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Administrative Law
Question: I have been contacted by my
licensing board for an unknown reason. Do I need to employ legal
representation at this stage?
Answer: Absolutely. Ultimately, many license
suspensions are based mainly on oral or written responses to questions
furnished by licensees in the early stages of an investigation. Many
licensees believe that they can convince the investigators and the
board that there are no problems without the help of legal
representation.
Question: Is my personal attorney able to
handle the procedures associated with licensure defense, or are there
attorneys who handle these cases on a regular basis?
Answer: If your personal attorney has not
handled administrative licensing board hearings in the past, he or she
should contact an attorney who has handled at least two full board
hearings before you, or your attorney, have any discussions with the
licensing board representatives.
Question: I have determined that I am under
investigation by my licensing board. What should I expect from this and
what steps should I be proactively taking?
Answer: As soon as you find out that any
activity is occurring regarding your license your attorney must contact
and interview everyone who could possibly be involved with the matter
or situation which is the subject of the investigation, in advance of
any formal action by the licensing board. After organizing
documentation and lining up anyone who has knowledge of the facts, your
attorney can then contact the Board to assist in concluding the
investigation with minimal exposure to you. Beware, however, that just
because the licensing board’s investigators have not contacted a
potential witness or discovered possible evidence does not mean that
they are not going to pursue the case. Many cases lie dormant for
considerable periods of time before picking up speed.
Question: My licensing board has offered me a
proposed settlement, and my attorney has advised me to accept it
because it’s the best opportunity that I have to keep my license.
Is this true?
Answer: Not necessarily. You need to know what
the law states regarding your involvement with the board and whether
the rules allow the proposed settlement, as it applies to your
circumstances. You need to know what agencies, insurance companies, and
databases will be notified of the settlement and how it will reflect
upon your licensure and your job in the future. Occasionally, the
settlement is harsher than the results of a full-scale evidentiary
hearing.
Question: I am preparing my initial or renewal
license application. I was convicted of a minor misdemeanor several
months ago. Does this need to be disclosed?
Answer: The only appropriate disclosure is
over-disclosure. Non-disclosure allegations are always publicly labeled
as fraudulent. An attorney should be consulted to interpret the
questions and answers, to be certain the answers do not violate any
rules. Errors in filling out initial applications or re-credentialing
forms are never tolerated by licensing boards.
Question: How proactive do I need to be about
my recent criminal conviction, in terms of dealing with my licensing
board?
Answer: Each agency has its own published
administrative rules. If immediate disclosure of the offense is
required by those administrative rules, then disclosure must occur
immediately after consulting with an attorney. Hesitating to act
regarding disclosure often results in serious complications. There is
no room for argument regarding whether the offense affects your
professional responsibilities. That is to be determined by the board,
not you.
Question: I received notice of a hearing
regarding my licensure and was previously unaware of any problems. What
should I do?
Answer: Immediately retain an experienced
attorney with administrative hearing experience. Your attorney can
request a continuance of the hearing date and gain time to prepare a
defense of the allegations. Your attorney can request copies of all of
the board’s investigative files and the complaint that prompted
the investigation.
Question: Some of my competitors have reported
me to my licensing board under false pretenses. Can they do this?
Won’t this just go away, because the allegations are not true?
Answer: Complaints made by competitors, while
in reality are unethical, are serious problems, because boards cannot
know which complaints are substantive and which are not. The boards
will conduct a complete investigation and make a final determination,
which often is a public record. Even if the initial complaint is not
true, the investigation can lead to discovery of other possible
professional violations. Each board inquiry should be treated the same,
regardless of how the complaint was raised.
Question: Can I sue my licensing board and the
state for making me defend myself, if the accusations are false?
Answer: Not likely. There has never been a
successful suit for damages against a state licensing agency in Iowa.
There are multiple levels of immunity for licensing boards, and the
assistant attorneys general who prosecute the cases. That is not to say
that it is impossible to proceed with a civil lawsuit, but, even with
appropriate proof and evidence, it is still extremely difficult and
costly. The courts are reluctant to limit the ability and authority of
each licensing board to carry out its duty to the general public.
Question: How often do licensing boards just
dismiss charges without detriment to a person’s license?
Answer: Boards close numerous complaint files
in the investigative stage without any action at all. However, once
formal charges have been filed, the cases are rarely dismissed without
a full hearing and determination. Legal representation at the earliest
stage increases the chances that a file can be closed without
disciplinary action against a licensee.
Question: An investigator for my licensing
board approached me with subpoenas for information. Do I have to give
it to the board?
Answer: Yes. Every licensee agrees, by
statute, to comply with any reasonable request for information,
documents, and materials deemed necessary by investigators to conduct
an investigation.
Question: I have been told in confidence that
an investigator for my licensing board has been asking questions about
me. What can I do about this?
