Missouri Professional Licensing Defense Attorney Danielle Sanger Discusses How You Can Appeal an Adverse Licensing Decision to a Judge

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You have a right as a party aggrieved by a decision rendered by the Missouri Administrative Hearings Commission, or AHC, to a judge sitting in a Missouri Circuit Court. Appealing to a judge is not done automatically. You must preserve your right to appeal, and you will lose out entirely if you fail to take all necessary actions to protect your appellate rights. Appealing the decision from the AHC to a judge in the Circuit Court is a highly technical procedure replete with potential pitfalls. Consequently, it is vital to the success of your claim, practicing your chosen profession or occupation to protect your right of appeal, and the preservation of your way of life to align yourself with a highly motivated, well-respected, and knowledgeable Missouri professional licensing attorney or you could lose out on your only opportunity to have a judge rule on your professional licensing appeal.

Appeals to a judge from the AHC are governed by statute. Missouri Revisor of Statutes or RSMo for short, sections 536.100 to 536.160 delineate the procedural and substantive rights afforded to a person who wishes to appeal an adverse decision of the AHC to a judge sitting in the Circuit Court. The statute confers jurisdiction of all AHC appeals in the Circuit Courts of Missouri. The statute requires the person appealing the decision of the AHC to the Circuit Court to file a complaint in the court within 30 days from the mailing by the agency to the appellant of the final order. Missing that deadline will terminate the appellant’s ability to have his or her case decided by a judge.

As with any administrative ruling, the licensee must exhaust all of his or her opportunities to obtain the requested relief before the AHC. Failing to exhaust all available avenues of administrative review is grounds for a dismissal of the appeal to a judge. The licensee need not ask for a rehearing or reconsideration of the AHC’s final decision before appealing to a Circuit Court judge unless the specific circumstances of the case warrant such a motion.

The venue of the appeal is an important consideration for a licensee who wants to appeal the AHC’s decision to a judge. All appeals from an adverse decision rendered by the AHC must be heard in Circuit Court. The presumptive venue for AHC appeals is the Cole County Circuit Court. However, a licensee can file an appeal in any Circuit Court sitting in the county in which the licensee resides. The licensee has the option of opting to file in the Cole County Circuit Court or in the Circuit Court of the county in which the licensee resides.

Understanding what a judge has the authority to review and decide on appeal is helpful. The judge does not hear the entire case all over again. The judge receives a copy of the proceedings that transpired before the AHC, called the “record.” The judge next analyzes the record, bearing in mind the judge has limited scope for review. The judge will examine the record for any failures of the AHC’s decision and procedure employed during the hearing for abuse of discretion, arbitrary and capricious rulings, the findings are unsupported by the facts established by the record, unconstitutional action by the AHC, the AHC exceeded its statutory authority, or the entire process was unfair to the appellant.

Missouri law leaves a slight window open for a judge to hear the entire case again, which is called de novo review. The judge has the authority to hear an AHC appeal de novo only when the appeal centers around the AHC’s application of the law to the facts of the case. The judge does not have the authority to conduct additional fact-finding.

Any person aggrieved by a Circuit Court judge’s decision has the same appellate rights as any civil litigant in Missouri.

Complicated Rules Require Expert-Level Representation

Missouri Professional Licensing Defense Attorney Danielle Sanger is ready to protect your rights if you are facing professional discipline in Missouri. Call Attorney Sanger today at 785-979-4353 to rely upon for expert legal advice.

Kansas Professional Licensing Attorney Answers the Question: “Can I Appeal a State Agency’s Adverse Action Against Me to a Judge?”

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The state of Kansas uses a two-tiered approach to protecting employee’s rights when a state licensing board takes adverse action against a licensee. The first tier of protection for a professional licensee begins at the agency level with a hearing before the relevant licensing board. A licensing board cannot take adverse action against a professional or occupational licensee without first giving notice to the licensee that a charge or complaint has been sought against him or her for disciplinary action. Then, the licensee has the right to learn about the allegations and investigate the claims made against him or her. The professional or occupational licensee next has the right to a contested hearing on the merits of the case in a hearing before the state agency.

It is important to remember that the licensee always has the right to retain counsel at any stage of the proceedings. The right to counsel he or she chooses is a fundamental right of an accused in legal proceedings in which an employee is threatened by governmental action that could take away a property right, such as a professional license.

