Tricks and Traps of the Administrative Law Process

My administrative law practice reaches most of Pennsylvania’s 26 licensing boards. Of the several veterinarians that I represent, professional misconduct allegations typically focus on incompetence, record keeping, professional conduct, and standard of care issues. However, many veterinarians attempt to handle these types of issues on their own, to their failure.  They think that one animal loving caregiver to another (the Veterinarian Board) will understand the issues involving a veterinarian practice.

On September 10, 2015 the Commonwealth Court decided the case of Hammad v. Bureau Of Professional And Occupational Affairs, 2015 PA. Commw. Lexus 386 (2015). In this case, Hammad attempted to handle his case without an attorney. Hammad did not understand the procedural rules and regulations of the administrative law practice.  He lost, suffering a six-month active license suspension, followed by 18 months probation, and a $5000 fine. Whether Hammad could afford counsel is not the issue. By representing himself he had a fool for a client and lost the case.

Hammad’s unfamiliarity with the legal procedures the Commonwealth of Pennsylvania’s 26 licensing boards follow is why he needed an attorney.  Most cases are initiated by a prosecutor filing a Rule To Show Cause with the Prothonotary. The Prothonotary or filing office for all boards, consistent with the General Rules Of Administrative Practice And Procedure – GRAPP, notifies the specific professional licensing board.  That Board then delegates the matter to a hearing officer to conduct the trial or disciplinary hearing.  The Prothonotary mails these notices to the licensee who is in trouble.

Every disciplinary petition, the document that comes in the mail twice, one regular and one certified, contains explicit and extensive due process notifications. Each document advises the licensee of their ability to participate in hearings, present evidence, present witnesses, bring an attorney, and testify on their own behalf. Every court continuance notice, rescheduling notice, and correspondence from the prosecutors contain references to GRAPP notifying the respondent professional of their administrative hearing rights.

At the hearing, the hearing officer makes evidentiary rulings, admits evidence into the record, and issues proposed findings of fact, conclusions of law in the form of a formal report for that full licensing board to review. This is the crucial Due Process hearing in which the evidence presented will be considered by the full licensing board in the form of the hearing officer’s proposed findings of fact and conclusion of law.  As such, the evidence that the hearing officer allows into the record, or does not, is the most important part of every disciplinary case.

Unfortunately, Hammad chose not to attend the hearing, object to witness testimony, present evidence on his own, or present proposed findings of fact and conclusions of law. This was an incorrect course of action. Hammad did not object to hearsay testimony, expert testimony, improperly authenticated records, and inadmissible exhibits. In Hammad’s absence, the hearing officer accepted into evidence (for the full board to review) the testimony of the veterinarian investigator, the animal owner, a veterinarian expert and any and all evidence the Commonwealth’s attorney chose to admit.

With everything into the record that the prosecutor wanted, the full Veterinarian Board decided the case solely upon the prosecutor’s evidence and nothing from Dr. Hammad.  Having chosen to not have an attorney and, to his downfall, not attend the hearing, he lost any opportunity to participate in the ultimate decision. Hammad expected an opportunity to present his case to the full board rather than a non-veterinarian trained hearing officer, which was incorrect.

As is typical with many medical or non-legal professionals that I represent, Hammad paid no attention to these statutory references. He incorrectly thought that he would have an opportunity to present his case to the full board rather then a hearing officer. My prior blog of July 17, 2015 specifically discuss the benefits of having attorney at these hearings. This case is just another example of this legal opinion.

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