Wednesday, March 30, 2011

Can the Result of An Administrative Hearing Ever be Reviewed or Changed?


The short answer to the question posed in the title of this post is “Yes!” But, as described below,  that answer can cut both for and against the California licensee or license applicant who is not represented by skilled licensing counsel.

An exhaustive discussion of the law of post-hearing procedures in  administrative law would require a treatise, possibly multi-volume, and is obviously beyond what can be accomplished in these few paragraphs. But the following information provides an overview of what to expect in the typical professional or occupational license hearing in California after the evidence has been put before an Administrative Law Judge in a “fair” hearing procedure.

The Proposed Decision. Contested hearings are presided over by a hearing officer, of course. But the hearing officer who presides at the hearing may or may not be the ultimate decision-maker in the case. In California, disputes about State professional and occupational licenses   are heard by an Administrative Law Judge, or ALJ, employed by the State of California, Department of General Services, Office of Administrative Hearings.

In almost all occupational licensing cases, the ALJ  is not  the ultimate decision-maker. (An important exception is a teacher credentialing case, which is heard by a three-person Commission, with an ALJ presiding; it issues final decisions.) In most kinds of cases, the ALJ hears the evidence, makes findings of fact and conclusions of law based on the evidence he or she has heard, and then renders a proposed decision in writing that relies on and incorporates those findings and conclusions. The licensing agency itself—often the agency’s top officer or its governing board—is ordinarily the ultimate decision-maker.

The law provides that within 30 days of the conclusion of the hearing, the ALJ will prepare a proposed decision in writing and submit it to the decision-maker. It is very common for that 30-day deadline to be extended. Within 30 days of the receipt of the proposed decision by the licensing agency, the agency must file a copy as a public record and serve a copy on all parties. You can click here to see what one of these proposed decisions looks like.

Agency Review of an ALJ’s Proposed Decision.  Although contested administrative hearings are ordinarily open to the public, agency reviews of proposed decisions may be, and usually are, conducted in private. In reviewing an ALJ’s proposed decision, the agency may take one of five possible actions: (1) adopt the proposed decision in its entirety, (2) reduce the proposed penalty and adopt the remainder of the proposed decision, (3) make technical or other minor changes in the proposed decision and adopt it as modified, (4) reject the proposed decision and refer the case back to the ALJ to take additional evidence and prepare a new proposed judgment, or (5) reject the proposed decision and decide the case itself after reading the record of the evidence taken at the hearing. In this last option, the licensing agency may or may not allow or ask for additional evidence and may allow the parties to submit additional written or oral argument before the agency makes its decision. If the licensing agency asks for or allows additional evidence or oral argument, those matters will occur in an open public proceeding.

Once 100 days have passed from the delivery of the proposed decision to the agency, and the agency has failed during that time to notify the parties that the proposed decision is not adopted, the proposed decision is adopted in its entirety by operation of law – that is, without any further action by the parties.

In the great majority of cases, the agency adopts the proposed decision in its entirety. With certain exceptions, the decision is effective 30 days after the agency mails or delivers it to the licensee.

Rehearing, Reconsideration, Stay and Administrative Appeal.  Most agencies allow a licensee to seek a rehearing or reconsideration of a decision, but these requests are seldom granted. Some agencies lack the power to rehear or reconsider their decisions. It is also possible to obtain a delay—called a “stay”—of the effective date of a license revocation or suspension. Some agencies are empowered by statute to allow administrative appeals of decisions to various bodies within the agency itself.

Even where a licensing agency is unlikely to grant a request for rehearing or reconsideration, it may be important for the licensee or license applicant to make a formal, well-supported request for such action. By such request, important legal issues that could cause the case to be reversed by subsequent review in Superior Court can be properly framed and supported. It also happens occasionally that, by identifying a challenging legal issue in a request for rehearing or reconsideration, the licensing agency may decide that it does not want to take a risk that the matter will be appealed to the Superior Court, where the agency may suffer a result it does not want, one that could turn out to be applicable to all of its cases. So, sometimes, a strong request for reconsideration or rehearing will result in a successful settlement agreement of an individual case, even though the fair hearing on the evidence has already occurred.

