Unlike the setting in criminal trials, administrative hearings are not heard in front of a presiding judge or a judge and a jury. Instead, administrative hearings are held before a presiding hearing officer or a panel of multiple members. This is an important distinction because the amount of adjudicators and the type of adjudicators that hear a given case could change how a licensee will present a defense.
Who Hears Which Cases?
The types of adjudicators on a panel will differ depending on the profession of the licensee. For example, the panel will be different if the hearing is before the Board of Chiropractic Examiners, the Department of Consumer Protection, and the Bar Grievance Committee. There are different types of panels for different trades under the Department of Consumer Protection, such as a different board for construction professionals or hairdressers.
Dealing with Bias
Something that must be established early on is whether the hearing is before a panel that is not prejudiced or biased. Although the standard of showing bias is very high, sometimes the appearance of impropriety is enough to show that there is prejudice and this could be enough for the panel to be changed. If there is the suspicion that one or several members of the panel are biased, this argument must be brought as early as possible to ensure the issue is addressed.
Because board members that form a panel for administrative hearings are often involved in the particular profession of the licensee, there is always a possibility that the licensee knows one or several members of the panel. This is a problem in criminal hearings, but usually not a legal issue in administrative hearings. Licensees that are facing an administrative hearing should under no circumstances reach out to a board member or adjudicator before a hearing. Communication with hearing officers is off limits unless it is required in limited circumstances when the licensee is “ex parte” and going through the process on their own.
Communicating With the Investigator
Communication between a licensee and an investigator is not the same thing as communication with a hearing officer or panel member. During an investigation, it is often necessary for the licensee to have communication with the investigator because there will be physical investigating, requesting and responding to requests of documents and records, and other direct communication with the licensee, so that the investigation can be complete. This, however, does not mean that the licensee should freely communicate with an investigator and speak with them candidly. It is important to remember that speaking to the investigator could lead to too much information being said, the wrong information being said, or even a miscommunication that could look negative on the licensee.
The possibility of miscommunication or saying the wrong information in front of investigators or panel members can be a critical mistake. This is why it is so important to have an attorney to represent a licensee. There are differences between judges and hearing officers or panel members. For example, hearing officers and panel members are not judges and should be given respect but are not to be called “Your Honor.” Administrative hearings are less formal than trials and this can mislead a licensee to think that an informal approach is appropriate. However, the lack of a judge in a robe, formal courtroom etiquette, and formal courtroom setup does not mean that the administrative hearing is any less intimidating or important. Hearing officers still have significant power, including the power to administer oaths, take testimony, subpoena witnesses, require the production of documents, and present evidence.
Although an administrative hearing can be intimidating, you always have the right to be represented by counsel and not do it alone. The possibility of getting a professional license taken away or facing disciplinary action can be horrifying. If you are at any stage of this process or fear that a board may take action against you, call our office to speak with an attorney who can help you.