Missouri Professional Licensing Attorney Danielle Sanger Explains Issues Surrounding Fifth Amendment Self Incrimination

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Professionals sometimes come to me with questions about “pleading the Fifth” in their hearings before licensing boards in Missouri. This concept comes into play when testifying truthfully might subject the testifier to criminal charges. While the U.S. Constitution guarantees all citizens the right to protect themselves from self-incrimination, Fifth Amendment protections are not a panacea. Deciding whether or not to testify is a complex decision and should not be made lightly. If you are even thinking about exerting your Fifth Amendment rights, you must seek expert legal help immediately.

If you are a professional in Missouri facing an investigation, call attorney Sanger immediately at 785-979-4353 to schedule a free consultation. Your career, reputation, and livelihood are at risk, and the challenge facing you is one you cannot work your way through this alone.

The Fifth Amendment

The Fifth Amendment of the United States Constitution guarantees that a person cannot be forced to testify against themselves in a criminal matter. Basically, a prosecutor cannot call a defendant to the witness stand and ask him or her whether they committed a crime. Importantly, a jury or court cannot hold that decision to remain silent against a defendant.

A hearing before a licensing board is not a criminal trial, however. While not a criminal prosecution, the United States Supreme Court held in Lefkowitz v. Turley, 414 US 70 (1973), that a person cannot be forced to testify in a civil matter such as a licensing hearing when the testimony could later incriminate them criminally:

A witness’ privilege against self-incrimination `not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’

 

Accordingly, you can “plead the Fifth” in a Missouri licensing hearing, meaning that you can refuse to testify. But is that a good idea?

Implications of Pleading the Fifth in Missouri

Remember, when you plead the Fifth, you are saying that your testimony may implicate you in a crime. While that tactic may be a wise one to avoid criminal prosecution, it is likely to be held against you in a licensing case.  That is a significant difference between a criminal and civil proceeding; your silence cannot be held against you in a criminal proceeding, but a civil proceeding such as a licensing board hearing can draw a negative inference from your refusal to testify.

Imagine you are a nurse and are alleged to have distributed opioids to family members illegally. In your licensing hearing, it would be wise to plead the Fifth Amendment to avoid serious criminal charges related to drug distribution. That said, in a civil matter, your decision to plead the Fifth may be used against you and will likely be taken as an admission by the licensing board. This adverse inference by the licensing board will likely cost you your license. Accordingly, taking the Fifth is a good way to avoid criminal prosecution, but is a strategy that will likely lead to negative consequences in the licensing context. It is never a decision to make lightly or without the help of experienced licensing counsel.

Contact an Experienced Kansas and Missouri Licensing Attorney Now

If you are a professional facing criminal prosecution, you are likely also in jeopardy of losing your professional license.  Whether it is a medical, counseling, nursing, accounting, veterinary or any other type of license, an inquiry from a licensing board means that your livelihood is in jeopardy. Contacting an experienced licensing attorney to help you through this process and can mean the difference between getting back to helping your patients or clients and losing your career forever.

Kansas and Missouri professional licensing attorney Danielle Sanger is prepared to advocate for your best interests and defend you. Call Attorney Sanger at 785-979-4353 to schedule a free consultation with an attorney experienced dealing with licensing issues.

 

 

Kansas and Missouri Professional Licensing Attorney Danielle Sanger Explains: My Employer Says That If I Resign They Won’t Report Me to the Board?

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I have seen this scene play out over and over—a dejected nurse sitting in my office holding a crumpled notice of investigation clenched in her hand. The feeling she feels is not only dejection but also betrayal. The sense of betrayal arises from the fact that the nurse’s former employer allowed her to resign and promised, in exchange for that resignation, that they would not report her to the board of nursing.

Nurses in that situation often wonder if the hospital’s former promise can be enforced. They wonder if they made a mistake ever believing that promise. She needs help with old allegations coming back to haunt her, maybe after she’s found new employment.

If you are a professional in Kansas or Missouri facing an allegation of misconduct or an investigation, call attorney Sanger today at 785-979-4353 to schedule a free consultation. Your career, reputation, and livelihood are at risk, and the challenge facing you is one you cannot work your way through this alone.

Is My Employer’s Promise of Silence Enforceable?

If your employer offers to allow you to resign your position when allegations of misconduct arise, they often want you to decide right then and there. What should you do in that situation? My strongest recommendation is that you contact experienced licensing counsel immediately to get the perspective of someone who has seen this situation play out many times.

