Professional Licensing Litigation: How to Use Pre-Hearing Settlement Conferences to Your Advantage
When the State of Indiana files an Administrative Complaint against the holder of a professional license, the Board governing the licensee will set the matter for a hearing. In many cases, the Board will also set the matter for a Pre-Hearing Settlement Conference (“PHSC”).
A PHSC is an opportunity for the parties to meet and present their basic allegations and defenses. At the conclusion of the PHSC, the State, through a Deputy Attorney General (“DAG”), will recommend discipline. If the parties can agree on a settlement, they will adjourn and draft a settlement agreement to be presented to the Full Board for approval. If they cannot agree to settlement terms, the parties will continue toward the hearing.
This article reviews important facts regarding PHSCs that all licensees should keep in mind and how licensees can use a PHSC to their advantage.
When the PHSC is held
- In some cases, the PHSC is held over a month before the final hearing. Some Boards may set the PHSC to occur the same day as the final hearing. In that case, the Board will postpone the hearing if the parties reach a settlement agreement.
- If the Board does not set a PHSC, the licensee may request one.
- Petitioner, the State of Indiana
- Represented by one or more DAGs
- The Board governing the licensee
- Represented by one or more Board Members
- The licensee
- Individually or represented by counsel
- PHSCs are held in a private room separate from the hearing location.
- The room may be listed on the licensee’s notice of hearing or the location may be posted at the main hearing location. Many Boards use a sign-in sheet for licensees who are scheduled for PHSCs. The PHSCs are often called in the order of the sign-in sheet. In order to be called among the first on the list, the licensee should find the room and sign in as early as possible. PHSCs often go on into the late evening.
- PHSCs are generally held in a private room. However, some Boards have held PHSCs in rooms open to the public under the Open Door Law. If the PHSC is open and observed by non-parties, the confidentiality provisions which normally cover settlement discussions may not apply.
The Board Member will call a PHSC and the parties enter the room and take seats at a table.
- State’s Presentation
- The State will present the facts which form the basis of the Administrative Complaint and list the alleged violations of professional standards and rules.
- The State will typically produce the evidence supporting its allegations at the PHSC.
- Finally, the State will make recommendations for discipline to the Board Member. This will be either a: (1) Letter of Reprimand; (2) Probation; (3) Suspension; or (4) Revocation.
- In some cases, the State will ask the Board Member for a recommendation of what discipline the Board would accept if the facts were accepted as true.
- Licensee’s Presentation
- The licensee will have an opportunity to dispute the facts in the Administrative Complaint, provide defenses to the allegations, and list any mitigating circumstances which should be considered.
- If it is strategically beneficial, the licensee may produce evidence supporting the defenses and mitigation against the claims at the PHSC.
- Board Member Recommendation
- After both sides have presented their arguments and evidence, either the Board Member will approve the DAG’s discipline recommendation or the Board Member will issue his/her own recommendation.
- If the Board Member accepts the DAG’s recommendation, it will be up to the licensee to either accept or reject the recommendation.
- If the Board Member proposes a new discipline recommendation, the DAG will have to seek authority from the State to settle on the newly proposed terms.
- Importantly, unless the licensee’s defenses cause the State to drop any or all of the alleged violations, the recommended discipline and settlement agreement are based on the understanding that all facts alleged in the Administrative Complaint are true.
Important Considerations for Licensees:
1. PHSCs are usually beneficial to the licensee. This is the licensee’s opportunity to review the evidence the State intends to present at hearing and to learn the proposed discipline the State will seek.
2. The parties can jointly use a PHSC to seek early approval of a settlement. When the parties can agree to settlement terms before the PHSC, they can present a joint settlement recommendation to the single Board Member and both advocate for approval of the agreement. The Full Board will be more likely to approve a settlement where one Board Member has already approved after hearing the facts, reviewing the evidence, and questioning the parties.
3. Make sure all proposed settlement terms are explained. Frequently, the State will only disclose some of the settlement terms and not list those considered to be “standard.” This means the licensee may agree to the settlement without knowledge that the final agreement will require them to:
a. Keep the Board informed of the licensee’s residential address and telephone number at all times;
b. Keep the Board informed of the licensee’s employer’s name, address and telephone number at all times;
c.Have the licensee’s current employer sign and return a copy of the Order Accepting Settlement within 10 days of issuance;
d. Have any new employer sign and return a copy of the Order Accepting Settlement within 10 days of employment;
e. Have the licensee’s employer submit quarterly reports to the Board addressing the licensee’s duties, responsibilities, character, and performance; and
f. Pay any fees associated with the violations.
Failure to meet any or all of these “standard” terms may result in additional discipline periods, emergency suspension, or license revocation.
4. Ask how and when the probation or suspension is to be lifted. It will be the licensee’s duty to file the petition to lift probation or suspension pursuant to Ind. Code § 25-1-9-9(b).
5. The licensee must attend the PHSC even if they have no interest in settlement. If the licensee fails to appear at a scheduled PHSC, the Board may issue a Notice of Proposed Default pursuant to Ind. Code §4-21.5-3-24. Upon receiving a Notice of Proposed Default, the licensee must file a written motion within seven days of the postmark date requesting that the Board not enter a default order and explaining why he or she could not attend the PHSC. If a default order is entered, the Board will hold additional proceedings without the participation of the licensee. If a licensee cannot attend, he/she should contact the Board and the DAG assigned to the case and reschedule it rather than being subjected to default.
By: Drake T. Land, former Riley Bennett Egloff attorney
© Riley Bennett Egloff LLP
Disclaimer: Article is made available for educational purposes only and is not intended as legal advice. If you have questions about any matters in this article, please contact Riley Bennett Egloff.
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Posted on Feb. 04 2019