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Charli Eaton

003574934

Pa 672/Professor Van Wart

Final Exam/June 17, 2015

FINAL EXAM

QUESTION ONE:

In response to this question I elected to analyze the

California Board of Behavioral Sciences (and the Department of

Public Social Services in Riverside and Marion Counties): and

the Maricopa County Medical Examiner. I also looked at the

Marion County Planning Division and happened upon an eleven page

directive of Administrative Procedures for Social Media in Marion

County, Oregon as well. That discovery had me wondering if

Riverside County or Maricopa County had implemented such an

innovative idea! Although they had a few guidelines, mostly

related to the Community College Districts, they were not as

developed or extensive as Marion County. Correspondingly, my

examples are from California, Arizona, and Oregon. Focusing on

adverse action adjudications and appeals related to employees of

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these various agencies I will describe the processes used in each

of the three subject cases.

In doing my research I found an amusing side note which I

considered the “ultimate disclaimer” (if you will) and even more

amusingly is posted right on the website of the Bureau of Indian

Affairs. It states, “The IAM Index is a work in progress and changes

regularly as programs update their policies in conjunction with

changing organizational structure and program responsibilities.

Note that Chapters without document links either: have not yet

been developed, or are in development/review by the appropriate

program office (but not yet final and available for posting).”

Presumably, this is just in case any of us get the crazy idea

that anything which involves the treatment of Native Americans by

the United States government is ever consistent and static.

(Bold and italics are mine!)

Focusing on three counties I have Riverside County,

California: Maricopa County, Arizona and Marion County Oregon. I

was interested primarily in civil rights violations alleged by a

county employee, with a focus on adverse actions and judicial

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review: similarities in due process procedure: variations in the

processes of interest: level of rigor (i.e., soft look vs hard

look) and of course insights and notes in a general sense.

Starting with Riverside County I found that the Dept. of

Public Social Services employs many people who are registered

with and governed by the California Board of Behavioral Sciences.

These include Social Workers, Licensed Clinical Social Workers,

Marriage and Family Therapists and others. The California Board

of Behavioral Sciences publishes a number of enforcement

documents and publications including: Laws and Regulations, a

list of accusations or final decisions in disciplinary cases and

a booklet entitled," Professional Therapy Never Includes Sex."

(Enforcement Documents and Publications, Ca. Board)

In California, therapists who were told by a client of

sexual involvement with another therapist are mandated by law to

offer the client a brochure that explains the procedure for

filing a complaint. Although copies of enforcement investigative

reports cannot be released, copies of legal actions including the

formal and accusation or decision may be obtained. The Custodian

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of Records at the Board of Behavioral Sciences is the proper

venue to subpoena any of the Board’s documents or records to find

out more information. (Complaint Information, Ca. Board)

There is a public disclosure policy as well so that anyone

may inquire whether a therapist is currently licensed or has had

any malpractice judgments in excess of $30,000. It is also

possible to verify licenses online as well as disciplinary

actions that may have been taken against a therapist or social

worker. According to the literature published by the California

Board of Behavioral Sciences all complaints are reviewed by the

Board's enforcement staff. If allegations constitute grounds for

disciplinary action they will be sent to the Dept. of

Investigation and the California Office of the Attorney General

for further action.

Acts by a social worker or a therapist which are subject to

disciplinary action such as revocation or suspension of a license

are serious matters that will trigger an internal investigative

process. After an accusation is filed there may be resolution by

stipulated settlement but stipulations are subject to adoption by

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the board. If a stipulated settlement cannot be negotiated there

will be a hearing before an Administrative Law Judge of the

Office of Administrative Hearings. Likewise, allegations by a

therapist that their civil rights have been violated are

similarly handled. (Supra)

Should the board elect not to adopt the proposed decision,

board members may then decide the matter based upon the

administrative record. The respondent may petition for

reconsideration if dissatisfied with the decision or proceed to

file a writ of mandate in the appropriate Superior Court to

contest the decision, thus triggering judicial review. (Complaint

Information, California Board of Behavioral Sciences)

One of the most interesting aspects of Riverside County

however is the Section 15 Impasse Procedure. This is a procedure

that may not be requested by either party until all attempts at

reaching an agreement by way of meeting and conferring have been

exhausted and thereby unsuccessful. Assistance of a mediator is

available from the California State Conciliation Service or the

American Arbitration Association. (MOU’s Section 15, p. 14)