Answer: Have an experienced attorney contact
the board and its investigator in an attempt to determine what is
prompting the investigation. Technically, the board does not have to
reveal any information until the filing of a formal complaint; however,
some boards will occasionally work with a licensee’s attorney
prior to that point. Only an attorney will be able to handle these
stages of the investigation for you. In some cases the attorney can
arrange for an informal appearance before the board to discuss the
legal issues and possibly avoid a public complaint being filed
Question: Are the costs associated with
defending my licensure worth it, considering that I don’t believe
the board will ever leave me alone, now that I’ve been in trouble?
Answer: Yes. A strong defense may limit the
exposure to any discipline you may face. Many professionals have
insurance policies that provide coverage for at least a portion of the
costs associated with the case, and you may as well take advantage of
that coverage. Too often, professionals will choose to simply retire,
instead of facing the uphill battle and stress associated with
defending against claimed violations. This is an unnecessary and
unrealistic choice. You can enjoy a continued and successful career, as
long as you stay focused and work diligently with your attorney to
manage your case.
Question: I had a hearing with a committee of
a board and lost, now what?
Answer: You will, or already have, received a
“proposed ruling”. It can be appealed to the full board but
there are different rules for each board regarding the details of the
appeal process. If after an appeal to the full board you are still not
satisfied with the results you may have legal grounds for an appeal to
District Court. Those decisions are only made after careful analysis of
the basis for the initial “proposed ruling” and the
relevant fact and law issues. Recent law changes by the legislature
have limited the appeal rights for some of the boards. The
administrative rules that empower each agency are continuously reviewed
by each board.
Employment Law
Question: What is
employment-at-will?
Answer: This is the assumed
contractual relationship between all employers and employees, if there
is nothing more to describe the relationship, such as a written
contract providing specific terms of employment. Employment-at-will
became the presumed employment relationship in Iowa and most states by
the end of the 19th century, in that it emphasizes efficiency in the
workforce, as opposed to individual fairness on a case-by-case basis.
At its most basic definition, employment-at-will means that you can
quit your job at any time, with or without giving a reason, good or
bad, and your employer cannot compel you to stay. On the other hand, it
means that your employer can fire you at any time, with tr without
giving a reason, good or bad.
Question: Are
there exceptions to employment-at-will?
Answer: Yes,
you and your employer are free to enter into a specific contract that
applies to your job. These are not common, but a classic example would
be a performance contract for an entertainer or an athlete that
promises specific payment, for specific services, for a specific period
of time. A more common example is non-specific contracts that apply to
large groups of employees. These contracts specify terms and
conditions, as well as how and when an employee can be disciplined or
terminated by an employer. Non-unionized employees sometimes have
contractual employment rights upon the attainment of some level of
service, such as merit-based governmental employment or academic
tenure.
Question: If people are
employed-at-will, do they still have legal rights in regard to their
jobs?
Answer: Though limited to specific
exceptions, the clear answer is "yes." Since the mid-1960s, federal and
state legislatures have passed laws preventing employment decisions
that are influenced by illegal discrimination. The types of
discrimination in the workplace that are not acceptable include
decisions based on race, gender, religion, national origin, age, or
disability. Recent legislation has also prohibited acts against
qualified employees on the basis of their illness, or a family member's
illness, that requires absence from employment for a limited period of
time. In addition to discrimination on the basis of a characteristic,
rights have also been created by the courts to protect employees who
have other legal rights and act upon them in the workplace. For
example, if you are injured at work and required to pursue worker's
compensation benefits, your employer cannot terminate you. Nor can an
employer terminate you for pursuing other rights, such as voting or
serving on a jury.
Question: What is sexual
harassment?
Answer: In addition to being
prevented from making employment decisions on the basis of gender, it
is also illegal for an employer to create, or allow to exist, a
day-to-day work environment that is hostile or degrading towards a
specific gender, usually female. The existence of such an environment
is determined on a case-by-case basis, but usually requires more than a
single or occasional remark, joke, or offensive action. An employer is
under an obligation to make reasonable attempts to prevent degrading
sexual actions or statements and to also encourage people to complain
about such occurrences without the fear of retaliation. Gender is the
most common form of sexual harassment, but it is not the only basis for
a hostile environment. Another kind of illegal harassment that is much
more clearly established and does not necessarily require several
occurrences is when an employer makes sexual advances in exchange for
promotion, job retention, or other workplace favors.
Question: Can an employer monitor an
employee's emails?
Answer: If you have an email account
that is provided by your employer, the answer is almost always "yes,"
even to the extent of the contents. An employer-provided email account
does not personally belong to you, but to your employer, and your
employer has an interest in its own property. If you maintain and pay
for your own email account, you have a privacy right to the contents of
that email, but not a right to use such email during business hours.
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