RESPONDING TO THE ETHICS INVESTIGATIONCoursework 2. Taking or teaching college level coursework 3. Seminars, workshops, conferences 4. Authoring relevant published papers, articles

© Copyright 2014, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved. Higher standards make better lawyers.®

Allen L. Rutz, P.E., Esq.Vorys, Sater, Seymour and Pease LLP

52 E. Gay St., Columbus OH

(614) 464-5644

RESPONDING TO THE

ETHICS INVESTIGATIONPresentation to the OTEC 2017 Conference

Tuesday, October 10, 2017


Responding to the

Board’s Ethics Investigation

› Common actions taken by the State Board

› Stages of the disciplinary process and how to

respond

› Settlement considerations

› Mitigating Risks


Most Common Actions Taken by the

State Board

› CPD audit

› COA audit

› Disciplinary Action

• Investigation

• Charge

• Hearing


CPD Audit Letter


CPD Audit Letter


CPD Audit Letter


CPD Audit

› CPD records “may be audited at any time by

the state board”

» O.R.C. §4733.151(G)


CPD Audit Records

› A registrant shall maintain records to demonstrate

completion of [CPD] requirements …for a period of

four calendar years …. The records shall include all

of the following:

• (1) A log specifying the type of coursework or activity, its

location and duration along with the instructor’s name, and

the number of continuing professional development hours

earned;

• (2) Certificates of completion or other evidence verifying

attendance.

» O.R.C. §4733.151(F)


CPD Activities

A. 30 hours of CPD every two years

B. Satisfied by

1. Coursework

2. Taking or teaching college level coursework

3. Seminars, workshops, conferences

4. Authoring relevant published papers, articles or books

5. Patent awards

6. Professional or technical society activities

» O.R.C. §4733.151(A) and (B)


CPD Audit Dispute(removed 06/03/2014)

› [I]f a statement signed by a current

registrant not otherwise participating in the

event affirms that the material is relevant to

the registrant’s practice and will assist the

registrant’s development in the profession

› [T]hen the board shall presume as a matter of

law that [the hours count]

» O.R.C. §4733.151(B), Revoked 6/14


CPD Audit

› If the board discovers that a registrant has

failed to complete coursework… allow the

registrant 6 months from the date of the

notice to rectify the deficiencies

› If the registrant fails to provide [evidence of

CPD completion within 6 months], the board

may revoke or suspend the registration after

offering an adjudication hearing » O.R.C. §4733.151(G)


COA Audit

› Each [COA] holder shall keep a … record …

of all of the business transactions in the

[COA] holder’s office relevant to enforcement

of Chapter 4733. of the Revised Code. Such

records shall be available at all reasonable

hours for inspection and copying by the Ohio

state board

» O.A.C. 4733-35-09 Records.


Stages of the Disciplinary Process

› Complaint

› Investigation

› Charge Notice

› Hearing

› Adjudication Order


Complaint

› Any person may file with the board a

complaint alleging …misconduct, or violation

of this chapter or any rule adopted by the

board …. Complaints shall be in writing.

» O.R.C. § 4733.20(C)


Investigation

› The board may investigate any registrant or

[COA holder] to determine whether [they

have] engaged in any one or more of the

[prohibited] acts …. The board, by subpoena,

may compel witnesses to appear and testify

in relation to any investigation …and may

require … the production and copying of any

… document pertaining to an investigation

» O.R.C. § 4733.20(D)


Charge

› If the board determines there is cause to

believe that an [accused] is or has been

engaged in any [prohibited] act or practice …,

the board shall issue a written charge and

notify the [accused] of the right to an

adjudication hearing

» O.R.C. § 4733.20(E)


Charge Notice


Charge Notice

› Notice shall be given by registered mail,

return receipt requested, and shall include

the charges or other reasons for the proposed

action, the law or rule directly involved, and a

statement informing the party that the party

is entitled to a hearing

» O.R.C. § 119.07


Why Request A Hearing?

› If the accused … does not request a hearing

within the time period specified …, the board

may determine the validity of the charge and

issue an adjudication order

» O.R.C. § 4733.20(E)


Time Limit to Request Hearing

› [T]he [accused] is entitled to a hearing if the

party requests it within thirty days of the

time of mailing the notice

» O.R.C. § 119.07


Hearing Date

› The date set for the hearing shall be within

fifteen days, but not earlier than seven days,

after the party has requested a hearing

unless otherwise agreed to by both the agency

and the [accused]

» O.R.C. § 119.07


Hearing Location

› If requested by the party in writing, the

agency may designate as the place of hearing

the county seat of the county wherein such

person resides or a place within fifty miles of

such person’s residence.

» O.R.C. § 119.08


Hearing Conduct

› The [board] may require the attendance of

such witnesses and the production of such

books, records, and papers as it desires, and

it may take the deposition of witnesses

» O.R.C. § 119.09


Witnesses and Evidence at Hearing

› The [board] may, and upon the request of [the

accused] shall, issue a subpoena for any

witness or …to compel the production of any

books, records, or papers

» O.R.C. § 119.09


Do You Need a Lawyer?

› At any hearing… a party … may be

represented by an attorney or by such other

representative as is lawfully permitted to

practice before the [Board] … but… only an

attorney at law may represent a party … at a

hearing at which a record is taken which may

be the basis of an appeal to court

» O.R.C. § 119.13


Hearing Examiner

› The [board] may appoint a referee or

examiner to conduct the hearing. … Such

referee or examiner shall have been admitted

to the practice of law in the state and be

possessed of such additional qualifications as

the agency requires

» O.R.C. § 119.09


Evidence Presented At Hearing

› “[T]he rules of evidence are not required to be

strictly followed” in administrative

proceedings

» 1st Step Driving School v. Dept. of Public

Safety, 143 Ohio Misc. 2d 19, 2007-Ohio-

3989 (Shelby Cty. C.P. 2007)


Hearing Results

› The … examiner shall submit to the [Board] a

written report setting forth the … examiner’s

findings of fact and conclusions of law and a

recommendation of the action to be taken by

the [Board].

» O.R.C. § 119.09


Hearing Results

› The party may, within ten days of receipt of

[the] written report and recommendation, file

with the [Board] written objections to the

report and recommendation, which objections

shall be considered by the [Board] before

approving, modifying, or disapproving the

recommendation

» O.R.C. § 119.09


Hearing Results

› The recommendation of the … examiner may

be approved, modified, or disapproved by the

[Board]

» O.R.C. § 119.09


Right of Appeal

› Any party adversely affected by any order of

[the Board] … revoking or suspending a

license… may appeal from the order of the

[Board] to the court of common pleas

» O.R.C. § 119.12


Legal Basis for Appeal

› Administrative … agencies have no common-

law or inherent powers other than have been

granted to or conferred on them by law.

» Leiphart Lincoln-Mercury, Inc. v. Bowers,

107 Ohio App. 259, 265, (6th Dist. 1958)


Reducing The Risk of Ethics

Violations

› Implement your own ethics program

• Code of ethics

• Confidential or anonymous reporting

› Train your employees

› Take appropriate employment action where

necessary


Take-Aways

› Keep a log of your CPD hours

› Keep COA records together

› Dates matter

• Ask for a time extension if you need it

› Negotiate settlement if you can

› Consult an attorney


Thank You!

Allen L. Rutz, P.E., Esq.

Vorys, Sater, Seymour and Pease LLP52 E. Gay St., Columbus OH

(614) 464-5644

RESPONDING TO THE ETHICS INVESTIGATIONCoursework 2. Taking or teaching college level coursework 3. Seminars, workshops, conferences 4. Authoring relevant published papers, articles

Documents