That is a difficult question, but here are some considerations to think about if you are offered. First, if the allegations against you are significant and based on strong evidence, it is unlikely that your employer can ignore them and let you resign. In this scenario, it may be better to double down and refuse to resign. That may seem counterintuitive, but it will likely have one of two results. First, it may expose that your employer just wanted to get rid of you and did not really have enough evidence to support a misconduct allegation. On the other hand, it may result in your employer filing a report of misconduct; while that is not a good outcome, it is better to deal with it while memories are fresh and you can organize a defense with the help of counsel.

In reality, unless your employer is willing to contractually sign away their ability to bring a claim against you, it is unlikely that you will be able to enforce a verbal promise not to report your conduct. While the people making that promise may be trustworthy, they may be replaced, and it will be difficult, if not impossible, to bind them by your informal agreement. Your employer is unlikely willing to sign a contract stating that they will not report your conduct. Accordingly, their promise really means nothing.

The other reality is that even if your employer upholds their side of the bargain and does not report you, someone else might. A disgruntled colleague, a former patient, or anyone else can still report what they believe is your misconduct. Accordingly, a promise from your employer—even an enforceable one—is not a foolproof way to prevent allegations from arising later. You should keep in mind that neither the Kansas nor Missouri boards of nursing care who makes an allegation. While you may have had an agreement with a prior employer, an allegation made by a colleague will serve the same purpose.

What If Old Allegations Arise After I Resigned?

What should you tell your new employer, if anything, if old allegations arise regarding your former place of employment? My recommendation is, after speaking with licensing counsel, to be forthcoming with your current employer. I have seen new employers be understanding when a high performing employee comes to them immediately with allegations arising from prior employment. If you take the opposite route and wait for them to be blindsided, their reaction is unlikely to be a positive one.

Contact an Experienced Kansas and Missouri Licensing Attorney Now

You have worked too hard to attain your professional license.  Contacting an experienced licensing attorney to help you through the misconduct hearing process and can mean the difference between getting back to helping your patients and losing your career forever.

Kansas and Missouri professional licensing attorney Danielle Sanger is prepared to advocate for your best interests and defend you. Call Attorney Sanger at 785-979-4353 to schedule a free consultation with an attorney experienced dealing with nursing licensing issues.

 

Kansas and Missouri Professional Licensing Attorney Danielle Sanger Explains Why You Need an Attorney at Your Licensing Board Hearing

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The United States Constitution prohibits the state from taking your property without “due process,” which means that the state has to legally prove its case after giving you a chance to review the evidence against you and defend yourself.  This due process requirement is not only in place when the state wants to take physical property like land; it also applies to other possessions such as your professional license.

The state should have to struggle to take something as valuable as your license, but too many professionals fail to attain the help of an experienced licensing attorney when they receive a notice of investigation or violation.  This failure ends up making the state’s job far too easy. Because I get so many calls asking me whether it is “worth it” to hire an attorney, I wrote the following blog post to explain the value of having experienced counsel by your side.

If you are a professional in Kansas or Missouri facing an investigation that jeopardizes your professional license, call attorney Sanger today at 785-979-4353 to schedule a free consultation. Your career, reputation, and livelihood are at risk, and the challenge facing you is one you cannot work your way through this alone.

Misperceptions About Hiring an Attorney

Some people have the misperception that hiring an attorney will somehow make them look guilty. This could not be further from the truth. In fact, state licensing boards know that a skilled licensing attorney can actually help streamline the case, expose flaws in the state’s case, and resolve the case more efficiently. A licensing attorney often presents an alternative set of facts that demonstrate that the state’s version of events may be inaccurate.

When a person is unrepresented, the state board often assumes that he or she must not have a defense. This leads to the very conclusion that the person wanted to avoid, that they are guilty. When a person is not represented by counsel, the licensing board views the case as “shooting fish in a barrel.” Do not end up like a dead fish!

Attaining and Protecting Information

An experienced licensing attorney knows what evidence to present, what to withhold, and what to seek from the licensing board. That knowledge stems from having numerous cases before the board seeking to discipline the client. You are already at a disadvantage if you lack that sort of experience. You are also at a disadvantage if you do not know how much information to divulge. Professionals under investigation often think they will gain favor with the licensing board by providing them all of the information they are seeking, even damaging information. That strategy is never successful, as a layperson will often end up making the state board’s case for them by providing incriminating information in an effort to be “helpful.”

A skilled licensing defense attorney can advise you regarding which information to share and which information you may legally withhold. Differentiating between the information to share and to withhold may mean the difference between keeping and losing your license, and only an attorney with experience before your Missouri or Kansas licensing board can provide you with that sort of guidance.

