Don’t dis the dissent

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Counsel’s column

While tempted to address the ongoing pandemic and its effects on the Association of Social Work Boards and its member boards, I have elected to lead an effort to return to the case-driven approach to regulatory content. This is not to downplay or ignore the important regulatory issues that are under added scrutiny stimulated by quarantines, access to mental health care, telehealth options, state-based licensure, and perceived (and real) barriers to licensure.

photograph of Dale Atkinson
Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB. He is also executive director of the Federation of Associations of Regulatory Boards (FARB).

The COVID-19 pandemic should and will lead to changes in government and regulatory boards. Change can be positive and should be constantly embraced. Now is the time for social work boards to consider changes and to act where it is within their control and where deemed appropriate. ASWB member boards must reflect upon their roles, their effectiveness and efficiencies, and the benefits of being part of ASWB.

One place for social work boards to start may be to consider how and when (if ever) to address the surrender of licensure. Surrender of licensure, as used for purposes of this article, involves a licensee agreeing to give up a license rather than facing the consequences of an investigation for alleged wrongdoing. The regulatory board accepts the surrender to avoid the costs and uncertainties of investigating and administratively prosecuting the complaint. This surrender does not carry with it an agreed order and consent agreement setting forth the important terms and conditions. If it did, this process would be referred to not as a surrender but as a consent/settlement agreement.

As is covered in detail in ASWB New Board Member Training sessions, surrender of licensure in lieu of discipline is a dangerous proposition. In short, acceptance of a licensure surrender does not allow an appropriate record to be established. In response to an offer of licensure surrender, the regulatory board’s counteroffer should be to sign a consent/settlement agreement that sets forth all the necessary conditions to protect the public and ensure that all parties understand the consequences of their actions. Consent/settlement agreements cover, at a minimum, essential information such as:

  • Admission of wrongdoing
  • Findings of fact
  • Conclusions of law
  • Burden of proof
  • Sanctions (with specificity)
  • Reinstatement rights (if any)
  • Publication rights of the board (board website, Facebook, ASWB Public Protection Database, National Practitioner Data Bank)

These elements are critical to allow for the public to access important information and to ensure that the individual’s potential applications for licensure in the future (with the sanctioning board and/or additional boards) will disclose this information. In the event of nondisclosure by the individual upon application, the regulatory board determining licensure eligibility will have access through public records to this valuable information and will be able to consider it during its deliberations.

Recently, the Supreme Court of Ohio in In re Leone (2020 Ohio LEXIS 1219) had an occasion to address the issue of voluntary surrender of licensure of an attorney who was under investigation for alleged wrongdoing. In the ordinary course of its business and as agreed to on numerous occasions, the court accepted the surrender of licensure. As additional information, and again as conducted in the ordinary course of business, the investigative file gathered was filed “under seal.” This means that the Supreme Court is unable to use or publicize the facts in relation to its ruling. Yet, as a matter of course, the court entered an order accepting the resignation of the respondent/attorney. The order also terminated the attorney’s rights and privileges of practice, prohibited the practice of law, limited certain law-related employment, allowed the surrender of the law license, and required reimbursement of funds paid from the Lawyers’ Fund for Client Protection.

Of interest in this published opinion is the dissent filed in response to the majority ruling. In a poignant missive, the dissenting judge noted that the file was under seal and thus unable to be referenced for purposes of his opinion. Rather than challenging the specific ruling, the dissenting judge chided the system. First, the judge reminded the majority of the role of the Supreme Court as an entity charged with determining an individual’s admission to and removal from the practice of law in the interest of public/consumer protection. The judge noted that the court on average accepted 15 resignations per year and that such a practice is troubling because acceptance of resignations was, in part, caused by problems within the system and control of the court. Specifically, the Ohio Constitution grants full authority to the court, including how complaints will be adjudicated.

The dissenting judge continued arguing that while resignations protect the public because the respondent is no longer able to practice, they lack transparency to the public. As such, resignations with discipline pending “are the epitome of antithetical examples that are contrary to the concept that state government should be as transparent as reasonably possible.” Using a cost-benefit analogy, the judge used the potential for criminal activity to be uncovered in the investigation. Even if the information was turned over to law enforcement, he stated, the low priority may not result in prosecution. Under this scenario, a resigning attorney could simply “move on to some other occupation and the public would never know the [previous] conduct.”

The dissenting judge also noted the inefficiencies of the system created by the court. On average, a typical case to the Ohio Supreme Court takes almost 1,000 days from complaint to recommendation. Because the system takes too long, the court accepts resignations as a means of closure. The judge further referenced the relief fund, which has reimbursed poorly treated clients almost US$24 million since its inception in 1985. But, he noted, the current system does not permit the court to condition acceptance on restitution being made to the harmed client(s). Because the court cannot consider resigning lawyers’ financial status and pending restitution petitions as part of the acceptance proceedings, it is forced to make decisions without all relevant information.

Finally, the dissenting judge referenced the cost savings attributable to the resignation. Many of the resignation cases with discipline pending have matriculated through the investigation, preliminary recommendations, and consideration by the commission. These eleventh-hour resignations come after the use of vast resources and therefore do not result in monetary savings. Should resignations occur earlier in the process, savings would be realized—but at what cost to the public, he argues. In the end, the dissenting judge invites his colleagues to revisit the policies and procedures for adjudicating complaints and to consider the lack of transparency to the public.

Taking these points to the social work regulatory arena, ASWB member boards should consider:

What aspects of the disciplinary process, including investigations, are subject to their control
What added efficiencies in investigations and ultimate resolution can be addressed and improved
Policy makers, elected officials, and the legislative and executive branches of government will continue to scrutinize efficiencies of board operations. Whether fair or not, the average number of days from complaint to resolution will be reviewed. This information is important not only now; it is always important and should be made a part of the record/minutes of every board meeting.

Social work boards should always be prepared for sunset reviews, whether required by law or not. Furthermore, economies of scale through collective wisdom and implementation of programs common to all or most member boards can and are being developed and implemented through ASWB. Boards should take advantage of these programs and access to information. While individual states and their boards are authorized to act independently of one another, collective programs and wisdom provide added efficiencies and ultimately substantiate state-based regulation.