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.

      

Read more at http://www.LicenseAdvocatesLawGroup.blogspot.com

Contact the author at

info@LicenseAdvocates.com

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. 

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?

LICENSE DENIAL OR DISCIPLINE? NO. 3 of the TOP TEN ESSENTIAL TASKS TO DO NOW

(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.

       

Teacher Evaluations Using “Value-Added Analysis” — Does It Work?

For the past several weeks, the Los Angeles Times has published a series of articles urging the use by Los Angeles school administrators of a teacher evaluation method called “value-added analysis” or “VAA.” VAA is 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.

Most people understand that student performance on these tests can be strongly influenced by the wealth of student families, the extent to which student families choose to interact with the educational process, the quality of school and district administration, and other matters largely outside any teacher’s—or any student’s—control. VAA attempts to adjust for these problems by comparing a classroom’s performance not with other students in the same or other schools, but with its own performance in past years. Any difference between the classroom’s expected and actual performance is then assumed to be due to the teacher’s positive or negative influence. The Times series is urging, and Los Angeles Unified School District administrators are considering, the use of VAA to evaluate teachers, perhaps simply to counsel them, and perhaps even to demote or discharge them, for allegedly “sub-standard performance.” Other school districts around the nation have already done this.

In reaction to the Times articles, many Angelenos, including teachers, teacher unions, administrators, parents and concerned citizens have expressed favorable or unfavorable opinions in letters to the editor, touching on many important issues. One that particularly interested us at License Advocates Law Group, a firm that represents people, including teachers, whose licenses or credentials are being threatened, came from a middle school teacher in Los Angeles. His letter read, in part:

“When somebody can prove that high test scores produce good citizens, critical thinkers and productive members of society, then and only then can we say the teachers who taught those kids were ‘good.’”

We think that sums up the problem with standardized tests in general, and with VAA in particular, pretty well.

VAA simply does not adjust for—in fact, it exacerbates—the basic problem with standardized tests: that the tests select not for the skills and abilities today’s world demands—imagination and creative problem-solving—and not even for the student’s abilities in English and math. Instead, they select for one skill: the ability to perform well on standardized English and math tests. And VAA tells us whether a teacher has advanced or reduced his students’ ability to take those tests. Testing analysts—and employment lawyers—have a word for this issue: “validation.” For a test or employment process to be “validated,” it must in fact select for the precise knowledges, skills and abilities that the employer is seeking. If it doesn’t, the employer can’t use the test or process to discipline the employee.

Almost all “pencil and paper” tests have this problem. Whoever is giving the test usually isn’t looking for the student’s ability to perform well on tests. They want to see if the student has in fact absorbed the thoughts that the teacher has imparted. The written test can, at best, only approximate that objective. And VAA can only tell us that the teacher might have advanced or reduced his students’ ability to take these tests.

We cannot know whether the State of California or any California school district will adopt VAA or any similar analytical tool as a method for disciplining or discharging teachers. But if they do, we here at License Advocates Law Group are ready to help. Our partners have worked on these issues successfully for years, and we know how to protect your credential.


For more information about discipline of California teachers, or about discipline against any California occupational license or credential, visit the Website 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 professional 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.

LICENSE DENIAL OR DISCIPLINE? NO. 2 of the TOP TEN ESSENTIAL TASKS TO DO NOW

(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 TO DO NOW THAT WILL STRENGTHEN YOUR DEFENSE OF YOUR LICENSE. This post discusses Task No. 2.

No. 2. Compile a comprehensive list of potential witnesses. 

If you do this, and do it well, you will save your attorney significant time. That means saving yourself a significant amount of money in attorney's fees. Even more important, you are in a better position to do this task well than your attorney because potential witnesses are drawn from your life, past and present. No one knows the real content of your life better than you. 

First, set up a list or chart that has space for you to add on a rolling basis the following information: type of witness, name, current residence address, current business address, daytime telephone number, e-mail address, date of first contact, dates of follow-up contacts, dates of subpoena issuance, and kind of testimony or evidence the potential witness will provide.

Now, begin with potential business witnesses. Let your mind and your memory roam far and wide; make your list as complete as possible (your attorney will pare it down for reasons of time, location, willingness and other factors later). Think back to the first years of your career. Think about all of these: who did you work with in your first days in your business? Who trained you? Who did you apprentice to? Who supervised you? Who were your co-workers? Your earliest subs? Your earliest customers? Who have you taken classes from? Move your recollections forward in time and add to your list or chart significant people from later years in all of these same categories, working your way up to the present. Who has supervised, inspected, seen your work recently?

