The administrative hearing process

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 the process 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 litigation and rule making.  You must be aware of who the charging authority is and what specific rules they have.  Second, fact decisions at administrative hearings are difficult to overturn on appeal.  Thus, appeals are generally limited to errors in law.  The superior court, which is the court of appeals, usually doesn’t decide matters of fact.Having said that, there is a common pattern to all administrative hearings:

1. Investigative letter. Most investigations are complaint driven. A consumer files a complaint and the Department sends a letter to the licensee asking him or her to explain the circumstances.  Sometimes Departments do not send out investigative letters, such as when the allegations are patently absurd. Depending on the nature and strength of the allegations, and the licensee’s response, the Department may conduct a fuller investigation. This can include interviewing potential witnesses, subpoenaing documents, and deposing licensees.  Department investigators will on occasion ask to interview the licensee without issuing a subpoena.  Departments do not have that authority: they can only send written interrogatories.  Investigators will 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 then look at the investigative material and make one of three choices. One, they will decide that there is no merit to the complaint and drop it.  Second, they will offer a compromise, often in the form of a STID, prior to filing a statement of charges.  A STID is a public document.  The Department will also report a STID to any national data base.  However, a STID is an opportunity to settle the matter without incurring the time and expense of litigation.Third, the Department will file a statement of charges without any opportunity to discuss the matter.
3. Statement of Charges.  This is the charging document. It will set out a Department’s grounds for discipline in the form of “facts,” and the proposed penalty. If a licensee does not file a request for an administrative hearing, the proposed penalty becomes final. Always request a hearing.
4. Post Statement of Charges negotiations.  Settlement talks continue up until the judge makes his or her decision.
5. Hearing.  An administrative hearing is like a trial, except many of the protections safeguarding a respondent are not there.  Hearsay is admissible and the judge has very broad discretionary powers regarding the admission of evidence. A judge may also 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.

As you can see, the process is complicated.  Hiring an experienced attorney is well worth the money, given the implications to your ability to work if it goes against you.