Monday, September 20, 2010
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.
Sunday, September 19, 2010
DEFENDING PROFESSIONAL and OCCUPATIONAL STATE LICENSES: State-wide Practice of California Licensing Agencies Doesn't Pass the Smell Test
A unique drama plays out almost daily in the niche practice of licensing law. That field typically consists of appealing from a denial of a State professional or occupational license or defending against a license revocation or other discipline against a license by State licensing authorities. The most critical initial issue for the potential client usually is not whom he or she will select as legal counsel, but whether the at-risk client should spend any money at all to obtain or defend an occupational license.
There are some specific and particular reasons why licensing practice is so burdened by this issue. Typically, by the time the licensing attorney first meets the potential client, the client has engaged in multiple substantial interactions with representatives of the State’s licensing department or agency. And in all of these previous encounters, the State’s representative will have repeatedly suggested to the applicant or licensee that they “can” utilize an attorney — or not. Even the forms by which the licensing authorities give official notice of the procedural rights of the licensee or applicant make clear that representation by an attorney is strictly optional. Clients consistently report that State licensing authorities confide in preliminary or incidental remarks that “most” persons with licensing disputes do not bother to obtain legal representation.
The chronic and purposeful efforts of the licensing agencies to discourage licensees and applicants from retaining counsel is an unseemly practice which, while perhaps not per se illegal, discredits and distorts the agencies’ reason for being. Why has the State adopted — in consistent practice if not by overt written standards — any interest in or preference for the lack of legal representation for regular lay-persons’ participation in adversarial processes? These adversarial processes are formal evidentiary proceedings in which applicants’ and licensees’ abilities to earn their livings hang in the balance. How is such practice consistent with the licensing agencies’ stated and publicly-funded mission of protecting the public from incompetence and dishonesty in these regulated services?
The State’s dubious “advice” is provided to a vast range of licensees and license applicants working (or intending to work) in more than 800 occupations. Some of these occupational groups, such as barbers, vehicle salespersons, and nail technicians, are comprised of relatively unschooled and unsophisticated individuals. Others, such as accountants, veterinarians, doctors, and dentists, are typically highly educated, sophisticated and well-compensated. But almost none of them understand the hearsay rule, or its unique role in administrative proceedings. And almost all of them erroneously believe that the Fifth Amendment protects them from self-incrimination in the licensing hearing. Almost none of them knows that the result of the adversarial hearing is a proposed decision — a decision that the licensing agency is free to reject if the agency disagrees with the Administrative Law Judge’s view of the evidence and the applicable law. Most of them think that their hearing will be decided on the basis of the equities of their situation rather than the mechanical application of statutes and agency rules. And, not surprisingly, these misdirected unrepresented person’s cases typically result in a proposed decision upholding the agency’s decision to deny or discipline the license. By overwhelming raw numbers and percentages, the unrepresented lose the evidentiary battle for a favorable proposed decision.
The ugly truth is that not one of the licensees and applicants subjected to the State’s assurances about the lack of need for a lawyer is benefitted or served by the State’s unspoken encouragement to represent themselves in the fair hearing process.
If the State has the requisite evidence to serve the public interest by denying an occupational license application, or revoking an existing license, how is that legitimate and vital State purpose furthered by attempting to cause the affected applicant or licensee to forego the advice and guidance of counsel?
Perhaps the invidious quality of the State licensing agencies’ unwritten but chronic practice to encourage unrepresented appearances in the administrative process would be less offensive if these practiced inducements to forego the aid of counsel were not undeniably and overwhelmingly successful. Day after day and year after year, the daily calendars at every Office of Administrative Hearings location show that more than 80% of the license applicants and licensees whose livelihoods hang in the balance are unrepresented. They wouldn’t have gone without a lawyer in defense of a misdemeanor for which they could reasonably expect a fine of about a thousand dollars. Concerns about the burdens of a permanent criminal record would have disposed of any ambivalence. But, with the State agencies’ not-so-subtle prodding, hundreds of people a year go without legal representation in a formal, reported, adversarial proceeding where the opposing interests are represented by Deputy Attorneys General, a proceeding in which expensive educations and years of internships and employment experience may be made null by barring the occupational door, a proceeding where individuals’ means of earning a living — perhaps the only such means available or practical — will be declared off-limits.
Why does the State of California engage in this effort to stack the deck against its occupational license applicants and licensees? Isn't it time – past time – for the consumer protection arm of the State government to abstain from this manipulative and gratuitous practice?
Monday, September 6, 2010
(NOTE: License Advocates Law Group practices administrative law throughout the State of California and this BLOG deals mainly with issues pertaining to occupational licensees in California, a point we are careful to make plain in our posts. This post, however, is not state-specific. The information set forth here is applicable to professional and occupational licensees in most U.S. jurisdictions.)
After decades of practice in the field of administrative law, the partners of License Advocates Law Group have seen, time after time, that every licensing defense case can be strengthened by some very straightforward and do-able actions by the licensee even after denial of a license or after disciplinary charges have been brought by the State. Over the next few weeks, this blog will identify, explain and discuss the Top Ten Essential Tasks for Disputing a License Denial or Defending Disciplinary Charges Against the Licensee.
