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Where to Start on Response to an Administrative Action

thinkstockphotos-529586985Your client is the subject of an agency investigation, accusation, or statement of issues on a license, benefit, or other matter. The timeline for filing your response is typically short, so you’ll have to move fast. Here are the first steps you should take.

First, verify the facts with witnesses. Verify the key facts provided by your client with other witnesses and consider obtaining witness statements from those individuals. But remember that written witness statements must be turned over to the other side in discovery, so you may want to keep the statements within the parameters of your work product as a tactical matter. On the other hand, if you think the witness’ testimony should be preserved for the hearing, consider taking the witness’ deposition or formalizing the statement in the form of a declaration, especially if the statement may assist in settlement discussions.

Second, get information from the agency.

  • Client’s statements. Get any written or recorded statements your client made during any investigation the agency had conducted before initiating formal action against him or her. You can get these statements either through formal discovery or by having your client ask the agency for a copy of them.
  • Table of penalties. You also have to get the agency’s table of penalties. This can usually be done with a simple request because the information is a public record. Information in the table of penalties is essential for any defense based on disproportionate discipline or discriminatory application of rules and regulations against your client. In an action involving the discipline of a professional licensee, you can usually request a copy of the disciplinary guidelines from the Deputy Attorney General representing the agency.

 Finally, if a criminal action is possible or pending, take these additional actions.

  • Have your client retain criminal defense counsel. You should have your client retain experienced criminal defense counsel if there’s a criminal action pending or if a criminal action is a distinct possibility. Note, however, that a criminal defense attorney’s principal focus will be on resolving the criminal charges, without necessarily taking into account the potential effect on a professional’s career or license. For example, criminal defense counsel may reach a plea bargain that avoids incarceration but may provide a strong case for disciplinary action. You need to work closely with criminal defense counsel to minimize any adverse collateral consequences of the criminal proceedings, including any stipulations or admissions made in those proceedings.
  • Instruct your client not to discuss the case. Advise your client not to talk to the police or participate in any investigatory interview with the employer without counsel present. Unless you have the experience and skills necessary to handle a criminal interrogation, bring in criminal defense counsel for any police investigatory interviews. But note that public employees risk administrative sanction for insubordination if they refuse to answer the employer’s job-related questions on grounds of constitutional privilege. If the employee isn’t required to surrender the right to prohibit the use of the statements in a criminal proceeding as a condition of remaining in the job or is specifically advised that he or she retains that right, then the employee must answer questions about job performance. Spielbauer v County of Santa Clara (2009) 45 C4th 704, 725. On public safety officers, see also Lybarger v City of Los Angeles (1985) 40 C3d 822, 829.

For everything you need to know about your client’s rights and options in an administrative action, turn to CEB’s California Administrative Hearing Practice, chap 4.
On use of criminal convictions in discipline of professional licensees, see California Criminal Law Procedure and Practice, chap 53. Also check out CEB’s On Demand program Administrative Hearing Procedures and Practice to learn the ins-and-outs of agency practice and to gain the skills you need for your next matter before an administrative agency.

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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