The procedure of the hearing conducted at the state agency level is governed by Kansas’ Administrative Procedure Act. At the agency level, the administrative agency has the burden to prove the charges against the professional or occupational licensee.  The licensee has the right to defend the case against him or her by cross-examining witnesses, calling witnesses to testify on his or her behalf, and introducing evidence favorable to him or her.

The licensee has the right to appeal an adverse decision to a judge sitting in a Kansas court. The Kansas Judicial Review Act or KJRA governs the procedure that the licensee must follow when appealing an agency decision to a judge. The licensee must resort to all of the remedies available to him or her under the Kansas Administrative Procedure Act before seeking judicial review of the agency’s adverse action. In other words, appeals to a judge could only be made after the licensing board issues a final decision or order. However, there are some instances when the petitioner must ask the licensing board to reconsider a decision before taking leave to appeal the case to a judge.

The KJRA gives the licensee an opportunity to appeal a decision to a judge before the agency issues a final decision on a limited basis. The petitioner must satisfy two conditions before a judge accepts a case for non-final judicial review. The licensee needs to demonstrate that he or she will likely qualify for judicial review when the final order issues and that postponing judicial review until the end of the case will create irreparable harm.

Judicial review starts when the aggrieved person files a complaint in the district court and must be filed within 30 days from when the agency issues its final order. The KJRA generally allows the judge to review only those issues ruled upon by the licensing board or state agency. Notwithstanding, the KJRA will allow the petitioner to argue issues not argued before the licensing board in limited circumstances. Therefore, the judge will review the record of the case as argued before the licensing board and make a decision whether the licensing board’s decision was not based in fact adduced during the licensing board hearing, misapplication of the law by the licensing board, or procedure used by the licensing board was unconstitutional.

Turn to Expert Help When You are Facing Professional Discipline

Kansas professional licensing defense attorney Danielle Sanger is dedicated to preserving a professional licensee’s ability to work in her or her chosen profession or occupation. Attorney Sanger has dedicated her career to making sure that each licensee gets its day in court. She is fully invested in each client because she understands how devastating losing a professional or occupational license is to the licensee and the licensee’s family. Call  Kansas Professional Licensing Attorney Danielle Sanger today at 785-979-4353.

What Happens if you are a Professional Licensee Charged with a Crime in Kansas or Missouri?

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Professional and occupational license holders in Kansas and Missouri have a duty to hold themselves out as exemplary citizens in the community by virtue of their professional status. Professional and occupational licensees have a heightened responsibility, perhaps exceeding that of the average worker, because their chosen profession places them in a position in which people must rely upon their expertise, knowledge, and understanding in their profession or occupation. Additionally, the state issuing the professional or occupational license has a compelling interest to make sure that the public is safe. Therefore, most licensing boards have the statutory authority to issue professional discipline for violations of the criminal law. Accordingly, professional and occupational licensees must self-report to their respective licensing boards if they have been charged with a crime, irrespective of whether the charges arise within the jurisdiction in which they hold a license or in another state.

Not every individual charged with criminal behavior is a career criminal. Perhaps one of the charges with which professional and occupational licensees are charged is driving under the influence. Although driving under the influence of either alcohol or drugs is dangerous behavior and could call into question the judgment of the licensee because such a crime is inexcusable and utterly avoidable, police charge people from all walks of life with DUI, no matter the profession. Facing a DUI charge, for example, is embarrassing for the professional licensee, and could have a deleterious effect on the licensee’s ability to perform their job, due to license loss, the potential for incarceration, and the court-ordered rehabilitation, not to mention the damage to the reputation the licensee might experience. Notwithstanding, a professional or occupational licensee could recover professionally from a DUI charge if the licensee conducts himself or herself appropriately.

A person should conduct themselves appropriately with law enforcement officials at all times. Technological advances allow the police and by-standers to record interactions between police and the citizenry. Therefore, everyone, but especially professional and occupational licensees, must be respectful of the police, especially if the licensee does not agree with the officer’s decision to interact with him or her. The licensee should be aware that any recordings made of the interaction with police might be reviewed by a state licensing board and considered by the board when deciding whether the licensee must receive professional discipline.

Being polite and cooperative with the police does not mean the licensee must forfeit his or her rights as a person charged with a crime. On the contrary, professional and occupational licensees enjoy the same constitutional and statutory protections as every other person in Kansas or Missouri. Consequently, the licensee may wish his or her right to remain silent and not speak with police without counsel present or exercise a right to a phone call, for example. However, the licensee can be firm but polite when asserting his or her rights.

