Recent Changes to Internal Procedures at the TSBDE Involving the Disciplinary Process Makes Hiring Experienced Counsel Even More Important.
Regulating licensees is a difficult and often thankless task. Having served in that capacity for different licensing agencies in the role of head counsel, it is not surprising that I tend to agree with this notion. However, when an agency overacts and implements policies that appear to tilt the process in its favor in the disciplinary process against its licensees, the notion of protecting the public isn’t served. Some licensing agencies have a long history of turmoil in terms of carrying out its mission, finding great difficulty in attaining the balance of protecting the public juxtaposed to not unduly punishing its licensees or imposing inconsistent disciplinary measures. The Texas State Board of Dental Examiners (TSBDE) is no different from most other agencies in this regard as it strives to carry out its mission, ensuring the protection of Texas citizens relative to the licensees it licenses. However, the TSBDE has been plagued with continuing difficulty in applying consistency in its disciplinary methods. In a report from the Texas Sunset Commission in 2016, a governmental agency who reviews the conduct of administrative agencies to determine if those agencies are operating efficiently and as their mission requires, the findings of the Sunset Commission were not particularly favorable for the TSBDE. (The report and the TSBDE’s response to the report can be found here).
One of the deficiencies identified by the Sunset Commission was that the TSBDE clarify the use and role of Board members at informal settlement conferences. The Sunset Commission recommended that the TSBDE clarify the use and role of Board members at informal settlement conferences, limiting the scope of consideration that a board member has in his or her role at an informal settlement conference. Not surprisingly, the TSBDE disagreed with this recommendation of limiting the scope of consideration that a board member has at an informal settlement conference.
Having attended countless scores of these informal settlement conferences involving the TSBDE, both as its General Counsel and now in private practice representing dentists, a recent change in the internal policy of the TSBDE makes the necessity of counsel for licensees at these conferences all the more important. This change, it appears, allows the TSBDE board member at the informal settlement conference, despite having its own in-house counsel attend and participate in the proceeding, to deliberate by himself or herself and without the assistance of its own legal counsel present during the deliberations. That is to say, only the board member can propose how that particular complaint or investigation should be resolved. More often than not, the deliberation process critically involves the determination as to what disciplinary action, if any, will be proposed or recommended. This deliberation, which was previously done in a round circle format amongst the board member and the staff, including its legal counsel, is now done without the assistance of the TSBDE’s legal counsel during these deliberations. More striking, once the licensee (and his or her attorney) has presented their matter and urged their position(s), they are dismissed for the board member to deliberate. As part of the dismissal process, the TSBDE's own counsel is also excused from the room and not allowed to deliberate on what course of action, if any, should be pursued. This is a substantial departure from previous policy and practice in which the in-house counsel and staff continued to be present during these deliberations with the board member, counseling and discussing with the board member through difficult issues regarding a case that is often embodied in these types of cases. It stands to reason that since the TSBDE’s counsel, who understands burdens of proof, and who would be the individual to take the proceeding to a contested case hearing at the State Office of Administrative Hearings, would be in a position to best understand whether positions or arguments advanced by the TSBDE (and/or the opposition) could withstand scrutiny or challenge at the SOAH level. Because of this, the previous practice of the TSBDE (and most other licensing boards) is to allow deliberation and consideration with input from its legal counsel during deliberations as to whether that case should receive a recommendation of discipline. As it stands, the deliberations are now made solely by the board member at the informal settlement conference without any input from its legal counsel. As such, and presuming that the recommendations were inconsistent or rejected because they had no basis, negotiations on these points, among other things, between the parties after the informal settlement conference just became much more difficult. If anything, this underscores the importance of hiring knowledgeable counsel familiar with this agency’s process in order to best determine the course of action in the face of an internal policy change that appears to be heavy-handed.