decisions that will be acceptable to state agencies, using disciplinary guidelines provided by the agencies themselves to create acceptable decisions.  The most common reason a proposed decision is non-adopted is not because the ultimate outcome is unacceptable to the Board, Bureau, Department or Agency but because the decision itself has left out something that an individual agency requires.  In that case, the decision often is revised in a minor, technical way, and then reissued with the same result.  A proposed decision can even be non-adopted in the client’s favor, to remove some condition that the judge proposed that the agency doesn’t want to be responsible for enforcing.

However, in many non-adoptions after hearing, the client usually has achieved a successful result at hearing, persuading the judge of the merits of his/her case, only to have the agency return the proposed decision because the agency fundamentally disagrees with the result.  This result is most common when the licensee is disciplined less harshly than the agency would like to see.  An agency may outright refuse to grant a license or insist on the outright revocation of a license.  Or, an agency may want probation where perhaps a judge would have allowed the client to practice freely, or an agency will insist on a condition that the judge did not find necessary.

Non-adoptions happen more frequently with cases handled by experienced license defense attorneys, because we sometimes will achieve a surprisingly good result for the client that the agency doesn’t expect.  However, after the agency studies the decision, they may come to understand the reasons for it and adopt it as written by the administrative law judge.

The agency holds most of the cards in this scenario, but the battle is not over for the licensee.  The client has the right, under the Administrative Procedure Act, to obtain a copy of the transcript and a chance to produce written argument directly to the agency (and occasionally, if granted, make an oral argument) about how the proposed decision should be treated.  Sometimes the agency ends up adopting the proposed decision in its entirely after written argument—a successful outcome in the end, albeit a frustrating path to success.  Sometimes a compromise is reached where the outcome isn’t quite the vindication offered by the proposed decision, but is better than the alternative the agency would prefer.  It is sometimes possible to negotiate a slightly different outcome after non-adoption and avoid the need for further proceedings.

The hypothetical problems posed by a non-adoption can best be answered by qualified counsel.  An attorney who has litigated many hearings will be in the best position to know when a proposed settlement or resolution is a good deal for the licensee.  If the licensee might do better at hearing, then the attorney needs to know whether “doing better” is likely to be kicked back by the agency, or whether the settlement offer represents the best deal.  An attorney in this position knows when the agency is being unreasonable, as they will have seen cases where the agency insisted on conditions that a judge ultimately did not order.  Further, the attorney will have seen how the agency adopted a better result for the client than they were willing to offer in settlement.  That’s the most important factor—if your attorney knows that the agency is likely to accept a proposed decision from a judge, then hearing is the best way to achieve the result you want.

RN Accused of Gross Negligence Avoids Probation

Earlier this year we were able to persuade the Board of Registered Nursing to drop its demand for a lengthy license probation and instead give a registered nurse a reprimand.  Registered nurses are mandated reporters of abuse under California law.  A reprimand, also known as a public reproval, does show on the license record but does not require that the RN perform any task other than what is immediately required of the reprimand, usually taking a class or payment of money.  

In this case, the RN was charged with gross negligence and incompetence for failing to report a sexual assault in a psychiatric hospital.  We handled the matter from the time near the initial complaint, through the investigation and accusation stages, presenting mitigating and rehabilitating evidence to explain the nurse's actions and placing the incident in the context of an excellent work history.  The Board initially demanded placing the nurse on a lengthy probation.  However, upon further examination of the facts and negotiation, the Board of Registered Nursing agreed that there were significant mitigating facts explaining the nurse's decisions and that a low level of discipline was appropriate. We  were able to resolve the matter by accepting a reprimand and paying the Board's costs.  

DCA Investigations: Proceed With Caution

Being the target of a licensing investigation is one of the most surprising and stressful things that can happen to one of our professional clients.  Investigations often immediately follow a workplace incident, often where a disgruntled employer sometimes reaches out to the Board directly.  Or, a client may have a vindictive coworker or supervisor who reports their conduct to the agency.  Either way, the client is usually informed, rather suddenly, by a terse letter from the Department of Consumer Affairs, informing them that they’re being investigated.  What should they do next?  

