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.