Handling a Rehabilitation Evidence-Heavy Licensing Hearing

A plurality of our law firm’s work comes in the form of defending professional licensees from licensing agency discipline. This entails the administrative hearing process, which typically leads to a hearing of varying length before the Office of Administrative Hearings. But only if a settlement cannot be negotiated and agreed to before the hearing.

The vast majority of these cases are not, “whodunnit?!?” type cases. Rather, they stem from criminal convictions being substantially related to the underlying profession. As a result, our challenge – for both our law firm and, more pertinently, our client – is to put on sufficient evidence to demonstrate to the hearing officer that the licensee-client has been sufficiently rehabilitated and can continue to be entrusted with a license or a license subject to restrictions. And each agency puts out specific criteria that it must consider for purposes of determining whether the licensee is fully rehabilitated.
Well, where is the challenge, you ask? First of all, the licensee-client needs to engage in the rehabilitation. They need to complete terms of their criminal sentencing, pay fines, pay restitution, complete work projects, and be on their best behavior for a set period of years. In addition, they need to take requisite continuing education courses, of particular importance would be any course relevant to how the underlying offense related back to their profession (i.e. ethics, professional responsibilities, etc.). Then, they need to change business practices or business associations that may had led them down the wrong path in the first place.
In addition, they need to volunteer, get involved in their community, and contribute to improving society. Of particular importance, again, would be any community or volunteer service that relates back to their underlying offense. Finally, mental and spiritual health counseling. Even though you may not believe it is needed, going through the process is worthwhile to demonstrating effort.
Ok, now what? Well, now the challenge is up to your attorney on how best to tell your narrative at hearing. Unfortunately, most of these “rehab-heavy” cases only get assigned to a one-day hearing. So, your attorney is going to have to balance telling the complete story with the time allotted. And remember: The other side gets to tell their story too. As a result, your attorney is going to have to rely upon a limited number of witnesses (supplemented with declarations) and other documentary evidence to make his point.
The declarations – typically from family, friends, colleagues, consumers, therapists, religious leaders – can be admitted and considered as a form of administrative hearsay. So long as the appropriate foundation for each document is established at hearing and in the event of a timely objection, the hearing officer will be able to review the documents and consider the descriptions and opinions contained therein.
However, the hearing officer will not be able to rely solely upon the declarations to establish the rehabilitation. That is because administrative hearsay is not sufficient in of itself to make a finding. Rather, the hearing will also need to contain some testimony to establish the rehabilitation cited through the evidence and declarations. Thus, securing good witness testimony is important, even at a one-day hearing.
The licensee-client and attorney need to work together to identify credible witnesses.  This would be individuals without a checkered background or complicity in the underlying misconduct. They will also want to call a diverse group of witnesses, meaning not just three pastors to testify about how good of a Lutheran the licensee-client has become. Instead, one religious leader, along with a colleague, a community organization leader would provide much stronger testimony. All three of those witnesses provide a different perspective and experience when dealing with the licensee-client. They all shed light into his or her character and help add some depth to the words found in the declarations.
With good luck, the hearing officer will find you and your witnesses credible and be impressed with the depths you went to rehabilitate.  And in so doing, the hearing officer will go out of his or her way to write a decision that convinces the underlying licensing agency to keep you as a licensee, with restrictions that make sense in light of your already extensive acts of rehabilitation.