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Maricopa County has a more complex and formal procedure, but

with some similarities. Like most agencies there is an informal

resolution of discrimination complaints or other complaints

available. An employee may file a complaint either verbally or

in writing, but must do so within 90 calendar days of the last

occurrence of the act, according to the procedures listed on the

human resources website for Maricopa County. The county also has

an employee merit system resolution process which is ostensibly

"to provide a uniform and equitable system of personnel

administration for employees in the Maricopa County classified

service." (Filing a Complaint, Maricopa County Human Resources,

p. R-1)

I found some of the wording particularly interesting, for

example, "The system of personnel administration for employees in

the classified service shall be based upon merit principles and

free from political patronage…” (Supra) a merit system

commission exists, the members of which have been nominated by

commission members from among the qualified electors and are thus

subject to appointment by the board. The Board has a rather

lengthy list of powers in accordance with ARS Section 11-356.

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Complaints are reviewed by the commission which then makes

recommendations to the County Administrative Officer and the

Maricopa County Board of Supervisors. Judicial Review is then

triggered by an appeal from either side from the decision made by

the County Administrative Officer. (Performance Audit and Sunset

Review)

In Marion County, Oregon the Human Resources Department

declares that they are the responsible agency for initial review

including, “… all incident reports or complaints of

discrimination, harassment or retaliation, for determining the

appropriate party to conduct an investigation, for providing

oversight of the investigative process, and for providing

training and consultation on the policy involving employment with

Marion County. (Marion County Oregon Administrative Policies)

The Risk Management Division is responsible for reviewing

all incident reports or complaint of discrimination, harassment

or retaliation, for determining the appropriate party to conduct

an investigation, for providing oversight of the investigative

process, involving equal opportunity to access Marion County

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programs, facilities, or services. All employees and volunteers

are responsible to immediately notify Human Resources or the

appropriate department management if they observe or become aware

of a situation involving discrimination, harassment or

retaliation. Employees are expected to self-report

supervisor/subordinate relationships to Human Resources or

department management in order to work towards a resolution that

will avoid unintentional violations of this policy.” (Marion

County Administrative Policies, Section 602.6)

I have accessed a few cases from all three counties that

involved Judicial Review. One in particular is from Maricopa

County (Chen v. Maricopa County) which involved a pathologist

named Angellee Chen who believed she and other female

pathologists had been passed over for promotions because of

gender. The original complaint was filed against the Maricopa

County Office of the Medical Examiner in 2010 and then proceeded

to work its way through the Human Resources Department to the

Ombudsman. Finally in 2011 Chen was terminated for

“insubordination” and Chen filed with the EEOC who issued a

“right to sue” which she did.

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According to the case file, “Under the second prong for

stating a First Amendment retaliation claim, Chen must allege

that the OME took an adverse employment action against her. "[A]

government act of retaliation need not be severe and it need not

be of a certain kind." Coszalter, 320 F.3d at 975. "Depending on

the circumstances, even minor acts of retaliation can infringe on

an employee's First Amendment rights." Id. A plaintiff can

establish a valid claim of retaliation by showing that "the

actions taken by the defendants were reasonably likely to deter

[a plaintiff] from engaging in protected activity under the First

Amendment." Id. at 976 (internal quotations omitted). Chen

alleges that on February 3, 2010, Fischione gave her a "Final

Written Warning" which was the equivalent of suspension without

pay. Chen was ultimately terminated from employment on June 20,

2011. Both the Warning and the termination constitute adverse

employment actions. See Anthoine, 605 F.3d at 750 (holding that

"a verbal warning for a 'pattern of incidents of

insubordination,' an unsatisfactory evaluation, and termination

of . . . employment" all constitute adverse employment actions);

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Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 977 (9th

Cir. 2002) (holding that an adverse employment report is an

adverse employment action constituting retaliation for protected

speech). (Supra)

The defendants argued as follows (in pertinent part):

“Defendants argue that Chen has failed to allege a prima facie

case of retaliation under either Title VII or the ACRA. Title VII

prohibits retaliation against an employee because she has opposed

any employment practice made unlawful by Title VII, or because

she “has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing” related

to Title VII enforcement. 42 U.S.C. § 2000e–3(a). Chen may assert

a claim of retaliation by alleging facts that, if true, would

demonstrate that: (1) she engaged in an activity protected by

Title VII; (2) her employer subjected her to a materially adverse

employment action; and (3) there was a causal link between the

protected activity and the adverse action. Vasquez v. County of Los

Angeles, 349 F.3d 634, 646 (9th Cir. 2003). Title VII imposes

civil liability only on employers, not employees. Miller v. Maxwell’s

Int’l, Inc., 991 F.2d 583, 587 (9th Cir. 1993). (Supra)

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Ultimately the Defendants Motion to Dismiss was granted in

part and denied in part in Chen. In another case, Ventimiglia v.

