Employment Law Open Records & Meetings Hearing Procedures

Welcome to AIM’s New Executive Orientation (NEO)!

Fundamentals  Most of this is like HIPAA privacy rules It’s common sense It’s stuff you probably already do  We’re not here to lecture or talk down to you  We want to let you know: It’s not just you! We’ve all been there We’re a resource for you

Employment Law  Most of us don’t come from traditional management backgrounds  A few of us are attorneys, but often didn’t do much employment law  Government employment has its own “special rules”  Government employees present their own “special opportunities”  A recipe for headaches, or worse!

Employee evaluations – Part 1  Stay on top of them  Don’t use only when they are negative  Document, document, document!  Clear expectations  Clear mileposts  Clear guardrails

Employee evaluations – Part 2  Regularly review on your own and with employees  Guides your leadership and management  Make sure that an employee’s failure to meet goals and expectations isn’t because of your failure to set goals and follow up

Executive Director evaluation  Depends on your agency structure Part of larger state agency, it’s usually taken care of If Board is independent, work with leadership (and Governor’s Office, likely) to set up structure Seek regular review – formal and informal – to avoid getting blindsided

Hiring & firing employees  Make sure you trust your HR people  Consistency is critical  Know the hiring process Script interview questions Know what you can’t ask or say!  Know the firing process  When firing, get legal advice early  Document, document, document!

Employee recognition – Part 1  Shrinking budgets  Tightening prohibitions  Employee recognition is critical Say “thank you” often and publicly – and mean it! Praise staff to the Board – especially when they are present When dealing with outsiders: ○ Credit for good goes to staff; ○ Blame for bad is absorbed by the Executive Director (with private discussion later) Whatever you do, be sincere about it

Employee recognition – Part 2  In stressful times, have your employees’ backs – even if you need to have a private coaching session later  It sounds corny, but showing you genuinely care about an employee as a person is sometimes the most important recognition of all

Board relations with staff – Part 1  Work to maintain a friendly relationship, but with clear boundaries  Be friendly, not friends  Decide whether you want open access by Board to staff  Chose direct access level carefully – it’s nearly impossible to “un-do” later  Tight controls can look paranoid

Board relations with staff – Part 2  Be prepared to step in and protect staff if a Board member (or anyone else) becomes difficult or confrontational  Regardless of the model you follow, make it clear to staff you want to know about Board member contacts because you are directly accountable to the Board

Employee relations “take-aways”  Document, document, document!  Consult HR, Legal, etc.  Whatever you do, be: Caring Sincere Honest Consistent Reliable  And watch your back

Open Records  No substitute for using your advisory attorney  A lot of things to consider in public records: Basic public records law – no 2 states alike Federal FOIA likely doesn’t apply FSMB Model Medical Practice Act has a lot of confidentiality provisions

Open Records  More things to consider in public records: Know the exceptions for your Board ○ Within actual Public Records Act ○ In the Medical Practice Act Know the exceptions in federal & state law ○ 42 CFR Part 2 ○ HIPAA (it’s a double-edged sword!) ○ Peer review statutes

Open Records  More things to consider in public records: Get to know your open records law ○ But don’t try to become an expert – there are too many nuances ○ Make use of legal counsel If you have sufficient staff, designate a lead for records requests ○ If you don’t, then designate yourself ○ Even if you do have someone else taking them, make sure you know about all requests

Open Records  Emerging challenges s Communications with FSMB ○ Board Action Data Bank Reports Communications about FTC and Supreme Court case re NC Dental Web page, Facebook, Twitter, etc.

Open Meetings  Open meetings law is a can of worms Notice, notice, notice! (and document, document, document!) Know and understand the reasons you can go into executive session Train your Board on executive session and the procedures Know the rules for records, minutes, etc. ○ Public session ○ Executive session Consider putting on your public agenda when you will go into executive session, and the general reason(s) for it

Had enough yet?

