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

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.