By Attorney Arthur Thexton, Of Counsel

Part 4: The Investigation Process of the Wisconsin Department of Safety and Professional Services

In my last blog, I talked about the role of the case advisor in the process of handling complaints. This time, I will talk about how the staff proceeds with their investigations.

By Attorney Arthur Thexton, Of Counsel

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

Last 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.

By Attorney Arthur Thexton, Of Counsel

Part 2: How does the Wisconsin Department of Safety and Professional Services Review Complaints?

In my last blog, I talked about how the Department is organized. This time, we will see how the Department operates on a day-to-day basis, when complaints are received.

By Attorney Arthur Thexton, Of Counsel

Part 1: What is the Wisconsin Department of Safety and Professional Services?

Do you have an occupational or professional license in Wisconsin, or do you have a client who does? Have you received a letter stating that a complaint has been made about you, and requesting a response? In this series of blogs, I will explain how the Department handles complaints, and perhaps offer some insight (aside from promptly contacting an attorney to discuss your case). I spent 24 years as a prosecutor in the Department, handling cases for almost every profession and occupation.

By Attorney, Steven McGaver

It is safe to say that an OWI conviction in Wisconsin can have a lasting impact on your life. For some it is the catalyst to reexamine lifestyle habits, while others consider it only a minor misstep in their youth. One thing that is often not an immediate concern for an individual who chooses to get behind the wheel after consuming and intoxicant is the impact an OWI conviction might have on their current or future employment status. However, this recent news story offers an important lesson about the lasting consequences an OWI conviction could have on your career. With that in mind, here are 7 ways an OWI arrest or conviction in the State of Wisconsin could have a detrimental effect on your current and future career path.

1. Lack of transportation - Quite often one penalty an individual convicted of an OWI offense incurs is the revocation of their driver's license. If you live in an urban area with public transportation available, this revocation may not have a significant impact. However, if you need a vehicle to get to and from work, or are required to travel to conduct business this penalty could greatly hamper the ability to perform your employment duties (especially if you don't qualify for an occupational driver's license).
2. Employment applications - While potential employers in Wisconsin cannot ask about your arrest or conviction record, this is not always the case if you apply for a job outside of the state. Additionally, according to the Wisconsin Department of Workforce Development, potential employers can ask about any "pending" charges or convictions (those charges cannot be held against an applicant unless they are directly related to the job for which they are applying) or convictions that are substantially related to the field of employment. An OWI conviction will also appear in a routine employment background check, which is often conducted by businesses before a new hire.
3. Contractual requirements - For many employers, an OWI arrest or conviction is a red flag for other potential employment issues. With that in mind many business include a code of conduct within their employment handbook or employee contractual agreements. If the handbook (or employment contract) lists criminal ( or OWI) convictions as grounds for dismissal, you may soon find yourself unemployed.
4. Insurance issues - If you are required to drive as part of you employment (truck driver, chauffer, etc.), you will also be required to have current insurance coverage. Many insurance companies will not insure individuals who have an OWI conviction (or will require them to purchase substantially more expensive high-risk insurance). Furthermore, if insurance coverage is provided by your employer, they could be put in the position of losing their corporate insurance coverage (or face increased insurance rates) because you are on their plan.
5. Professional licensure loss - A profession that requires you to hold a license (hair dresser, physician, teacher, etc), might also required you report any recent arrests or previous convictions on a license application. Depending upon your occupation, you could also lose your license and potentially your job if you are convicted of an OWI.
6. Time off work - Court appearances that are a result of an OWI arrest will likely take place during regular business hours. In addition, if convicted, you may be required to undergo substance abuse counseling or seek other professional services as a part of your restitution. This time away from work could be held against you, especially if you had a high absentee rate before your arrest.
7. CDL revocation - If you require a commercial driver's license as part of your occupation, a first offense OWI conviction will result in the loss of your CDL for a period of one year. If you are convicted of a second OWI offense your license will be permanently revoked.

Our best advice, as always is to have a designated driver if you choose to drink. However, if you find yourself facing a potential OWI conviction, we recommend contact ing an attorney who is qualified to handle the intricacies of this type of litigation.