Like most professionals who want to do the right thing and take pride in their jobs, our clients’ first instinct is usually to try to “straighten everything out” with the investigator.  They hope that perhaps a friendly conversation with an investigator will end the matter—they’ll see that the agency has made a mistake and in fact the person who made the complaint is usually to blame for the incident.  Most of the time, our clients really are put in a difficult position by the false allegations of someone else.  It’s natural for them to want to “clear things up” by making themselves available for interviews, or by signing releases, or by answering questions.

 

Unfortunately, clients are unaware of a critical fact about investigations: the investigator’s job is to gather information, not to assign blame.  The investigator is not a judge.  He or she does not determine whether or not the agency should take action.  The investigator, like a good journalist, is only collecting sides of the story.  When an investigation starts, usually one side of the story (the side unfavorable to our client) has already been collected.  That’s why we urge our clients to exercise caution when they are being investigated.  If the agency asks for records from our clients, we need to protect our clients' privacy.  If the agency wants to interview our client, we interview our client first so that our client is prepared and we know the full story.  And, in cases where our client is accused of misconduct, we make sure that client doesn’t waive their constitutional rights out of a mistaken sense that it will all go away if they just answer questions.


Most state agencies have regulations that mandate cooperation with agency investigations. However, clients can exercise their Fifth Amendment right to remain silent. Refusing to answer questions in an investigation interview can be a missed opportunity to provide critical balanced information to an agency, or be a good decision that prevents making damaging admissions.  That’s why we approach investigations with thoughtfulness and caution.

 

Similar Cases, Different Results

We were fortunate to experience a case study in the value of getting a qualified attorney earlier this year in a case involving the Department of Motor Vehicles.  Two licensees came to us with identical serious criminal convictions for the same conduct.  We offered retention to both clients, but only one retained.  The other proceeded to represent himself.  As the hearings were held separately, we prepared our client thoroughly by securing documentary evidence and witnesses, and spent several meetings discussing his testimony.  Following his hearing, our client's license was saved, and placed on probation.  His former colleague was unsuccessful and his license was revoked.  Knowing how to present your case to the agency can be more important than even having a strong case.  It is so easy to undo years of hard work by charging into a legal setting unprepared for the particular rules that govern administrative hearings.  If your license has value to you, invest in the security of qualified counsel.

Insurance Agent Keeps License Clear Despite Multiple Accusations of Failure to Place Coverage

One of our clients came to us after a former coworker took premiums from their insurance firm, promised to place auto policies, but instead kept the money and blamed it on our client.  The Department filed an Accusation against him alleging mishandled premiums, failure to properly oversee his business, and fraudulent conduct.  The Department refused to enter into a settlement and the case had to be litigated in administrative court. 

As a result of hearing, the client was cleared of all allegations of fraud and mishandled premiums, and was required to pay a modest monetary penalty to the Department in lieu of a suspension.  His license was not otherwise disciplined or restricted in any way, and he was not ordered to pay restitution or costs.  The client was specifically praised for his integrity and his good business reputation.

Department of Social Services Revocation Action Results in Two-Year Probation

We assisted a family child care home after a child in their care wandered away from the facility in the middle of the night.  The Department insisted that the facility be permanently closed.  After hearing, the licensee was described as respected, beloved caregivers, the facility was specifically recognized as being high quality, and the licensee was placed on two years’ probation.  During the period of probation, the licensee must obey all laws.

Probationary Contractor's License Granted to Client Convicted of Attempted Murder

One of our clients now works as a general contractor after he won a hard-fought battle against the Contractor’s State License Board.  Our client served many years in prison after a severe methamphetamine addiction led to an accident involving a young child.  The client came to us after the license application had been denied, and the California Department of Justice attorney indicated to us that CSLB would not issue the client any kind of license. 

We prepared the client for hearing and took the case before an administrative law judge.  We helped the client acquire a package of rehabilitation evidence to present to the judge, prepared the client’s family and friends to testify, and went over every detail of the steps our client had taken to restore his reputation and make amends for his crime and addiction.  Despite strong opposition from the Attorney General’s office, the judge was persuaded that our client deserved his contractor’s license.  Although the Board had opposed licensure from the beginning, they reviewed the ALJ’s decision and adopted it as their own.  Now our client is a successful general contractor.

