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An Introduction to the Disciplinary Process of the Wisconsin Department of Safety and Professional Services - Part 3

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By Attorney Arthur Thexton, Of Counsel

Part 3: The Role of the Case Advisor for the Wisconsin Department of Safety and Professional Services

filesLast time, I talked about how complaints are screened before any decision is made to investigate them or not. This time, I will talk about the case advisor, a role which is unknown to most, but which is critical for the Department. Each and every case which is opened for investigation has a "case advisor" assigned to it. The case advisor is a member of the licensing board who will review the case, give advice to the investigator and prosecuting attorney, and discuss and approve the terms of any settlement that may be offered. The case advisor will then not participate or vote on the case, when it comes before the full board, unless the case is stipulated, in which case participation in voting is permitted. The purpose of the case advisor system is to allow the investigator and prosecuting attorney to have the benefit of the professional expertise of a practitioner, and the advice of a member of that board concerning both what is appropriate conduct for the profession and what sort of priorities the board has at the time. As a practical matter, the case advisor functions as the client, and determines whether the case will be closed, or discipline will be sought. Only in very rare cases will the prosecutor seek an outcome opposed by the case advisor. Our legislature has devised an inquisitorial system for regulating the professions, as have most states. The board is the body which (through Department staff) investigates the complaints, prosecutes them, sits in judgment, and issues the discipline. This is a different system from that used for criminal prosecution in this country, in which the judiciary is totally separate from the prosecution. To some, this may seem grossly unfair, but it is the choice that our legislature has made, and it has been repeatedly held constitutional. In order to prevent unfair prejudice, there is some administrative separation of functions, in that the Division of Legal Services and Compliance serves each board by providing investigative and prosecutorial staff, but ultimately each board’s designee (the case advisor) decides what cases will be prosecuted, and whether a respondent will be disciplined; the boards have separate legal counsel from another unit of the Legal Services and Compliance Division. The boards’ designees (the case advisors) offer their guidance in the investigative stage, and unfair prejudice is prevented by barring that advisor from the room when contested decisions are made on that case. The case advisor is assigned by the process selected by each board: some boards assign cases by expertise, others on a rotating basis. An effort is made to avoid assigning someone who could be considered a direct competitor, or who have some other conflict of interest. Occupations which are directly regulated by the department do not have boards, and therefore do not have case advisors. Also, the social work, professional counselor, and marriage and family therapist cases do not have case advisors, because the size of each of these boards (four or five members each) is such that removing a case advisor from the ultimate process in a contested case could result in an insufficient number of votes to impose discipline, if any other member is absent or is disqualified by conflict of interest, or there is a vacancy. An affirmative vote of two thirds of the membership of a board is required before a suspension or revocation can be imposed, and the department has taken the position that that means two thirds of the authorized membership, even if there are vacancies. Thus, in a board with four members, that would require three affirmative votes. Next time, I will talk about how the staff proceeds with their investigations. If you ever find yourself or your business as the subject of a Department investigation or complaint, feel contact me or another experienced attorney here at Gimbel, Reilly, Guerin & Brown, LLP.

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