Judicial Review of the Ultimate Decision.  At some point, all efforts to rehear, reconsider, stay or otherwise administratively appeal the decision have been exhausted, and the decision is effective. The effective date of the decision is important, because that date starts the running of the time within which the licensee, license applicant, or other responding party may file a petition in the Superior Court seeking to overturn the agency’s decision. Whether or not to challenge the agency’s decision through this formal court process is a significant decision that must be carefully weighed and discussed by the licensee with his or her attorney.

A challenge of the licensing agency's decision in Superior Court will be heard in the department of the court known as “Writs and Receivers.” Writs and Receivers does not ordinarily take additional evidence — the judge in that department reviews the record of the evidence admitted at  the hearing before the ALJ — to determine if there are errors of law or an insufficient evidentiary basis for the agency’s decision. Typically, if the court decides that the agency’s decision is wrong, based on the record of the evidentiary hearing, the court will not order a different result. Instead the court will “remand” — or send the matter back — to the licensing agency with instructions to correct its error. Sometimes complying with that instruction requires a new hearing or a “re-opening” of the earlier hearing to allow for the taking of additional evidence. More often, complying with a remand by the Superior Court results in the agency simply modifying or reversing its initial decision.

Appeals to the Writs and Receivers Department of Superior Court are an “expedited” process. There is sometimes a substantial delay necessary, because the transcript of the evidentiary hearing must be prepared and approved. But once the transcript is in hand, the case record is filed with the court and a date is set for the court to hear argument about the case — usually about eight weeks out from the date of filing. 

The Petition for Writ procedure is not expensive as legal matters go. There are no depositions, interrogatories or other time-consuming and expensive discovery processes. There is no gathering of new or additional evidence, no taking of testimony. Even before the matter is called on the day of the Superior Court hearing, the court will have reviewed the transcript and the exhibits admitted into evidence at the prior hearing and usually will have read and considered the parties’ written arguments. The court will then allow the attorneys to argue briefly, and then the court will rule, either orally from the bench or within a few days in a written Order. The court hearing takes less than an hour in most cases. Appeals can be taken from the Superior Court’s final order.

Reinstatement of a Suspended or Revoked License. After a period of time — usually one year, but there are exceptions — has passed from a decision revoking or suspending a license, or from an order placing probationary conditions on a license, the licensee ordinarily may petition the decision-making agency for reinstatement of the license or for relief from any probationary conditions. The burden that the licensee faces is severe in these situations: he or she will need to establish, by clear and convincing proof, that the relief sought is merited. This isn’t easy, but a convincing showing of rehabilitation, present good character, good conduct, subsequent education, training and services, a remorseful state of mind and, if appropriate, restitution to any people harmed by the licensee’s past conduct all can help to convince the agency to grant the petition. Any agency decision denying one of these petitions can be reviewed in the Superior Court, just as the original decision was.

Many California licensees and license applicants choose to represent themselves at the administrative hearing before the ALJ. One of the reasons that this is always a bad idea is that the licensee or applicant lacks the training to recognize and “tee up” the legal issues that can influence the licensing agency’s decision after the hearing decision by the ALJ. There is nothing more frustrating in licensing law than for the licensee or applicant to obtain a favorable decision from the ALJ following the fair hearing, only to see the licensing agency make a different decision against the licensee. Competent experienced licensing counsel know how to limit the potential for this disappointing result, and they know how to put the agency’s feet to the fire in Superior Court when it happens. If your earning power is or can be significantly strengthened by a California occupational license, then retaining qualified licensing counsel is a cost-effective way to reduce the chance of losing the licensing decision after winning the hearing.

Monday, March 7, 2011

License Denial or Discipline? No. 5 of the Top Ten Essential Tasks to Do Now: Prepare Your Rehabilitation Evidence


This post discusses Task No. 5 of the “Top Ten Essential Tasks for Appealing a License Denial or Defending Against License Discipline: Prepare Your Rehabilitation Evidence.”

After decades of practice in the field of California administrative law, the partners of License Advocates Law Group LLP have seen, time after time, that every occupational and professional licensing case can be strengthened by some very straightforward actions by the licensee or denied applicant even after the initial denial of a license or after disciplinary charges have been brought by the State. Over the next weeks, this blog will continue to identify, explain and discuss the “Top Ten Essential Tasks for Appealing a License Denial or Defending Against License Discipline.”