Hearing Procedures  Acting as a government tribunal  Respect the function of the tribunal Don’t fall into personalizing the process – maintain objectivity Critical example to staff, prosecutor and Board If you can’t, then step away Preserve the integrity of the process – let the Board members and prosecutor worry about the “right outcome”  Respect the Board’s decision

Hearing Procedures  Licensees think the system is stacked against them  Don’t prove them right!  It’s actually stacked against the Board Prosecution usually has a higher burden of proof Prosecution has to do everything right – a single mistake can cost the case Reviewing courts often have a distrust of licensing boards and their power Now, the FTC is looking over our shoulder, too

Hearing Procedures  Appeal process  Build every case for appeal The case that will never be appealed will be! Easier to get it right from the get-go than try to “fix” a messed up case Don’t be afraid to hit “reset”  My personal goal We may get overturned on the facts We may get overturned on the law But if we overturned on procedure, that’s a system error, and I’m responsible!

Hearing Procedures  Understand the case law from your state  Make sure your prosecutor and advisory attorney are experts in it!  There are lessons in every case – it pays to re-read them from time to time  Try hard to not be “that board” in your state!  Make sure everyone (including Board) understands not all cases are “standard of care” cases

Tort Claim Immunity  General rule: Government employees & Board members acting in good faith have immunity  But cf. NC Dental and FTC “guidance”  AG usually provides defense  Liability is the state’s – indemnification  So follow rules, and don’t cut corners  Document, document, document! (Again!)  It all goes out the window with bad faith!

Administrative Procedure Act  Not only do you have the MPA and your rules to follow  Often APA (or similar) sets out procedures for hearings  Office of administrative hearings may also have rules of procedure  Rules of Civil Procedure, Evidence, and Appellate Procedure may also apply

Constitutional Issues  License to practice is a property right  Federal and state constitutions apply  Due process requirements Reflects that the state is attempting to take or limit a property right Right to hear charges and evidence, and present opposing evidence Preponderance of the evidence (>50%) Clear and convincing evidence (“the contention is highly probable”) Beyond a reasonable doubt (criminal)

Testimony  Make sure you have seasoned counsel as your prosecutor  They will know what to do  Never, ever, EVER “coach” a witness Taints your credibility and the Board’s Can cost the case Can cost your job!  Make sure everyone on your team follows that rule, and it is non-negotiable – including in the course of investigations

Hearsay  “REO Speedwagon” evidence standard!  Usually administrative law proceedings permit hearsay – at least to a degree  That said, try to avoid counting on it Even if it’s admissible, it carries less weight It’s less credible than hearing it first-hand Weakens your case on appeal

Exhibits  A good investigator, and a good legal assistant, are priceless  Put systems into place to log, manage and secure evidence as it’s collected Take documents as received, and keep in exact order and condition Scan and Bates stamp them right away Only let Prosecutor, Executive Director, Investigator and Board members have copies! No notes, highlighting, etc., on originals

Exhibits  Put systems into place to log, manage and secure evidence as it’s collected – cont’d. Last thing you want is to have your only copy of a critical document have your prosecutor’s yellow highlighter and handwritten notes on it (and believe me, if does happen!) Organize so your Board or disciplinary committee members can understand them That includes summaries of evidence (which should be prepared by the Prosecutor) A good document record is invaluable on appeal

Privileges and Confidentiality  Make sure all understand the protections for documents and communications: Attorney-client privilege Attorney work product Statutory protections (MPA)  Even if you think it’s protected, though, be careful what you reduce to writing Federal subpoenas (§ 1983 actions & lawsuits) Inadvertent disclosures Unforeseen events

Danger Zones  Ex parte communications: Hearing officer Board members and outside parties Board members with each other  Confidentiality concerns Patient records Drug and alcohol abuse and addiction Sexual misconduct and boundary violations Employees of licensee Licensee’s family – especially minor children  When in doubt, don’t say it or write it!!

There! Now that wasn’t so bad, was it?