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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 2
By Attorney Arthur Thexton, Of Counsel
Part 2: How does the Wisconsin Department of Safety and Professional Services Review Complaints?
In my last blog, I talked about how the Department is organized. This time, we will see how the Department operates on a day-to-day basis, when complaints are received.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 3
By Attorney Arthur Thexton, Of Counsel
Part 3: The Role of the Case Advisor for the Wisconsin Department of Safety and Professional Services
Last time, I talked about how complaints are screened before any decision is made to investigate them or not. This time, I will talk about the case advisor, a role which is unknown to most, but which is critical for the Department. Each and every case which is opened for investigation has a "case advisor" assigned to it. The case advisor is a member of the licensing board who will review the case, give advice to the investigator and prosecuting attorney, and discuss and approve the terms of any settlement that may be offered. The case advisor will then not participate or vote on the case, when it comes before the full board, unless the case is stipulated, in which case participation in voting is permitted. The purpose of the case advisor system is to allow the investigator and prosecuting attorney to have the benefit of the professional expertise of a practitioner, and the advice of a member of that board concerning both what is appropriate conduct for the profession and what sort of priorities the board has at the time. As a practical matter, the case advisor functions as the client, and determines whether the case will be closed, or discipline will be sought. Only in very rare cases will the prosecutor seek an outcome opposed by the case advisor. Our legislature has devised an inquisitorial system for regulating the professions, as have most states. The board is the body which (through Department staff) investigates the complaints, prosecutes them, sits in judgment, and issues the discipline. This is a different system from that used for criminal prosecution in this country, in which the judiciary is totally separate from the prosecution. To some, this may seem grossly unfair, but it is the choice that our legislature has made, and it has been repeatedly held constitutional. In order to prevent unfair prejudice, there is some administrative separation of functions, in that the Division of Legal Services and Compliance serves each board by providing investigative and prosecutorial staff, but ultimately each board’s designee (the case advisor) decides what cases will be prosecuted, and whether a respondent will be disciplined; the boards have separate legal counsel from another unit of the Legal Services and Compliance Division. The boards’ designees (the case advisors) offer their guidance in the investigative stage, and unfair prejudice is prevented by barring that advisor from the room when contested decisions are made on that case. The case advisor is assigned by the process selected by each board: some boards assign cases by expertise, others on a rotating basis. An effort is made to avoid assigning someone who could be considered a direct competitor, or who have some other conflict of interest. Occupations which are directly regulated by the department do not have boards, and therefore do not have case advisors. Also, the social work, professional counselor, and marriage and family therapist cases do not have case advisors, because the size of each of these boards (four or five members each) is such that removing a case advisor from the ultimate process in a contested case could result in an insufficient number of votes to impose discipline, if any other member is absent or is disqualified by conflict of interest, or there is a vacancy. An affirmative vote of two thirds of the membership of a board is required before a suspension or revocation can be imposed, and the department has taken the position that that means two thirds of the authorized membership, even if there are vacancies. Thus, in a board with four members, that would require three affirmative votes. Next time, I will talk about how the staff proceeds with their investigations. 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.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 4
By Attorney Arthur Thexton, Of Counsel
Part 4: The Investigation Process of the Wisconsin Department of Safety and Professional Services
In my last blog, I talked about the role of the case advisor in the process of handling complaints. This time, I will talk about how the staff proceeds with their investigations.
Investigators are the Division’s detectives. They gather the appropriate documentary records and evidence, interview the persons involved and any witnesses. They also obtain copies of depositions or other materials generated in any lawsuits which have been initiated between the parties, and in general obtain any relevant information bearing on the case. During the process, they can and do seek the advice of the prosecuting attorney assigned, and the case advisor. On occasion, the investigators conduct surveillance and undercover operations, where they pose as clients or patients. The Department may issue investigative subpoenas under Wis. Stat. § 440.03(4). Administrative search warrants are also available in Pharmacy Examining Board cases, under Wis. Stat. § 961.52, but are very rarely used. Some boards have express rules requiring their licensees to cooperate with investigations, others do not. The Medical Examining Board has authority to order its licensees to submit to physical, mental, and professional competency examinations during the investigative stage, Wis. Stat. § 448.02(3)(a). The investigators do not have traditional law enforcement powers such as arrest, although those assigned to Pharmacy Examining Board cases could be granted such powers under Wis. Stat. § 961.51(1), if that board chose. The Division's investigators carry official photo identification cards, and police-style badges, with them whenever they go out into the field, and have business cards.
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.