Prior installments of the “Top 10 Essential Tasks” are available in the archive of our blog. The first all-important installment of this series, Task No. 1, is available in the August Archive here. Task No. 2, also in the August Archive, is here. Task No. 3 is set forth in the September Archive here. Task No. 4, “Preparing Your Character Evidence” is found here.

In the years of administrative law practice by the attorneys of License Advocates Law Group LLP we have seen that most cases of license denial or discipline are based on a record of criminal acts underlying the denial or proposal for discipline. In many cases, the offense on the record is very old (a recent license denial based on 39-year old felony conviction) or it was acquired as a juvenile. In other instances, the conviction is based on almost ludicrous facts (a burglary conviction based on entry into one’s own work-space after hours for purposes of using office equipment to make a single photocopy of personal material). But all cases of license denial or discipline rest ultimately on the ability of the licensee or license applicant to make a compelling showing at or before an evidentiary hearing that one is fit and worthy of the privilege of doing licensed work.

Notwithstanding the many reasons that a license denial or discipline of a license can seem an overbearing and oppressive exercise of State regulatory powers, under California law State licensing agencies are entitled to deny any application for license, or to revoke or otherwise discipline a license, on the grounds of a criminal conviction if the acts underlying the conviction are determined by the State to be acts that are inconsistent with the functions, qualifications and duties of the licensed occupation. Even where there has been no conviction, or no prosecution, the State may rely on evidence of improper acts to deny or discipline an occupational or professional license. By obtaining a court order that improves or recasts the criminal history, or by resolving pending matters pertinent to financial and legal obligations, these matters can be removed from the consideration and evaluation of licensing officials and no longer available as a basis for unfavorable licensing decisions. For these reasons, clearing up prior criminal history and other pending lapsed financial and legal obligations is a critical task during the months preceding the license hearing.

Clearing or improving the record of prior criminal convictions, where possible, is an important pre-requisite to making the strongest and most effective showing at the license hearing. But it is also an important precursor to successful negotiations with California licensing agencies. Even where available procedures result in only partial revisions of the conviction record, it is important that the licensee or license applicant demonstrate seriousness of purpose by pursuing all available legal measures. Where a record-clearing process is available, and the eligible license applicant or licensee has not petitioned the court for the benefit, the licensing agency often interprets that failure as one of indifference to the outcome of the licensing matter.

Significant records-cleaning procedures will usually require the services of an attorney. Most criminal defense attorneys are experienced in these legal processes, and all specialized licensing attorneys can and should include these measures as part of the agreement for services attendant to appealing a denial of a license application or defending against license discipline. The focus of this discussion, then, is not how to do these things yourself, without an attorney, but what processes you can expect your attorney to evaluate for applicability and to undertake where you are eligible.
First, let go of an old myth. It is not true that only felony convictions matter in obtaining or preserving a California professional or occupational license. Not only are misdemeanors grounds for denial or discipline by State licensing agencies, even infractions can be a basis for State action against a license. In fact, even where there has been no criminal prosecution or conviction, State licensing agencies are allowed by California law to consider acts — acts not pertaining in the slightest to work under the auspices of the license — that are inconsistent with the functions, duties and qualifications of a licensee.

A recent example from a case defended by License Advocates Law Group LLP may be instructive. Our client was a California-licensed architect with an unblemished criminal history and a solid record of outstanding work in the profession and in his employment of over thirty years. When he sold his personal residence, the buyer decided within a few days of taking possession of the home that our client had failed to disclose a defect in the heating-cooling system. The buyer made a complaint to the State licensing agency, alleging that our client’s failure to disclose the defect was dishonest and inconsistent with the requirements of the laws pertaining to real estate transactions. The architect’s licensing agency was poised to commence a formal disciplinary investigation, potentially leading to revocation or suspension of our client’s license, even though the acts in question had nothing to do with our client’s performance in his licensed work, and even though there was no criminal prosecution or conviction arising from the conduct complained of. (The case was amicably resolved before any disciplinary investigation ensued.)