It is critical to think carefully through all events that may have led to or contributed to the events at issue in your licensing case and identify all potential witnesses on the facts of  those incidents. These co-workers, supervisors, colleagues, subordinates, clients, customers, and others in similar capacities may have very different experiences or opinions regarding your professional work than the view that your licensing agency is using as a basis for its disciplinary allegations. It is critical to "capture" these favorable witnesses early in the disciplinary process. Their potential beneficial testimony will be highly powerful both at the hearing before an Administrative Law Judge and in pre-hearing settlement negotiations. So be as expansive and over-inclusive as possible in your recollections; include all possible witnesses. Spend a lot of time on this chart, and add to it continuously. The time and effort will absolutely pay off!

After you have a good start on the pool of potential business witnesses, add to your chart or list all potential character witnesses. Again, with your memory roaming from the present as far back as you can, list everyone who might speak well of you, your character, and your reputation. Consider present and former relatives, spouses, adult children, friends, co-workers, employers, neighbors, religious leaders or counselors, psychologists or other mental health professionals, community/club/associational acquaintances (particularly as to any civic or charitable activities), parents of your kids’ friends, teachers, anyone you know. Remember, you are creating the most expansive possible “pool” from which your attorney can cull and select the strongest and most potent witnesses on your behalf.

Finally, add to your list or chart all potentially negative witnesses you can think of. Include everyone with whom you have a present or recent difficulty, or have had any long-standing problem of a serious nature. Anyone you terminated from employment? People you have sued or sued you? Feuding neighbors? A previous job that went south leaving dissatisfied customers, subs, suppliers? Colleagues or co-workers you just couldn't get along with? Don't leave any potentially troubling incidents or witnesses out. It is particularly important to include on the list of negative witnesses, anyone and everyone who may be part of the investigation that has resulted in the licensing agency's case against you.

It will be weeks -- perhaps even months -- between the time you file for a hearing to contest the disciplinary allegations and the date your matter comes up for hearing before the Administrative Law Judge, especially if the State of California continues its present practice of weekly or semi-weekly furloughs of its employees (Administrative Law Judges and the staff that coordinate hearings before them are State employees). So there is ample time and opportunity, while you are waiting for your hearing date, to make the kind of dedicated effort that will result in a comprehensive pool of potential witnesses on your behalf. So assign yourself the task to make every effort -- repeatedly, if necessary -- to track down current addresses, phone numbers and other contact info and to achieve contact with those potential witnesses you can locate.

Yes --for witnesses who you expect will testify favorably for you, you should immediately initiate contact. Tell them candidly the shortest summary version of your licensing dispute. (Don't get into a Q & A discussion -- these conversations are not confidential.) Ask if they would be willing to testify in your behalf. Most will not want to – don't take it personally. Testifying is an unsettling prospect to many people, and can mean lost work time, travel burdens, etc. If a potential witness is unwilling or unable to give in-person testimony, ask if they are willing to submit a letter or affidavit on your behalf setting forth a brief recital of how the witness knows you and the writer's opinion of your character, work, reputation or other relevant issue about you. Include the responses of those you are able to contact in your list/chart.

Over the time that your hearing is pending, you will constantly add information to your witness chart, ultimately conveying to your attorney (1) a list of potential business witnesses who can be called to testify for you at the hearing; (2) a list of potential character witnesses who are willing to give a written statement for use at your hearing; and (3) a list of witnesses who may be called by the State to give evidence against you. From this chart, once complete or nearly so, your attorney will quickly and wisely select the best of the potential witnesses for use at the hearing. Your lawyer will issue subpoenas where necessary to require attendance for testimony, and offer and provide assistance to selected witnesses in preparing written declarations. Your attorney may also conduct advance interviews of negative witnesses which will be valuable to your defense in preparing for cross-examination and settlement discussions.

An adequate witness chart will save 10 – 20 hours of investigative time even in a short and straight-forward case. That translates into hundreds of dollars of your money for attorneys fees. But more importantly -- much more importantly -- a good witness list prepared well in advance of a hearing will make a significantly better case for you. If you are truly committed to the fight to keep your license, and to avoid discipline or income-busting restrictions and conditions, make the commitment to preparation of complete witness lists and stay on task throughout the course.

Tune in in a few days for No. 3 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 occupational license, visit the Website 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.

 
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