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Robert J. WeilLaw Office of Robert J. Weil, PLLC4031 University Drive, Suite 100

Fairfax, Virginia 22030(703) 934 2036 O(703) 277 7730 F(703) 399 5671 C

bob@rweillaw.comwww.rweillaw.com

Certification Programs forExempt Organizations

Know the PitfallsManage your Risk

Potential Liability Exposures for Certification Programs

Denial/Loss of Certification

Possessing certification and the right to advertise or hold oneself out as “certified” can carry with it very real and marketable economic advantages and professional prestige. Having gone through the steps required to earn the certification, the holder will place great value on his or her ability to use that certification in their marketing and advertising efforts. In addition, holding the certification may be a requirement to obtaining certain contracts, types of business or even employment positions. For example, some federal or state government agencies may require a certification of a particular nature in order to work for or contract with the agency. That said, denying or taking away someone’s certification should not be taken lightly and must incorporate some form of due process.

Due process can be made available in different ways. There is no hard and fast rule as to what form the due process must take. The key is to ensure that the process is fair and reasonable and gives the affected individual a voice, whether in writing or in person or through the appearance of legal counsel. One of the more obvious and relatively painless forms of due process provided by the certifying organization would be the right of the individual to reapply to take the test. This places the responsibility and burden of successfully negotiating the test requirement on the individual. There are other due process measures that can be afforded, including, but not limited to, a meeting between representatives of certifying organization familiar with the certification process and the applicant that failed the test. There can also be a review of the examination with the failed candidate.

Where loss of certification would prove harmful to the member, due process should be provided through fair proceedings carried forward in an atmosphere of good faith and fair play. While association due process need not rise to the levels of Constitutional due process guarantees, it must be fair and make for justice rather than form.

A member subject to discipline is not entitled to the same type of due process afforded under our civil and criminal justice systems. That would be too great a burden to impose on associations seeking to operate and protect a legitimate certification program.

Nevertheless, a clear and fair process benefits the association in several ways. One, it demonstrates the legitimacy and professionalism of the association in matters relating to the regulation of its certification program. Second, a fair process ensures that the association will act in good faith and for valid and substantive reasons. Third, procedural requirements may prevent litigation by encouraging interaction between the association and the member. Finally, being forced to complete the requirements of due process will better enable the association to determine if the charges are valid and substantive and provide an opportunity to end the process instead of making a potentially serious error.

Due Process incorporates a number of requirements. Some of those include:

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Notice of all chargesA right to respond to the chargesAccess to all evidence the hearing panel may rely upon in making its decisionSubstantive, non-trivial allegationsA process not tainted by malice or bad faithAdequate evidence to support the chargesCharges that don’t violate public policyAn impartial hearing panelCompliance by the association with its own rules

There is no single mode of providing due process. Due process may be satisfied by any one of a variety of safeguards and procedures which ensure a fair opportunity for an individual to present his or her position.

Adequate Notice:

This is basic. Any requirements in the bylaws or program requirements must be followed.

The right to respond is also basic. The individual whose certification or credential is at stake must have the opportunity to explain his or her position or actions, whether in writing, in person, or both.

An actual hearing need not be part of the process. An opportunity to submit a written statement and supporting documents may be sufficient. However, it should be noted that some courts have strongly endorsed a hearing as a critical component of due process.

Access to Evidence:

A member accused of misconduct that may lead to loss of certification must be given access to all evidence the hearing panel may use or that might be useful to him or her in their defense. Withholding such evidence may be an indication of bad faith or some other agenda. It is always best to err on the side of providing too much information in a due process setting. You won’t be punished for being too fair.

Non-Trivial Allegations:

Courts may, on occasion, intervene if they view the allegations against the certified individual to be trivial. Trivial complaints raise concerns about bad faith or corruption. Judicial intervention may be needed where an association uses its disciplinary process to try to expel a member for reasons that are truly trivial and reflective of some other agenda.

Absence of Bad Faith:

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No amount of due process will protect an association where the actions of the association are in bad faith. Bad faith implies “an interested or sinister motive.” It is “not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity.”Black’s Law Dictionary.