Criminal prosecutions and records of conviction are the primary means by which State licensing agencies learn of acts that may be considered unacceptable — improper — for licensees. So applicants and licensees need to utilize all that the law allows in order to
maintain “clean” records of criminal history.

One of the many advantages in the extended period of time between asking for and obtaining a fair hearing to appeal a license denial or defend against license discipline, is that those months are usually sufficient to initiate and complete the process of obtaining formal court orders that revise a problematic criminal conviction record. Court-ordered revision of a criminal history can be determinative in establishing rehabilitation after conviction, because the licensing agency is ordinarily bound by the terms of the court’s order. So, for example, if a Court issues a Certificate of Rehabilitation, the licensing agency cannot use the conviction to which the Certificate applies in denying or disciplining a license. The single exception to this principle is expungement under Penal Code Sections 1203 and 1203.4. By the express terms of those statutes, State licensing agencies are allowed to consider “expunged” convictions and the circumstances underlying those convictions in determining the fitness of licensees and license applicants.

Most of the legal processes for improving criminal records involve petitioning the Superior Court, or the court in which the applicant or licensee was convicted, for an Order. Court orders are potentially available to strengthen licensing applications and defenses in several different and sometimes overlapping respects.

1.    Dismissal of prior misdemeanor convictions and an early termination of current probation.
2.    Reduction of a felony conviction to a misdemeanor, where the charge of conviction is an alternative felony-misdemeanor.
3.    Sealing of prior juvenile criminal history.
4.    Issuance of a Certificate of Rehabilitation for any felony conviction more than five years old that cannot be reduced to a misdemeanor.

Other record-cleaning measures do not require action by a court:

5.    Resolve outstanding or lapsed financial obligations.
6.    Clear up old warrants, even traffic, and unpaid fines, penalty assessments, and other outstanding criminal matters.
7.    Complete and satisfy all remaining terms and conditions of any probation or parole, including orders for restitution, and obtain a written declaration of completion from monitoring officials.
8.    Satisfy or reach a formal compromise of all outstanding civil judgments (including any relating to spousal support, child support or asset distribution attendant to marital dissolution).
9.    Resolve pending cases for civil damages and administrative complaints based on allegations of misconduct.

For some applicants and licensees, the records-cleaning processes in California law will be unavailing. For example, a juvenile conviction for a violent crime involving the use of a firearm is generally not “sealable” under California law. But other remedies may apply to the same factual situation. For example, if an unsealable juvenile conviction resulted in a sentence to the custody of the State Department of Corrections, the offender may be eligible for a Certificate of Rehabilitation. The multiplicity of potential record-cleaning measures, and their patchwork of eligibility requirements, virtually demand the skill and experience of an attorney to effectively mine the possibilities for the measure that can best meet the needs of the applicant or licensee.

Of course, the need to first clean up the criminal record can add to the costs and time of appealing a denial of license or defending against license discipline. Still, the math will always demonstrate that the costs of obtaining or preserving an occupational license are always offset in a relatively short period of time by the enhanced earning power under the license, which can continue indefinitely. For these reasons, then, cleaning up any prior criminal history, or discernible history of civil claims or lapsed financial obligations, must be considered a Critical Task in defending or obtaining a professional or occupational license in California and should be accomplished before the matter is submitted to an Administrative Law Judge.


Christine C. McCall, License Advocates Law Group LLP   

Contact the author at

Sunday, January 23, 2011

License Denial or Discipline? No. 4 of the Top Ten Essential Tasks to Do Now: Prepare Your Character Evidence

