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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 5
By Attorney Arthur Thexton, Of Counsel
Part 5: What Happens When the Wisconsin Department of Safety and Professional Services Files a Formal Complaint
In my last blog, I outlined how investigations normally proceed, once a complaint is opened for investigation. Most complaints do not result in any discipline, and are closed at the conclusion of the investigation. Now, I discuss what happens when a case is moved to the prosecution stage.
If a case is not recommended for closure by the case advisor, the file is sent to the prosecuting attorney assigned. Usually there will be a discussion between the prosecuting attorney and case advisor of what outcome (that is, what discipline) would be appropriate. If an expert witness will be needed to establish a prima facie case, the case advisor will be asked for some names of appropriate professionals. This is most frequently done in quality of care cases in the health professions, and in professional standards cases in the business professions.
After this review, in most cases a stipulation is offered to the respondent. Negotiations may occur (it is important to remember that the first offer to settle is not necessarily the bottom line, and you should feel free to discuss alternatives with the prosecutor), and if an agreement is reached the board will issue a disciplinary order without any formal proceedings. 90% of all disciplinary orders are issued in this manner, mostly in the less serious (i.e. misdemeanor) categories. However, many serious cases are also handled this way, and revocations or surrenders of licenses do occur in this manner.
When a settlement is reached, it is in the form of a Final Decision and Order. This is attached to a standard form Stipulation signed by the respondent (and his attorney, if any) and the prosecutor, presented to the board by the board's legal counsel (not the prosecuting attorney) and then deliberated, all in closed session. In direct regulation cases, the signed stipulation and order are simply routed to the Secretary with the file. If the stipulation is accepted, the Final Decision and Order will be signed and issued. If rejected, there will usually be some informal guidance from the board's chair or legal counsel as to what the difficulty is. New stipulations often follow such rejections. Some boards have a higher rejection rate than others, and on average 5-10% of stipulations are rejected the first time. It is important to note that this is not like a criminal plea bargain, where the judge is free to accept the plea and then disregard the sentencing recommendation agreement of the parties: in these cases, the board or Secretary must accept or reject the entire package, so the licensee is protected more than in a criminal case.
As an alternative to formal discipline, the legislature has authorized “Administrative Warnings” which are not discipline and are a sort of private reprimand. They are a statement to the practitioner that he or she has erred, and ought not do so in the future. The fact that a licensee has received an Administrative Warning is a public record, but the content of the document is confidential. Some boards have the express authority to order specified continuing education, and all boards can effectively do so by artful use of the limited license. Occasionally, a suspension is imposed and stayed, allowing the respondent to avoid the suspension by taking some specified action. No board has the express authority to order restitution or compensation to an injured party. The function of the Department and boards is to assure minimum competence for the future protection of the public, not to obtain damages for individual injured consumers.
Another alternative to discipline is a uniform confidential procedure available for handling chemically dependent licensees, called the Professional Assistance Procedure (Wis. Adm. Code ch. SPS 7). This program is available only in the discretion of the board, and involves a diversion of a case into a non-disciplinary track where the licensee undergoes and remains in a treatment and recovery program monitored by staff of the Division of Legal Services and Compliance. The records of the program are disclosed to the prosecutor only if the licensee violates the agreement, and is removed from the procedure. If the program is successfully completed the case is closed without discipline. If the case is already a matter of public record, or is not eligible under the criteria for that profession (Wis. Adm. Code § SPS 7.03(4)), then the case is unlikely to be diverted.
If you ever find yourself or your business as the subject of a Department investigation or complaint, feel contact me or another experienced attorney here at Gimbel, Reilly, Guerin & Brown, LLP.
