Non-Adoption by the Licensing Agency

Imagine that you are a licensed professional accused of misconduct by your underlying licensing agency, who now wishes to revoke your license. You retain counsel, attempt to negotiate a stipulated settlement, but the agency’s attorney just will not budge. So, you go to an administrative hearing, kick-butt, put on convincing evidence of rehabilitation and mitigation, as well as strong character witnesses. You can just tell that the Administrative Law Judge feels that you have already suffered enough. Revocation or suspension is all but avoided, and you are looking at some form of reprimand, fine, mandatory education courses, or, at worst, some restrictions on your license, right?
Well, maybe. That is because in professional licensing administrative hearings, the last word does not reside with the hearing officer.
In California, the Office of Administrative Hearings (OAH) hears almost all professional license discipline or denial cases. OAH handles cases for a variety of occupations, including surgeons, engineers, registered veterinary technicians, architects, dentists, insurance brokers and contractors. With offices in Sacramento, Oakland, Los Angeles and San Diego, OAH’s panel of approximately 90 administrative law judges (a/k/a “ALJs”) hears thousands of cases each year.
However, “hearing” a case is different from “deciding” a case. OAH serves the role as the hearing officer and makes sure that procedural and substantive rules are followed in the case. As a neutral observer, they also get the first crack at examining the evidence and testimony, making credibility determinations, weighing what is in the record, rendering findings, and proposing a decision.
Proposing a decision is much different than making a decision. Instead of, “thy will be done”, OAH tells the underlying agency, “I don’t know about you, but here is what I would do in order to avoid getting taken to court.”
A short civics lesson is in order. Licensing agencies are found within the executive branch of government. As such, the licensing agency retains ultimate authority over their licensees. OAH is also a department in the executive branch. It is merely there to serve the licensing agencies and provide fundamental due process to the licensees when matters touch upon the giving and taking of licenses. While licensees do not have a right to their license (rather, a license is a privilege), they do have rights to ensure that those privileges are not unjustifiably taken away or denied. However, even when OAH believes the licensing agency has overstepped their bounds, the licensing agency can disagree and say, “no, we think we got this right; license denied/revoked.” In that case, the only reprieve the licensee then would have is to try to take the matter to the judicial branch of government by way of a writ of administrative mandate.
So, the ALJs’ “proposed decision” can be adopted, modified or non-adopted by the licensing agency. If non-adopted, the matter can be re-set for a new hearing or decided by the licensing agency on the record.
A very high and significant percentage of proposed decisions are adopted as written. However, occasionally a decision is rewritten or even decided differently by the agency. Therefore, for ALJs to do their job, they must be “in tune” with the agencies for whom they decide cases. At the same time, they need to consider that their decision could possibly be reviewed by a judge in Superior Court, or the Court of Appeal. So, it is definitely a tightrope that the ALJ must walk sometimes in order to meet the wishes of the licensing agency while ensuring that the decision will be able to hold up in court, literally.
What that means for the licensee is that finding common ground with the licensing agency on appropriate discipline through settlement negotiations takes on added importance. If a hearing can result in either (1) significantly harsher discipline, (2) the same discipline that is being offered, or (3) lighter discipline, then taking the risk at hearing makes sense. But when option (3) changes to a pyrrhic victory of having the decision non-adopted, re-heard, or option (1) imposed, with only a writ of mandate as a further recourse, it makes settling for option (2) prior to a costly hearing that much more attractive.