This post discusses Task No. 4 of the Top Ten Essential Tasks: Prepare Your Character Evidence.
After decades of practice in the field of administrative law, the partners of License Advocates Law Group LLP have seen, time after time, that every occupational and professional licensing case can be strengthened by some very straightforward actions by the licensee or applicant even after the initial denial of a license or after disciplinary charges have been brought by the State. Over the next weeks, this blog will identify, explain and discuss the Top Ten Essential Tasks for Appealing a License Denial or Defending Disciplinary Charges Against the Licensee.
Prior installments of The Top 10 Essential Tasks for license applicants and licensees facing discipline are available in the archive of our blog. The first all-important installment of this series, Task No. 1, is available in the August Archive here. Task No. 2, also in the August Archive, is here. Task No. 3 is set forth in the September Archive here.
Most licensees and license applicants who undertake a challenge of the denial of a license, or initiate a defense against a licensing agency’s notice of intent to revoke an existing license, have an intuitive sense that their part of the license-dispute process involves making a persuasive showing of good character, competence, and integrity. But what most don’t realize is that the laws of the State of California specify exactly what kind of evidence is relevant and material for this purpose. Even more important and less understood is the fact that California law requires that the State licensing agency give full consideration to this evidence. This is a vitally important right, one that can have a powerful effect on the outcome of the administrative law proceeding that determines the result of a licensing case.
In a typical criminal trial with a jury, the lawyer for the accused might offer into evidence character references and biographical information that is intended to cause the judge and jury to see the defendant as a “regular” person, one just like them but for some difficult circumstances. But the advocate in that situation is, necessarily, guessing and using his or her own value system to predict the kind of information that may be persuasive for his or her purpose.
The task in administrative law is much more straight-forward, and the results are more predictable because the law spells out exactly what evidence is relevant and persuasive on character, fitness and “moral” issues, and, critically, compels the licensing agency and the administrative law judge to give weight to that evidence. So, for example, if the licensee or license applicant offers into evidence admissible and credible character references from half a dozen persons, and if the licensing agency has no competing or rebutting evidence on the subject of the licensee’s or applicant’s character to overcome that evidence of good character, then the fact of good character is established by operation of law and that evidence of good character must be a factor in the ultimate decision.
Skilled licensing attorneys can make compelling and substantial showings of their clients’ present good character with even a modest quantum of affirmative evidence.  So it is essential, well in advance of the administrative hearing, to identify, collect, organize, and prepare for evidentiary presentation the mitigation and rehabilitation evidence that will be introduced to support the licensee or license applicant at the hearing. Much of this work can and should be done by the client — the licensee or license applicant — not only to reduce the costs for attorney time, but because the affected person is closest to the ground in these matters — has a better grasp of what may be available and useful than any “outsider” could possibly bring to bear — and will inevitably produce a stronger and broader package.
The Task begins with identifying the kinds of evidence that should be collected for the mitigation/rehabilitation evidence package. Every licensing agency in California, as required by law, has adopted written evidentiary standards for mitigation and rehabilitation. Most of them are operationally and functionally identical, and almost all of them are found in Title 16 of the California Code of Regulations (formerly the California Administrative Code). Many of the agencies’ mitigation and rehabilitation criteria are also set forth in the Business & Professions Code. (See, as examples: Department of Real Estate at CCR, title 10, section 2911; Department of Motor Vehicles at CCR, title 13, section 440.04.)
All of the State agencies’ criteria for rehabilitation include (1) the nature and severity of the act(s) or crime(s) on which the denial or proposed discipline is based (and whether the acts involved violence or a threat of violence to others); (2) circumstances of the crime or act that suggest that repetition is unlikely; (3) evidence of any misconduct committed subsequent to the act for which discipline or license denial is at issue; (4) the applicant’s or licensee’s total criminal record; (5) activities since the crime or act, such as participation in therapy or education, that may indicate changed behavior; (6) the amount of time that has passed since the act(s) or crime(s) at issue; (7) the extent to which the applicant or licensee has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed for the offense on which the license denial or discipline is based; (8) evidence of honesty and truthfulness as revealed in the application for license and interviews during the licensing agency's investigation; and (9) character references.
