Any legal process can be confusing, and the administrative hearing process is no different. There are two important things to understand about the process. First, the rules and processes vary by Department. There is a general set of rules, known as the Administrative Procedures Act. Individual Departments are allowed to generate their own rules for investigations, hearings, and rule making. You must be aware of who the charging authority is in order to know what rules apply. Second, factual determinations made at administrative hearings are difficult to overturn on appeal. Thus, appeals to Superior Court are typically limited to errors in law.
Most administrative hearings follow a common pattern:
1. Investigative Letter
Investigations are mostly complaint driven. An individual files a complaint, prompting the Department to send an investigative letter to the licensee. The letter requests the licensee’s response to the allegation contained in the complaint, and may ask specific questions that the investigator believes are relevant to the licensee’s professional conduct. Depending on the nature and strength of the allegations, and the licensee’s response, the Department may conduct a fuller investigation. That can include interviewing potential witnesses, subpoenaing documents, and deposing licensees. Department investigators will sometimes ask to interview the licensee without issuing a subpoena. There is no legal authority requiring licensees to consent to such interviews. An investigator may threaten to make an adverse report to the decision-making body within the Department if a licensee refuses, but that is a small risk compared to consenting to an undocumented interview.
2. Department’s Finding
The Department will review the investigative material and make one of three choices:
- The Department may decide there is no merit to the complaint and dismiss it.
- The Deparment may offer a compromise—often in the form of an informal disposition (i.e., before formal charges are filed). As with matters that go through the administrative hearing process, cases that are settled generate at least some public record. The Department reports informal dispositions to any relevant national databases, and related records are available to individuals and entities pursuant to public records requests. But, an agreed resolution provides an opportunity to resolve the matter without incurring the risk and expense of litigation.
- The Department may file a statement of charges without providing an opportunity to discuss the matter.
3. Statement of Charges
This is the charging document. It sets out the Department’s allegations and proposed penalties. The penalty may be in the form of a fine, payment of investigative costs, or professional restrictions—ranging from educational remediation and probation to license revocation. Failure to answer a statement of charges allows the Department to impose penalties without having to prove its allegations. It is essential to answer the statement of charges and request a hearing.
4. What is “Unprofessional Conduct”?
Licensees are often charged with “unprofessional conduct,” the meaning of which is vague. For example, is it unprofessional for a real estate agent to have been convicted for drug possession?
Courts have consistently held that charges of unprofessional conduct must be limited to untoward conduct in the practice of the licensed profession.
The Department of Licensing has taken the position that a conviction for drug possession or shoplifting constitutes unprofessional conduct because it raises concerns about a real estate broker’s propensity to abuse his or her professional position and tends to harm the standing of the profession in the eyes of the public, both of which it asserts lead to “reasonable apprehension about public welfare.” The DOL sites Haley v. Med. Disciplinary Board, in support of their position. But the facts in Haley and that court’s legal conclusions in it are distinguishable from the realtor who is convicted of simple drug possession or shoplifting. The nexus between Dr. Haley’s practice and the criminal conduct was direct and grossly offensive. The court did take a “broad view” in finding unprofessional conduct, as DOL has asserted, but only in terms of finding that behavior which was not “directly connected with…technical competence to practice” could constitute unprofessional conduct. Nevertheless, Haley does not stand for the proposition that conduct entirely unrelated to the practice of a profession or operation of a business can constitute unprofessional conduct.
Administrative proceedings are geared towards settlement. Discovery and pre-hearing procedures are meant to establish the groundwork for a favorable settlement. Few cases go to hearing. Settlement talks can continue up until the judge makes his or her decision.
6. Discovery Under the APA
Absent an agency rule, discovery is governed by RCW 34.05.446, which provides that discovery may be conditioned on a showing of need under certain circumstances. These circumstances will be determined by the presiding officer according to Washington Superior Court Civil Rules 26 and 36. In other words, the Department must disclose all non-privileged matters relevant to a party’s claims or defenses. This includes disclosure of all witnesses with knowledge of facts relevant to the case (and not just the names of those the Department intends to use at trial). Information identifying a person interviewed by an attorney, the time, date and place at which the interview occurred, and the phone number of such person interviewed must be disclosed. The work product doctrine does not protect the underlying facts contained in documents from discovery, such as the names and addresses of witnesses interviewed by counsel. Further, the identification and production of any documents exchanged during those contacts or communications must also be disclosed. Only which witnesses counsel finds important is protected as a mental impression. The subject line and third-parties involved in e-mails to and from the Department are also discoverable.
An administrative hearing is like a trial, but with fewer procedural safeguards. Perhaps the most striking difference between an administrative hearing and a civil trial is that the Rules of Evidence do not strictly apply in administrative hearings. The presiding officer may base findings entirely on evidence that would be inadmissible in a civil trial (e.g., hearsay) as long as he or she determines that it is “the kind of evidence on which reasonably prudent persons are accustomed to rely in the conduct of their affairs,” and that doing so would not “unduly abridge a party’s opportunities to confront witnesses and rebut evidence.” RCW 34.05.461. Judges may directly intervene in order to establish the record—and they often do in order to establish the record the way they want it to be.
The process is complicated and rife with legal pitfalls. Hiring an experienced attorney is well worth the money, given the implications to your ability to work if it goes against you.