The first installment of this series, Task No. 1, is available in the August archive of this blog under the title LICENSEES AT RISK FOR REVOCATION/SUSPENSION: IMPORTANT TASKS T O DO NOW THAT WILL STRENGTHEN YOUR DEFENSE OF YOUR LICENSE. Task No. 2, is here. This post discusses Task No. 3.
No. 3: List, identify, collect, and preserve all potential evidence.
Like Task No. 2 in which the objective is to identify and preserve all potential testimony relevant to the licensing case, the purpose of Task No. 3 is to ensure the availability of all potential physical evidence at the administrative hearing so that the applicant or licensee can make the best possible case.
First, an important warning about physical evidence at the hearing before the Administrative Law Judge: Everything tangible and portable falls in the category of physical evidence. When the material is tangible but not portable, it is likely that a photograph or record of the item will be admissible as evidence in lieu of the thing itself. But, copies and replicas and photos are not always admissible, and are never as persuasive as originals, so considerable thought as to the form in which an item will be introduced is critical. This determination is attorney's work – a person unfamiliar with the Calif Evidence Code and Administrative Procedures Act is not likely to effectively make these predictive judgments.
The most common kinds of physical evidence –described and numbered or lettered as “exhibits” at the hearing whether the exhibit is accepted into evidence or not – are documents and records of every conceivable kind: time-sheets, receipts, invoices, logs, contracts, reports, journal entries,bank statements, cancelled checks, tax returns. Also photographs, maps, diagrams, charts, spread sheets. There is no limit to the kinds of documents and records that may qualify as persuasive evidence at the hearing. Even videos, tape recordings, digital answering machine logs, and screen-shots of computerized matter. The scope of potential relevant evidence is so vast, that it can be a subjective and elusive assignment to gather all of “it.” A methodical narrative process is usually the most reliable way to be sure of a thorough and competent result.
Start by deciding on a written or verbal narrative. You need pencil and paper for the first; a willing spouse with good critical listening and thinking skills for the second. Now, either in writing or in an oral presentation, start at the very beginning to narrate your knowledge of the circumstances pertaining to your present licensing problem. A common beginning might be:
1. I was first licensed as a ________ in the year_________.
2. My license history was perfect until __________ when because of ____the licensing agency imposed ________________.
3. My license has been in good standing ever since then, until a year ago when _______ .
After each of the above sentences, you (if writing) or your partner in this exercise should stop and say: “what can you provide to prove that statement?” And you start a list of all of the tangible things that could be used as proof of each of your statements.
In the example above, at the least you would list any records or documents establishing (1) the date and nature of your initial licensing; (2) the date and nature of any previous licensing investigations or discipline; and (3) any records establishing the fact of all events you are offering as relevant to explain any previous discipline or investigations, such as medical records or divorce records. These are the items that will confirm the facts as you have related them.
Work your way, in very small increments, through every single step of your explanatory narrative: what happened, who was involved, who saw or heard or knows about it, what were the results of each action, who said what, who inspected what on what dates, who interviewed you and where and when and what did you say. Skip nothing; when in doubt, include. And at each tiny step forward in your narrative, stop and ask that question --- then add to your running list a description of any tangible record or item that might confirm what you contend. It doesn't matter if the item is not in your possession or control --just note on your potential exhibit list where you think it is.
If any of your items of proof are not portable – a job site, for example, or the premises where some event occurred -- if there is public access or visibility, go take a good photograph. Include in each photo a ruler or an installed and fixed landmark or other “size reference” for all items or objects that are not self-explanatory. Remember that screwdrivers and holes in the ground―and most everything else in the world―don’t show their size in a photo without something to compare and refer to. Have hard copies of all photos printed and also maintain safe electronic storage. Label in detail each photo, both hard copies and computer-stored images: what each shows, who took it, the date it was taken, the present location of any items shown in each photo, and a description of any changes – and the reasons for any changes -- in what is shown in the photo from your recollection, such as trees removed, parking structures constructed, and so forth.
When you have completed “converting” the long version of your statement of what happened into a list of items that collectively demonstrate the accuracy of your statement, you have your List of Potential Exhibits.
This essential task will take considerable time if the facts and circumstances underlying the licensing dispute is complicated or involves multiple events or is based on a long-term investigation by the licensing agency. But it is a critical phase of the hearing preparation process, and must be done -- by your attorney if not by you. That can be expensive, and your attorney knows less about the facts of what has gone before – what has led to the point of the disciplinary case – than you know. A firm commitment to prevailing against the State licensing agency's intention to revoke or suspend your license requires a full and effective effort at producing a reliable and expansive List of Potential Exhibits.
Tune in in a few days for No. 4 of the Top Ten Essential Tasks for Disputing a License Denial or Defending Against Disciplinary Charges Against the Licensee.
For more information about denials of California licenses, or about discipline against a California professional or occupational license, certificate, or credential, visit the Web-site of License Advocates Law Group at http://www.LicenseAdvocates.com or contact any of the partners at License Advocates Law Group at (888)-406-4020. License Advocates Law Group is the only Southern California-based law firm that limits its practice exclusively to the representation of California licensees and license applicants. License Advocates Law Group is also the only license defense law firm with a former California Administrative Law Judge on staff.