All of these factors, and additional similar factors not set out here, are sufficiently elastic and comprehensive as to enable all credible license applicants and licensees a meaningful opportunity to make a strong and wide-ranging showing of rehabilitation and current good character. Some of these factors involve formal legal process to secure critical orders; those measures will be discussed and explained in the next post, Task No. 5 of the Top Ten Essential Tasks: Prepare Your Rehabilitation Evidence. But where there is not sufficient or satisfactory evidence of good character, there is ample time, in between the date of demand for hearing and the time when that hearing will occur, to build compelling and persuasive character evidence and to materially improve the evidence to be introduced at the hearing before the administrative law judge. 
So, in those critical months before the hearing, if the evidence of good character and fitness for licensing is lacking, immediately implement these straightforward measures of self-help:
1.      Find a job. Keep the job. Do well at the job, particularly with respect to attendance, and ask the supervisor for a brief written attestation to your attendance, attitude, and quality of work.
2.      Renew or improve family connections. Get current on child support and child visitation.
3.      Retire or reduce overdue debts of any significance.
4.      Complete any and all remaining terms of probation or parole, including restitution payments.
5.      Join a church or synagogue; join the choir; attend and participate in activities beyond formal weekly services.
6.      Get counseling; stay in counseling; work the program. Ask the counselor for a brief written attestation to attendance and participation. Note: if there is any hint of drug or alcohol abuse in the facts on which the license was denied or is subject to discipline, participation in a formal treatment program (not necessarily in-patient) is a necessity. So is completion of the program as measured by the standards of the program. Make a careful choice of program; opting in and out of different programs is counter-productive evidence of rehabilitation.
7.      Pursue additional education or professional or vocational training. Astute choices may secure credit that will later satisfy continuing education requirements for the license. But in all events, take a course or even two. In-person counts much more heavily than on-line course-work.
8.      Break ties with, and stay away from, former associates with criminal histories or drug or alcohol connections.
9.      Ask for letters of personal knowledge pertaining to character and reputation for integrity, honesty and truthfulness from ALL friends and relatives and from any present or former employers, co-workers, neighbors, customers or clients, pastors or spiritual counselors, psychotherapists, probation and parole officers — anyone who has a basis for personal knowledge. The absence of any such letters is a conspicuous omission from the necessary and expected evidence at the administrative hearing. Conversely, there cannot be too much evidence of personal attestations of good character. Each letter need be no more than a paragraph or two — a page at most; each one will count heavily. It can be hard to summon one’s pride and ask for this kind of assistance. Do it anyway. 
10.   Pick at least two ways to be involved in a giving and contributive way with the larger community. Choose from any and all of the universe of good deeds. Volunteer at shelters (homeless, animal, domestic violence, children); coach a kids’ sports team; walk for a charity’s fund-raising effort. The community's needs for charitable and civic contributions are, sadly, endless. And no matter how busy, tired, broke, depressed, pre-occupied, stressed-out or otherwise needy the applicant or licensee feels at this time, there is no getting around the fact that charitable and civic activities count highly in the assessment of character by the licensing agency and by the administrative law judge. A serious challenge to the State’s objections to the applicant or licensee will include a showing of active and enthusiastic participation in two charitable or civic activities, evidenced by a short written attestation from the local coordinator of each.
Critical Task No. 4, Prepare Your Character Evidence, is often an outcome-determinative step in the license process. Compiling such evidence requires perseverance, dedication, imagination, and the affection and support of others. It can be expensive, burdensome, time-consuming, and emotionally uncomfortable. It is up to the denied applicant or the licensee at risk of losing the license to determine whether the occupational or professional license will be worth the effort. But if the applicant or licensee is going to go as far in the process as to proceed to an evidentiary hearing, if there is a determination to put the State of California to its proof in its initial decision to rule out licensed work, then it only makes sense to go the whole distance.  Make good on the time and effort and money already invested in training and qualifications. For those who are in it to win it, the measures in Critical Task No. 4, Prepare Your Character Evidence, are essential.
      

