What Happens In An Informal Settlement Conference Before The New York OPD?
This article covers:
- Informal Settlement Conferences in a New York OPD disciplinary action
- Process and procedures of an Informal Settlement Conference before the New York OPD
- How to prepare a Pre-Settlement Conference Memorandum
The process of Informal Settlement Conferences before the New York OPD is unwritten. It will not be found in a leather-bound volume of McKinney’s Consolidated Laws of New York Annotated. It will never be argued before a judge. It has not been enacted as law by the legislature. It is an intangible construct and yet it closely aligns with the principles of mediation. In mediation, for every demand there is a counter-offer; for every offer, there is a counter-demand. In the process of Informal Settlement Conferences before the New York OPD, for every call, by the prosecuting attorney, for punishment, there is a counter-proposal, by the respondent professional’s counsel, for lenience and forbearance. And the facilitator and the Board member recommend a resolution of the professional’s disciplinary action. It is then the professional’s decision to accept the resolution or, instead, to proceed to trial.
Most formal disciplinary actions brought by the New York State Department of Education’s Office of Professional Discipline (the “New York OPD” or the “OPD”) are settled before litigation through the issuance of a consent order. (A consent order is a document which states the OPD’s findings of fact and the sanctions imposed.) If a professional is unable to settle with the New York OPD, then, before any formal disciplinary action begins, the professional may opt for an Informal Settlement Conference.
The Informal Settlement Conference Process
- Participants: The participants in an Informal Settlement Conference are the New York OPD prosecuting attorney, the respondent professional, the professional’s attorney (if any), a facilitator, and a member of the State Board for the professional’s occupation.
- Format: These Conferences take place either by video conference (for example, by WebEx, Zoom, or Microsoft Teams) or in-person at the New OPD’s offices. An Informal Settlement Conference typically spans 30 minutes to one hour.
Practice Tip: On any given day, it is likely that the New York OPD prosecuting attorney will be taking part in multiple consecutive Informal Settlement Conferences, each involving a different licensed professional. As a result, the New York OPD prosecuting attorney will likely have only a finite amount of time to get ready for your Informal Settlement Conference. If you prepare diligently for your Informal Settlement Conference and are well versed in the facts of your case and the relevant law, your assiduous preparation may well afford you a considerable advantage against the OPD prosecuting attorney.
- Presentations: The New York OPD prosecuting attorney orally presents first, followed by the respondent professional’s counsel (and the professional himself or herself, if he or she wishes). The facilitator and the Board member may, and likely will, ask questions to the OPD prosecuting attorney, the professional’s lawyer, and the professional.
- Settlement Recommendation: The facilitator and board member then convene by themselves. Upon conferring with one another, the facilitator and the Board member announce, to the New York OPD prosecuting attorney, the respondent professional’s counsel, and the professional, their settlement recommendation.
The professional has approximately seven to ten days to decide whether (i) to accept
the facilitator’s and the Board member’s settlement recommendation or (ii), instead, to try the professional’s case, before a hearing panel, at an evidentiary hearing.
Pre-Settlement Conference Memoranda
Before an Informal Settlement Conference, the respondent professional may, but is not required to, submit a written Pre-Settlement Conference Memorandum. In this author’s view, any Pre-Settlement Conference Memorandum should set forth:
- With specificity, the New York OPD’s Prosecutions Division’s charges against the professional;
- The facts of the case;
- Any settlement offers that the New York OPD’s Prosecutions Division has made to the professional;
- The professional’s reasons for rejecting these settlement offers;
- Arguments that the evidence does not support the OPD’s Prosecutions Division’s charges against the professional; and
- A proposal of the appropriate punishment, if any, that the facilitator and the Member of the State Board ought to recommend to the New York OPD prosecuting attorney, the professional’s lawyer, and the professional.
Practice Tip: Importantly, however, the respondent professional’s Pre-Settlement Conference Memorandum should not cite case law or apply relevant case law to the facts. Citing judicial decisions, or applying those judicial opinions to the circumstances of one’s case, in a Pre-Settlement Conference Memorandum may well prompt the New York OPD prosecuting attorney or the facilitator to deem the professional’s case inappropriate for an Informal Settlement Conference. In such a case, the New York OPD attorney or the facilitator will cancel the Informal Settlement Conference, and the professional’s case will proceed to a disciplinary hearing.
If you are a professional and the New York OPD has called you or sent you an inquiry letter, the New York OPD has summoned you to testify under oath in an on-the-record interview, or the New York OPD has initiated, against you, a formal disciplinary action, call New York OPD Attorney David S. Rich at (347) 941-0760 today.
