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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 6
By Attorney Arthur Thexton, Of Counsel
Part 6: Can the Department of Safety and Professional Services Impose Costs of Investigation, and, How Can We Talk Directly to the Case Advisor?
In my last blog, we examined what happens when a formal complaint is filed by the Wisconsin Department of Safety and Professional Services. Today we are going to discuss the cost of the investigation and how to have direct connect with the Case Advisor.
All boards and the Department have authority to impose the full costs of the investigation, prosecution, and hearing upon the respondent Wis. Stat § 440.22. These are not the usual costs taxable in a circuit court proceeding, but the actual time of the investigators, expert witnesses, prosecuting attorneys, and administrative law judge, plus actual expenses such as court reporters. This time is figured by the Division of Legal Services and Compliance on a standard basis of $27 per hour for investigators, $22 per hour for paralegals, and $54 per hour for prosecuting attorneys (adjusted periodically), and the actual cost of expert witnesses, depositions, and transcribing the hearing. It does not include a factor for overhead, clerical or other support, etc. However, in a contested medical board case it is not uncommon for the costs to run tens of thousands of dollars. The awarding of costs is discretionary, but if they are not paid by the respondent then they are borne by the other licensees within the profession, as the Department is funded entirely by user fees. Forfeitures are paid to the state school fund, pursuant to Art. X Sec. 2, Wisconsin Constitution. Costs are retained by the Department and used to pay its expert witnesses, court reporters, and other expenses. A license may not be renewed when unpaid costs are outstanding, but neither the costs nor the forfeiture is docketable directly with a clerk of court. Enforcement of such orders is by threat of additional discipline including revocation, for violating the board's order to pay; also, no other license may be issued or renewed by the department or attached board, and the department of justice may sue to collect, Wis. Stat. § 440.20. The policy of the Division is to seek full costs in every case; reductions in costs are judged by a written policy and must be approved by supervisory staff.
Occasionally a case has an "Informal Settlement Conference." (Wis. Adm. Code § SPS 2.036) When this procedure is used, the prosecuting attorney, case advisor, another board member, board legal counsel, respondent, and respondent's attorney (if any) meet informally and discuss resolving the case. No testimony is formally taken, although occasionally a witness is present. Typically the parties would state their positions, and then permit the two board members to discuss the case with their legal counsel. An offer of settlement will be made to the respondent, who may accept or reject it without penalty. There is no negotiation with the members of the board, although if the offer is rejected, there certainly may be continued negotiation with the prosecuting attorney as the case continues in the process. The board (meaning, as a practical matter, the case advisor) is not obligated to hold one, and most prosecuting attorneys disfavor them unless there is no disagreement about the facts, and the sole issue is outcome. Sometimes a respondent just wants to tell his story, or needs to hear directly from someone in the same profession, not through the attorneys!
Next, I will talk about what happens when a case is not settled at this stage.
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.