Contact the author at

Monday, October 11, 2010

The Blueprint for a Successful Licensing Law Matter: Does Your Attorney Follow It?

(We interrupt this series on the Top Ten Essential Tasks To Do Now, just briefly, in order to post this urgent summary discussion on an issue that is always a challenge: how to choose the right administrative law attorney for a license denial or license discipline case.)

When it comes to litigation and trials work, there are many sources of good information for the person who needs to hire an attorney. After all, trials are public, and many people have seen good trial attorneys in action. Word spreads and a reputation begins to build. With not too much effort, that reputation can be accessed through the Internet, your circle of friends and their friends and contacts, newspaper stories and, sometimes, official court reports of the final case result.

The person or business that needs to hire an attorney to handle a matter of administrative law has a more difficult task. Administrative hearings are the “trials” of individual cases about licensing, permits, taxes, fees, and other matters involving government regulation and administration. Administrative hearings ordinarily attract no public attention or courtroom observers. Because there are no juries, there is little of the “grand-standing” that high-profile trial lawyers can become known for. Few members of the public, including the potential client’s widest network of connections, will know of a sufficiently skilled and experienced administrative lawyer to recommend.

And yet, the stakes of administrative law can be shockingly high — far higher than what is generally at risk in a misdemeanor criminal trial or a routine business dispute that ripens into civil litigation. For example, licensing law is one important specialty in administrative law that is often ultra high-stakes.

Licensing law is the specialized legal practice that secures and protects professional and occupational state licenses, credentials and certificates. License lawyers appeal denials of license applications, teaching credentials and other occupational “permissions” by state regulatory agencies. License lawyers also defend against state actions to revoke, suspend or restrict existing licenses. The critical degree of risk in a licensing case is obvious: the licensee has devoted years to an expensive and highly specialized educational program. He or she has studied for months and taken a difficult and expensive examination. Then, a number of years of apprenticing and climbing the steep learning curve have been invested. For the licensee suddenly faced with revocation — a teacher, general contractor, real estate salesperson, or Registered Nurse, for example – the loss of the license is the loss of their job and the loss of their means of making a living, possibly the only such means for which the individual licensee is qualified or employable. So, too, for the individual business owner — an auto repair shop, pest control service, or insurance brokerage, for example — the loss of the license means shutting down the business, forfeiting all present and anticipated income from it, all while still obligated for many on-going debts and expenses incurred for the purpose of doing business.

There are few civil lawsuits where one’s entire income and ability to make a living hang in the balance. By this standard, then, Licensing Law is the ultimate high-stakes territory. Yet, still, it is practiced out of the public eye and few who find that they need “the best” licensing legal counsel have any idea how to find even a competent licensing lawyer.

This article is offered to meet that need.

Set forth here is a Blueprint for Success in licensing matters. It is applicable as well to almost every matter of general administrative law. The criteria set forth here are task-oriented — meaning that this is a Blueprint for the services a skilled licensing attorney should perform. It is not an inventory of necessary personal characteristics or qualities. A fine analytical mind, extensive specific similar experience, diligent work habits, impeccable honesty, and strong communication skills are all critical qualities, to be sure. But there is no need to write a Blueprint for those attributes — everyone can be held to know that those qualities are essential. Instead, this Blueprint is a check-list for what you need your licensing lawyer to do in your case.

Of course, every case is different by its facts and circumstances, and every case presents issues that require particular decisions and actions by the lawyer for the licensee or license applicant. But, based on more than 30 years extensive experience, there is in fact an identifiable “Blueprint” for legal services that will always position the client’s case for the best possible result. So, in addition to the special requirements of your unique licensing law problem, this is what your potential licensing attorney needs to be proposing to do in your case:

BLUEPRINT FOR EFFECTIVE DEFENSE OF A LICENSING MATTER

Early, comprehensive and thorough fact-gathering:

Issue formal legal demands compelling the licensing agency to share ALL of the investigation package and ALL of the evidence the agency intends to use against you.

Subpoena all witness statements, photographs, agency records and other material the agency relies on for its allegations or decision against you.

Early and regular intervention to reduce the case:

Immediately intervene with the agency investigator and other agency officials to persuade the licensing agency not to go forward, or to go forward on a less serious set of allegations and proposed penalty.

Negotiate on a regular and on-going basis with agency representatives, including the Attorney General or Department Counsel, and including an Administrative Law Judge sitting as Settlement Officer, to reduce the allegations and the proposed penalty.

Present alternative proposals for license discipline, or case-specific conditions for license issuance.

Professional preparation of your case:

Identify, find and prepare for direct and cross-examination all witnesses supporting your position.

Prepare cross-examination of all witnesses opposing you.

Create diagrams, video, maps, photo-journals, bench-book and other exhibits that support your case.

Prepare, file, and argue legal motions that may limit the agency’s ability under the law to discipline you, or may keep out of evidence material that is unfavorable to you.

Presentation of your case at hearing:

Object to the admissibility of unreliable evidence against you.