License Accusation Dismissed Following Hearing

One of our most interesting cases in 2014 involved the Respiratory Care Board.  Many licensed professionals don’t realize that their conduct both inside and outside of the workplace is under scrutiny by the state.  When licensees are accused of a crime, they often express surprise that the Board cares, reasoning that the crime “didn’t happen at work.”   

For one of our clients, a respiratory care therapist, we had to defend him against a non-criminal act: a former employee who accused him of making a bad business deal.  Although the client had satisfied his obligations to his employee, the employee was upset and filed a complaint with the Board, who brought an Accusation seeking to take his license away.  Despite our best efforts, the Board refused to settle on any terms, and demanded revocation of the license. 

We took the client to hearing and argued that the client deserved no discipline at all.  We showed evidence that the client’s conduct had been appropriate and justified, and that all his obligations to his aggrieved coworker had been met.  The judge agreed.  The Accusation was dismissed and the client was able to freely continue his career with no discipline at all. 

Discipline is not the inevitable result of an Accusation by a state agency.  We use our experience at hearing to determine how to achieve the best results for our clients, so that they are not pressured into taking discipline they don’t deserve.

Licensed Vocational Nurse Achieves Two-Year Probationary License After Multiple Alcohol-Related Convictions

Followers of our blog know the uphill battle California nursing applicants face when they suffer more than one conviction for alcohol-related conduct.  Because current California law allows for significant discipline and denial after even a single instance of DUI, multiple convictions can mean a denial and an unwillingness to settle for nurses who have more than one conviction.  However, in 2015, we pursued a case to the administrative hearing and won the client a two-year probationary license.  This is a significant departure from the LVN recommended guidelines, which call for a three-year probation at minimum in cases like these.

Critical to our victory was the relative age of the conviction suffered by the client.  Both convictions were expunged, the client held two other professional licenses in good standing, and most importantly, the client fully acknowledged the wrongfulness of the past conduct and had taken affirmative steps to change the behavior that led to the conviction.

We successfully convinced the Administrative Law Judge to deviate from the disciplinary guidelines in the Proposed Decision, and the Decision was upheld by the agency.  This case teaches prospective nurses an important lesson: the disciplinary guidelines do not represent the guaranteed result for any particular case.  A poor case presentation can result in a denial or revocation even when the conduct is relatively minor.  An excellent case presentation, coupled with extraordinary evidence, can result in softer discipline, sometimes even less discipline than what the Board would consider the “minimum” discipline.

This case result does not constitute a guarantee, warranty, or even a prediction regarding the outcome of your legal matter.

Unrestricted License Granted to Insurance Agent with Multiple Felonies

In 2015, we reached the end of a long, arduous road to licensure for one of our clients who had been convicted of two felonies: the client had stolen a purse, participated in an armed robbery, and damaged a vehicle in a fit of road rage.  However, these crimes were many years in the past, and the client had gone above-and-beyond for years to demonstrate rehabilitation, including significant voluntary charity work, sobriety, and advanced education.

Our readers know that the Department of Insurance places many obstacles before ex-felons who want to be insurance agents.  First, our client had to get the consent of the Insurance Commissioner in order to even be allowed to apply for a license, since the application would involve disclosure of a felony.  This consent, called “1033 consent” because of the code section requiring it, was granted with our help.

Even after consent was obtained, the Department still denied our client’s license application, and did so without even allowing for an administrative hearing.  We filed a Petition for Reconsideration on the “summary denial,” using documentary evidence and legal argument to persuade the Department to reconsider its own decision.  It worked.  The client’s summary denial was vacated, replaced not by an insurance license, but by a “Statement of Issues.” In other words, a refusal to grant a license and a request for an Administrative Law Judge to make a decision in the matter.

We took our client to hearing and, through testimony of the client, character witnesses, and documents attesting to the client’s strong character, including remorse and change, the client was successful.  The ALJ granted the client an unrestricted license, a major victory for the client and for our firm.  The Department adopted this Decision, and the client is now licensed.

The long road and many obstacles faced by this client would discourage some prospective clients from pursuing a license.  However, persistence and quality representation can lead to success, and this client is now enjoying a successful career in insurance.

This case result does not constitute a guarantee, warranty, or even a prediction regarding the outcome of your legal matter.