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Court Reaffirms Boards’ Ability to Act as Own Expert

Published: Jan 31, 2024 by Brandon Smith

Professional licensing agencies are often permitted to act as “judge, jury, and executioner” as it pertains to the licenses and licensees they regulate. Indeed, the administrative hearing process often seems stacked against licensees.

First, an agency investigator receives a complaint and investigates it. That investigator makes a report to the board members (or to a subset thereof) who make an initial determination whether to pursue public discipline. If the agency pursues public discipline, it will often lead to an administrative hearing. That hearing will often be held in front of a hearing examiner, paid for, and sometimes employed by, the agency. The hearing examiner will then issue a report and recommendation that will be reviewed and approved or modified by the board members.

In other words, the agency does the investigation, attorneys representing it do the prosecution, its employee / contractor acts as an initial judge, and then the agency issues a final decision.

The Tenth District Court of Appeals recently reaffirmed yet another way in which the process can feel stacked against licensees. Specifically, members of an agency, in this case the State Medical Board of Ohio, can act as their own expert in determining what sanction is appropriate.

In the recent case (Valko v. State Med. Bd. of Ohio), the Board and the physician each presented testimony of expert witnesses at the administrative hearing. The Board’s hearing examiner recommended an indefinite suspension with conditions for reinstatement. When the Board considered the case, however, a Board member who practices in a similar field gave his own, arguably “expert,” opinion about the allegations and the appropriate sanction. In large part due to this Board member’s statements, the Board issued a final decision permanently revoking the physician’s license.

The Court’s decision reaffirms that statements by Board members during deliberations do not constitute testimony. Rather, the Board is allowed to use its own expertise during deliberations to determine the appropriate sanction—even if its expertise differs from the opinion of its own expert witness.

If you have questions regarding an upcoming hearing or pending discipline with a licensing agency in Ohio, you should consider contacting one of the licensed attorneys at Graff & McGovern, LPA. Attorney Brandon Smith is available at (614) 228-5800, x. 7 and