Negotiating a Positive Outcome

Attorneys are trained negotiators. Sometimes a “good” outcome is a suspension instead of a license revocation, while other times, a complete dismissal of the allegations is the required. Either way, only a licensing attorney that has represented multiple clients before your licensing board can adequately advise you regarding what is a fair outcome in your case. Trying to negotiate on your own behalf is a sure way to get a poor result.

Contact an Experienced Kansas and Missouri Licensing Attorney Now

You have worked too hard to attain your professional license.  Whether it is a medical, counseling, nursing, accounting, veterinary or any other type of license, an inquiry from a licensing board means that your livelihood is in jeopardy. Contacting an experienced licensing attorney to help you through this process and can mean the difference between getting back to helping your patients or clients and losing your career forever.

Kansas and Missouri professional licensing attorney Danielle Sanger is prepared to advocate for your best interests and defend you. Call Attorney Sanger at 785-979-4353 to schedule a free consultation with an attorney experienced dealing with licensing issues.

 

 

Missouri Professional Licensing Attorney Danielle Sanger Describes the Most Common Kansas Child Care Provider Licensing Issues

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Clients frequently come to me with issues regarding their child care licensing issues. Whether it is because they accidentally hired an employee with a criminal past, they are alleged to have endangered a child, or their facility is understaffed, any one of these allegations can end your career as a childcare provider.

If you are a professional in Missouri facing an investigation, call attorney Sanger immediately at 785-979-4353 to schedule a free consultation. Your career, reputation, and livelihood are at risk, and the challenge facing you is one you cannot work your way through this alone.

Child Care Providers in Kansas: The Law

I attached a link to the Kansas statutes and regulations that dictate how child care licensing works in Kansas. For the purposes of this post, however, here are are all of the reasons that a person or business’s childcare license could be revoked:

K.S.A. 65-523. Grounds for limitation, modification or suspension of license or temporary permit.

The secretary may limit, modify or suspend any license or temporary permit issued under the provisions of K.S.A. 65-501 through 65-516, and amendments thereto, upon any of the following grounds and in the manner provided in this act:

  • Violation by the licensee or holder of a temporary permit of any provision of this act or of the rules and regulations promulgated under this act;
  • aiding, abetting or permitting the violating of any provision of this act or of the rules and regulations promulgated under this act;
  • conduct in the operation or maintenance, or both the operation and maintenance, of a maternity center or child care facility which is inimical to the health, safety or welfare of any woman or child receiving services from such maternity center or child care facility, or the public;
  • the conviction of a licensee or holder of a temporary permit, at any time during licensure or during the time the temporary permit is in effect, of crimes as defined in K.S.A. 65- 516, and amendments thereto; and
  • a third or subsequent violation by the licensee or holder of a temporary permit of subsection (b) of K.S.A. 65-530, and amendments thereto.

Below I will go through the most common types of allegations that I see.

“Conduct Inimical”

To be “inimical” means to be the enemy of something. As used above, it means that it is alleged that a daycare provider is acting in a way that is the enemy of the children’s health, safety, or welfare. This is a broad, subjective category, but I most commonly see allegations involving hitting children, unsanitary or unsafe facilities, or allowing staff to behave inappropriately in front of children in their care. Sadly, given our nation’s opioid epidemic, I frequently see cases where it is alleged that childcare providers are under the influence of opioids while caring for children.

Criminal and Other Conduct

Being convicted of a crime may not mean the loss of your childcare license, but either having a felony conviction or employing someone who does is a common reason for revocation. Any sort of felony sex offense, drug offense, or assault, particularly domestic violence, is a bar to employment at a child care facility, even if it was committed as a child. Employing felons may also trigger a loss of license, so I always advise thorough background checks before any hire. Additionally, Kansas does not allow some people who require a conservator or cannot be legally responsible for themselves, such as people with significant mental disabilities, from working at a child care center. Kansas also people who have had their children taken from them due to abuse or neglect to work at child care centers.

Staffing Ratios and Capacity

As a childcare facility, you should know the required ratios of staff to children. Unfortunately, these license revocation issues often arise after an accident, when the State of Kansas revokes a license because there was, allegedly, inadequate staffing to prevent the accident. Staffing ratios depend on the age and number of children in your facility, know them.

If you are a childcare provider facing license revocation, your livelihood is in jeopardy. Contacting an experienced licensing attorney to help you through this process and can mean the difference between getting back to working with children and losing your career forever.

Kansas and Missouri professional licensing attorney Danielle Sanger is prepared to advocate for your best interests and defend you. Call Attorney Sanger at 785-979-4353 to schedule a free consultation with an attorney experienced dealing with licensing issues.