1. Employment Law Open Records & Meetings Hearing Procedures
Aim Executive ACADEMY

2. Welcome to the AIM Executive Academy (AEA)!

3. 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

4. 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

5. 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

6. 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!

7. 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

8. 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!

9. 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

10. 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)

11. 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

12. 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

13. 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

14. 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

15. 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

16. Danger Zones Ex parte communications: Confidentiality concerns
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!!

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