Due Process for Accused Licensed Professionals in Disciplinary Proceedings

Most licensed professionals never anticipate getting in trouble with the licensing Board, and most never do.  So it isn’t surprising that very few are aware of the disciplinary procedures.  For instance, what happens if a physician or dentist, etc., especially one who is innocent of any wrongdoing, is charged by the state licensing agency with an offense that could result in loss of his license?

An accused licensed professional may be treated with less fairness than a citizen accused of a traffic violation and may receive a rude awakening regarding his rights to defense.  In most states, the rules and procedures for bringing disciplinary charges against licensed professionals are grossly unfair to the accused.  The agency may receive complaints against the licensee, do its own investigation, initiate charges, and hold a formal or informal hearing.  The hearing usually is presided over by a hearing officer (in California, an Administrative Law Judge or ALJ), who hears the evidence, governs the conduct of the “trial,” and basically acts as a Judge, EXCEPT THAT HIS DECISION IS MERELY AN ADVISORY OPINION, OR RECOMMENDATION.  The licensing agency or Board may choose to disregard this and render its own decision.

In a typical case, the State Board decides to bring disciplinary action against a licensee.  It then refers the case to its attorney (in California, the state Attorney General’s office), which prepares and files a formal Accusation.  Eventually, the accused is given a formal hearing presided over by the ALJ.  Because a decision in favor of the licensee is, in effect, telling the Board that it was mistaken in its assessment of the case, it is not surprising that the state agency frequently decides to ignore the decision of the Hearing Officer and to discipline the licensee more severely.

The licensee may petition the court to overturn the Board’s decision.  However, this procedure is both expensive and difficult, and frequently drains the licensee emotionally and financially, forcing him to abandon his defense and accept the Board’s disciplinary measures.  Surprisingly, the only decisions in such suits by appellate courts, including the U.S. Supreme Court, have held that “allowing the Board to hear and adjudicate the case, when the charges arose from its own investigation, did not violate due process.”[1]

It is our opinion that this procedure, which is used in most states, constitutes a clear denial of due process to an accused professional.  A state agency acting as a final adjudicator should be held to the same standard of impartiality as a Judge.  However, because of its investigative function, the agency inevitably is allied with the prosecution.  Once it has made a determination that there are grounds to proceed to a hearing, the agency has a stake in the outcome.  The agency also may not be objective about the witnesses and testimony because the information often is acquired through the agency’s own investigation by the agency’s own investigators.  The agency also may be influenced by the need to maintain its reputation.  It may feel pressure to protect the public from professional practices that it considers unlawful or unethical, and so act aggressively in prosecuting suspected violators.  This essentially may create a climate in which the licensee is required to prove his innocence.  The agency also may feel pressure to justify the expense incurred in prosecuting the licensee by finding that a violation did occur (even though the agency is entitled to seek, and usually does recover, its costs of investigating and prosecuting the licensee, but not costs incurred in the actual hearing itself). 

Judicial review of the Board’s decision by a court is of little value to the licensee.  In most states, the reviewing court cannot rehear the evidence, and can reverse the Board’s decision only if the Board’s fact-finding is not supported by substantial evidence or is clearly erroneous.  These standards do not sufficiently protect the licensee’s interests, and, in effect, the agency’s possibly biased decision is final and unassailable. 

What is the solution?  Because it does not seem likely that the courts will invalidate these unfair administrative procedures, an obvious remedy that is fair, simple, and long overdue, is corrective legislation.  The state statutes that govern the conduct of administrative disciplinary procedures should be amended by the legislatures so that the decision of the Administrative Law Judge or Hearing Officer is binding on the Board.  Of course, both parties would have the right to petition the court for review.  In addition to providing for basic fairness and due process, this change would streamline the system and reduce the burden the accused licensee must bear in defending himself.  As an incidental benefit, this procedure would promote compromise settlements of administrative cases, since the Board, in dealing with the accused and his attorney, would have to face the possibility that a Hearing Officer might find that the Board made a mistake.  Under present law, the Board knows it can disregard the Hearing Officer’s decision and is less likely to enter into meaningful settlement negotiations with the accused or his attorney.  The right to a fair trial is one of the most important guarantees under the Constitution, and certainly should be granted to licensed professionals who are being prosecuted for infractions that could result in the loss or suspension of their right to practice.

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[1] Withrow v. Larken, 42 US 35 (1975).