Offer into evidence all exhibits that support you.

Examine and cross-examine all witnesses.

Argue the case and submit a thorough post-hearing brief, applying the law to the evidence admitted at the hearing.

Completion of applicable post-hearing processes:

Submit formal written objections to an unfavorable proposed Decision and argue a request for re-consideration of any unfavorable decision.

Appear before the licensing agency board or commission to argue in support of or in opposition to the Proposed Decision.

Preserve your rights to file an expedited writ proceeding challenging in civil court an unfavorable agency decision.

Preserve the integrity, accuracy and completeness of the administrative record in the event that a challenge in court is necessary.

That's it! That’s the Blueprint for skilled representation in a licensing matter. When you go for your free consultation, these are the tasks you need to be listening for when the attorney describes his or her plan for your case. If all of the lawyer's talk is about hearings — or all about negotiations, or all about any other limited slice of the licensing law case — beware and move on. If the proposed Agreement for Services or Retainer Agreement doesn't spell out all of the Blueprint, you need to talk further or talk to other lawyers before you sign and surrender a check.

When your livelihood or business is at stake, you need a lawyer who can do right by you in all aspects of your fight. A licensing dispute in which your professional identity and ability to earn a living are at stake can be the single most significant, expensive and emotionally challenging legal battle you will ever in life go through. Don’t go through it alone; don’t go through it with anyone who is less skilled, less able, or less willing than you need and deserve to protect your right to your occupation.

Monday, September 20, 2010

Teacher Evaluations By “Value-Added Analysis”: The Unfair Impact on Real People

We’ve written once before about “Value Added Analysis”—VAA—a technique for comparing the performance of teachers by measuring the progress that has been made by their students on standardized tests of English and math. The Los Angeles Times has written extensively about VAA recently, and has gone so far as to publish the names of individual teachers who rated high or low in terms of how their students performed over time on standardized tests. Potentially useful as a starting point for counseling teachers, VAA becomes hideously damaging to the lives of teachers when it is used improperly as a disciplinary evaluation tool, or worse, to pillory these dedicated people in the media.

This issue was crystallized for us at License Advocates Law Group LLP in Sandy Banks’ Times article from last week, “Teacher Ponders her rating.” It told of a Los Angeles elementary school teacher who recently retired after 45 years of service, only to be greeted one morning by the Times’ gratuitous exposé branding her as among the “least effective” teachers in the school system, as measured by VAA. That teacher’s living room wall, covered with awards, photos and appreciation letters from now-grown pupils, and the heartfelt speech from one of her 1976 fifth-grade students—now a Ph.D. college professor who took the time to come to the teacher’s retirement dinner to join so many others to publicly thank her long-ago “mentor”—counts for little, if anything, given that thousands of Times readers now believe she is simply among the “least effective” at her chosen profession.

Read Banks’ article. It reflects much more than the problems of one retiree effectively unable to protest how VAA is being used to defame her career. Through this teacher’s story, the article illustrates the issues being faced each day by thousands of teachers throughout big-city public schools. “I remember those classes. I had only five English-speaking students” one year. “I wanted to get [the others] into regular English classes before they went to middle school.” If these students wound up in ESL programs in middle school, they would have little opportunity to take challenging courses later. So the teacher worked with parents until “every one of my students was fluent in English. … That’s what I set out to do.” But the teacher paid a price for her dedication: as her colleagues warned her, prepping her students for the English Language Development Test came at the expense of the California Standards Test, the one on which the VAA technique is based. But to this teacher, the cost was worth it: “I wanted to transition those kids into English. I wanted them to know they could accomplish this, that nothing was off limits to them.”

What struck us most deeply about the story is how precisely the teacher understood the problem with the use of VAA in her case. She had no quarrel with the Times series itself or with the VAA calculations. “I just wish the chart had said ‘least effective in raising test scores.’ That would be fair. I could live with that.” And that’s exactly the point. If the objective of the educational system is to raise standardized test scores, then VAA becomes a useful analysis tool. But if the point of the teaching process is to produce good citizens, critical thinkers and productive members of society, then VAA, and the standardized tests it supports, yield only rather shabby, “quick-and-dirty” approximations of what our schools and our society need.