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.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 7
By Attorney Arthur Thexton, Of Counsel
Part 7: What Happens During the Administrative Litigation Process with the Wisconsin Department of Safety and Professional Services?
Last time, I talked about how cases are handled once the investigation is complete. This blog will talk about the administrative litigation process.
If there is no agreement (or if none is to be offered), the prosecuting attorney hires whatever experts are needed. The Department’s current policy is to pay no more than $125/hr for experts, including physicians; rates which are more token than substantive. Experts serve because they accept the proposition that part of being a professional is participating in policing the profession. Occasionally an out-of-state or nationally known expert is retained at a higher fee. After their opinions are received a complaint is prepared or (if the opinion is unfavorable) the case is closed or (in rare cases) another expert is consulted. If a complaint is to be issued, the Division's prosecuting attorneys simply issue the complaint by signing it, as an assistant district attorney would do in a criminal case. In cases involving the Medical Examining Board and Podiatry Examining Board only, the complaint is prepared, and then voted on at the next board meeting, under Wis. Stat. § 448.02(3)(b) or 448.675(1)(b), before it is issued.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 8
By Attorney Arthur Thexton, Of Counsel
Part 8: How Does the Hearing With the Wisconsin Department of Safety and Professional Services Actually Proceed?
Last time, I talked about formal prosecution and the pre-hearing process; now I will talk about the actual formal hearing, in front of the administrative law judge, and the post-hearing process.
Hearing and Review When a case is not settled, it is heard on its merits (what most lawyers would call "tried") in a hearing room in the Department's building in Madison. The Department has made a policy decision not to hold hearings outside of its Madison office except in the most exceptional cases (such as physical inability of a witness to travel, see Wis. Adm. Code § SPS 2.15(8)). Hearings are generally reported by a court reporter. Transcripts are prepared in all contested cases, and typically the ALJ will require briefs after the filing of the transcript. The burden of proof is the ordinary civil standard, Wis. Stat. § 440.20(3). The ALJ makes a written proposal of findings of fact, conclusions of law, and disciplinary order, together with a narrative opinion. This may be as much as several months after the hearing, depending on the complexity of the case and the workload of the ALJ. The proposed decision will be served, together with an order setting time limits for "objecting" to the proposed decision.
An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 9
By Attorney Arthur Thexton, Of Counsel
Part 9: Final Thoughts on The Disciplinary Process
Last time, I talked about what goes on during and after a hearing; here are some final thoughts about resources, or the lack thereof.
The Department does not maintain any kind of digest or other research aid for practitioners. Once or twice a year some boards issue an electronic newsletter (the “Regulatory Digest”) which contains information about the profession, licensing changes, fee updates, and (in most cases) a short summary of disciplinary actions taken since the last newsletter; these are posted on the Department’s website. The Division of Legal Services and Compliance maintains paper files of all disciplinary decisions made by each board and by the Secretary. These files are public records. Any person may come read, for example, all the Chiropractic Examining Board decisions for the past 1 or 5 or 10 years. Cases since 1970 are also posted on the Department’s website, dsps.wi.gov, and they can be searched using Google.
GRGB's Frank Gimbel Provides Insight on Sandusky Trial
The groundbreaking trial of former Assistant Penn State Football Coach, Jerry Sandusky is currently underway in Pennsylvania. This trial is viewed as a defining case in situations of sexual abuse not only because of the celebrity status of Sandusky, but also because the victims will be identified throughout the course of the proceedings. Sandusky faces 52 counts of sexual abuse to young boys.
Gimbel, Reilly, Guerin & Brown, LLP Attorney, Frank Gimbel, recently spoke to WITI-TV6 regarding the unique and complicated aspects of this trial from a defense standpoint.
Understanding Your Rights - 5 Things to Know about Product Liability Cases
Selling a product on the open market comes with a great deal of responsibility and disclosure on the part of a manufacturer and / or retailer. As a consumer, you expect the products you purchase to be safe for you and your family. However, sometimes, through faulty testing or unforeseen issues, seemingly safe products can cause unforeseen injuries or even death. Knowing your rights after such an incident is often secondary to recovery, however it is important to understand who is responsible when and if such an event occurs. Here are five things to keep in mind if you or someone you know is injured or otherwise affected by faulty product.
1. Don't lose, throw away, or destroy the defective product! If you have been hurt as a result of a product defect, you should maintain the product in question for inspection, review and evidentiary purposes down the road. You do not want to find yourself in a situation where you are trying to prove your case about a defective product that cannot be produced to a jury.