The licensee must be aware that speaking to the police without an attorney present is not advisable. Most people know that whatever he or she says to police could be admitted in evidence against him or her at a criminal trial. The admissibility of the statement in evidence at a criminal trial is subject to strict constitutional and statutory strictures. However, the body adjudicating professional disciplinary hearings might be able to consider those statements even though they were not admitted in a criminal trial. Therefore, the licensee should seek the advice of competent counsel before speaking to the police. Furthermore, licensees must contact an attorney as soon as possible after being charged with a crime to immediately start defending against the criminal allegations and allegations of professional misconduct.

Kansas and Missouri Professional Licensing Attorney Danielle Sanger: Protecting the Rights of Professional and Occupational Licensees

Missouri Professional Licensing Attorney Danielle Sanger works closely with criminal defense attorneys to protect you and your family from the fallout caused by one ill-advised decision. Contact Attorney Danielle Sanger today at 785-979-4353 to find out more.

 

What Procedural and Substantive Rights Does a Nurse Have Before the Kansas State Board of Nursing?

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The Kansas State Board of Nursing, or abbreviated as KSBN, is the sole licensing authority in the state of Kansas for all nurses. Thus, every person who wishes to practice nursing as a registered nurse, a licensed practicing nurse, and licensed mental health technicians. The stated mission of the KSBN is to protect the public. Accordingly, the KSBN admits nurses to practice in Kansas who meet strict educational, practical, and character requirements. Additionally, the KSBN oversees the entire nursing profession and possess the authority to issue professional discipline against a licensee.

The KSBN is a state agency and, as such, is an arm of the state government of Kansas. Accordingly, the KSBN cannot act arbitrarily when rendering professional discipline. Instead, the KSBN is bound to follow procedural rules as well as substantive laws that protect the licensee from governmental overreaching and violating the licensee’s due process rights. Inasmuch as the KSBN has the duty to protect the public from incompetent, unscrupulous, or unhealthy nurses, the KSBM has a similar obligation to follow the Kansas Administrative Procedure Act, along with statutory and constitutional laws that protect the licensee.

Principles of U.S. constitutional law dictate that a professional or occupational license is a property right. In that sense, a professional or occupational license is analogous to real property that the government can take by eminent domain but cannot do so unless the government adequately and fairly compensates the landowner. Just as the landowner who is subject to a land taking by the government, a nurse in Kansas must receive notice of a violation and an opportunity to be heard in opposition to the allegations advanced by the KSBN.

The KSBN has the authority to issue notice to a nurse suspected of violating the Kansas Nurse Practice Act in one of two ways. First, the KSBN may issue a “summary order.” A summary order provides the licensee with notice of the allegations and a sanction that the KSBN will impose. The licensee may accept the decision of the KBSN or request a hearing on the merits of the allegations. An assistant attorney general for Kansas will represent the state in the hearings process. Accordingly, the assistant attorney general may also bring charges against a licensee by serving the licensee with a petition that sets forth the pertinent factual allegations and a statement of the law upon which the KSBN will rely during the hearing.

The licensee has the absolute, inviolable right to hire counsel of her or his choice to represent her or him during the entire disciplinary process. The licensee’s attorney will review all of the legal pleadings and exchange discovery. Discovery is documentary evidence such as reports, photographs, and other documents, as well as statements made by the licensee during an investigation and statements from witnesses.

The nurse has the right to confront and cross-examine every person who testifies at the hearing. Each witness must testify in person, rather than by video conferencing or by submitting an affidavit. Otherwise, the nurse would not have a chance to cross-examine the witness in front of the hearings panel. The presiding authorities will review all of the evidence, make credibility determinations, and rulings of law in a written decision. Both parties may appeal from the panel’s decision to a judge.

The KSBN, in its decision, can announce a fine of up to $1,000.00 for a first offense, as well as censure, place conditions upon, suspend, or revoke a nursing license. Censure may be done publicly or privately. The KSBN and the nurse can enter an informal agree to resolve the professional disciplinary action without a formal hearing. Informal agreements center around raising awareness and educating the licensee rather than suspending the nurse from practice.

Experience is Key

If you are a nurse in Kansas under investigation or facing allegations of a violation of the Kansas Nurse Practice Act, you need the experience, expertise, and skill of Kansas Professional Discipline Attorney Danielle Sanger in your corner to protect your livelihood. Call Attorney Sanger today at 785-979-4353 today.