One of our most frequent issues at the firm is clients calling who have become the subject of a California licensing board investigation. Investigations are handled primarily two ways, either by an enforcement analyst or technician inside a licensing agency’s offices, or in the field by outside investigators who work for either the board itself (such as the Medical and Dental Boards) or the Department of Consumer Affairs (all other boards).
If an investigation can be completed from the desk of a board employee in Sacramento, the questioning of a licensee usually consists of a letter asking for a written response. Such investigations can broadly be placed into two categories: requests for documents and information concerning a criminal conviction or discipline against another license held by the licensee, or, minor investigations which might be closed with the receipt of a satisfactory written response. A licensee should have all such written communications reviewed by an attorney. A response concerning a consumer complaint should be consistent with the complete case file. A reply to a board concerning a criminal conviction or other license discipline must be consistent with the available records concerning the incident and penalty. Inconsistent statements may be interpreted as dishonesty. Also, be cautious, there is always the possibility that a rather benign inquiry from a licensing agency may be a prelude to an in-depth investigation.
A much more complicated question is the extent to which a licensee should cooperate with an investigator in the field (such as a Medical Board Investigator or a Department of Consumer Affairs Investigator) who is investigating allegations of wrongdoing against that licensee. We generally follow these principles when clients face investigation: First, do not sign a release for your personal records, particularly medical records, except upon the advice of an attorney. Preservation of confidentiality is paramount. Would you freely seek medical or psychiatric treatment if you knew that a stranger, possibly seeking to damage your livelihood, would one day pour through your personal records? The decision to sign a release must be very carefully made. Second, never submit to drug testing at an interview. The taking of one’s body fluids is a similar invasion of privacy, and body fluids can be tested in a variety of ways. Third, all communications with an investigator must be through a lawyer or with a lawyer present. Only the presence of a lawyer at an interview can ensure that the interview is accurately reported on later, the investigator will not act improperly, and can ensure that the licensee can decline to answer questions or to leave when he or she wants without pressure or intimidation. Fourth, we counsel against signed statements – investigators sometimes prepare statements for a quick signature by the licensee, which may contain in them very harmful admissions.
Having cautioned clients about the many possible traps in a board field investigation, we still counsel that the client should be cooperative, Examining the difference between a police investigation and a licensing agency investigation is instructive to explain why. The difference between an investigation by a board investigator concerning possible board discipline and a police investigator in a criminal investigation is that a state licensing agency has much broader powers to punish, using a much lower standard of proof, than the police investigator can through the D.A. and the courts. Therefore, while a citizen who exercises his rights against self incrimination may shield himself from prosecution successfully, a licensee will rarely if ever deter a licensing agency from seeking and imposing discipline through non-cooperation if the licensing agency believes its licensee is incompetent, impaired or has committed serious misconduct. Licensing agency investigations arise from concerns for public safety. Therefore, the licensee should look at the investigation as an opportunity to reassure the licensing agency that the licensee is competent and safe to practice. Finally, above all, be honest. Betraying the trust of the licensing agency can be seen as worse than the conduct that triggered the investigation in the first place.