Adequate Evidence:

Courts will require an association to produce at least a modicum of proof that the allegations against the member are true. The question is whether the evidence presented could rationally form the basis of the determination reached by the association. The fact that courts have and will look to the sufficiency of the evidence to support the action taken is proof that courts will take a substantive look at the association’s process.

Impartial Decision-Makers:

Those charged with determining whether or not discipline, including loss of certification, is appropriate, must be impartial. A person whose rights are being determined has a right to an impartial panel to determine those rights. The objective is to have a panel composed of members that do not harbor a state of mind that would preclude a fair hearing.

This may not always be possible, a completely pure panel, that is. It is also not necessary. Courts recognize that there are business relationships in associations that cannot be avoided, and the fact that one or more members of the disciplinary panel may have such a relationship need not invalidate the disciplinary action.

Right to Respond to Charges:

The subject of the certification hearing must have access to the allegations made.

Publications of Decisions:

Associations on occasions choose to publicize the outcome of a disciplinary proceeding. I have mixed feelings about this. It has its benefits – it can serve an educational purpose, and It is permissible, but there are certain general rules that should be followed:

If there is a finding of no wrongful conduct that would warrant discipline or loss of certification, then the name of the party should NOT be published. The mere existence of the allegation or charge can be damaging.

If the certifying organization wishes to publish the name of an individual found to have committed some violation necessitating loss of certification, the policies and procedures of the certification program should state that it can do so. It makes it harder for the disciplined individual to object..

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Appeals Procedure:

Most courts do not list the right of appeal as a fundamental aspect of association due process. A fair hearing is critical. An appeal is not necessary, nor is it a substitute for a fair initial procedure. Nevertheless, it is a prudent feature of any association due process. It can be used to bring to light irregularities or flaws in the underlying process.

Flexibilty:

It is also important to have flexibility in the rules so as to accommodate reasonable requests from the member whose certification is at risk. Allow the member to reschedule, or if he or she needs additional time to compile supporting documentation. It reflects an attitude that the first order of business is fairness.

Revocation, as contrasted with denial of certification status, can occur in a number of different settings. One example would be where a previously certified individual has violated a provision(s) of the certifying organization’s code of ethics or standards of practice, which code or standards represent a well-publicized cornerstone of the certification program. Punishment for such an alleged and proven violation can range from a simple reprimand to probation, suspension or even termination of the certification. No matter what sanction is imposed, due process is a must. Again, while the due process afforded need not be the most extensive or all encompassing, it should be objective, reasonable, fair and provide the individual with a meaningful response, either in person or in writing.

If certification is revoked as a result of the individual’s failure or refusal to meet continuing requirements (continuing education or training), the certifying organization retains the right to take disciplinary action, which may include any of the sanctions I mentioned previously. Remember, certifying organizations retain the right to amend eligibility criteria from time to time. The program is owned by the association, thus it retains the authority to make modifications it believes in good faith to be useful. Generally speaking, someone applying for the credential or who already possesses the credential cannot reasonably object to a change that is made in good faith with the goal of improving the program. We do suggest including language in the certification program documents that the association retains the exclusive right to make good faith changes it deems useful and beneficial to the program from time to time.

Due process procedures I have experienced firsthand include a full blown hearing with submission of documentation before an appointed hearing committee, with counsel allowed to be present for consultation but not for actual representation, to the submission of a written response and documentation to a hearing committee with the opportunity for subsequent review on appeal by the full Board and legal counsel. In each instance, while flaws in the process may exist, there can be no doubt that the individual whose certification was a risk was given the opportunity to present his or her best defense to the charges to a duly appointed hearing panel. That is all that can reasonably be required of the certifying organization.

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If you have any questions about certification programs or their operation, please contact me at:

Law Office of Robert J. Weil, PLLC4031 University Drive, Suite 100

Fairfax, Virginia 22030Office (703) 934 2036Cell (703) 399 5671Fax (703) 277 7730bob@rweillaw.comwww.rweillaw.com

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