Board of Behavioral Sciences, from 2008, a Marriage and Family

Therapist engaged in a sexual relationship with a client.

Quoting directly from the case file, “In April 2003, the Board

filed an accusation against a Ventimiglia based on a sexual

relationship with S. D. At a hearing before an administrative

law judge, Ventimiglia stipulated that the following portion of

the accusation was true and that no proof would be required… The

administrative law judge issued a proposed decision recommending

revocation of Ventimiglia's license… The evidence was impressive,

credible, and of such significance that, but for the law which

mandates revocation of his license, might otherwise have led to a

disciplinary order less stringent than that set forth below. In

a footnote, the administrative law judge noted that it was not

necessary to detail evidence of Ventimiglia's efforts at

rehabilitation since revocation of his license was mandatory.”

(Ventimiglia v. Board of Behavioral Sciences)

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Again, upon judicial review, and quoting directly from the

case file the court found as follows, “We conclude that

Government Code Section 11517, subdivision (c) (2) (E) (ii) of

the APA applies on remand and that the Board failed to allow

argument as required by the statute. The Board therefore abused

its discretion because it failed to proceed in the manner

required by law, a ground for relief under Code of Civil

Procedure section 1094.5 (CCP section 1094.5). The trial court

erred in denying the petition for writ of administrative mandate

on this ground. In light of this conclusion, we do not reach

Ventimiglia's alternative arguments that he was deprived of due

process under the federal and state constitutions and that the

board failed to comply with the original writ of administrative

mandate.” (Supra)

In Thomas vs. County of Riverside, a 2014 case that involved

the Department of Social Services and a First Amendment right

violation, Plaintiff Wendy Thomas along with her labor union,

appealed a grant of summary judgment in which Thomas…”adduced

evidence of more than 30 adverse employment actions, but the

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district court dismissed all of them, analyzing nine in some

detail and collectively dismissing the rest as “patty workplace

gripes… [that] do not rise to the level of retaliatory adverse

employment actions.” (Thomas v. County of Riverside p. 4)

The panel, led by Chief Judge Alex Kozinski, “…affirmed in

part and reversed in part the district court’s summary judgement

and remanded in an action brought by an employee and her union

that the employee was retaliated against in violation of her

First Amendment rights.” The right in question was free speech

and whether Thomas had simply “badmouthed” fellow employees

(which is what the Administrative Hearing decided essentially) or

whether her right to free speech had been significantly violated

in the workplace. (Supra)

In yet another case involving the California Board of

Behavioral Sciences from 1994, Johnson v. Superior Court (Gass)

an Opinion by Justice Armstrong found that, “Civil code section

43.8 fn.1 provides civil immunity for a person who communicates

information "Intended to aid in the evaluation of the

qualifications, fitness, character, or in severability of a

practitioner of the healing or veterinary arts." In this

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original proceeding, we hold that section 43.8 bars a malicious

prosecution action filed by a psychologist against two

individuals who served as expert consultants in connection with

disciplinary proceedings before the California Board of

Psychology and Board of Behavioral Science Examiners (the

boards).

Additionally the Superior Court held, “We therefore hold

that where an individual acting as a consultant to a licensing

board charged with the evaluation of a practitioner of the

healing or veterinary arts renders an opinion that an accusation

should be filed against the practitioner, the consultant is

communicating information intended to aid in the evaluation of

the practitioners" qualifications, fitness, character or insert

ability." If the licensing board files disciplinary charges

against the practitioner based upon the opinions provided by the

consultant, and the disciplinary proceeding is ultimately

resolved in the practitioners favor, section 43.8 bars the

practitioner from filing a malicious prosecution action against

the consultant.” (Supra)

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Interestingly, on the subject of jurisdiction, Oregon Law

notes that: “The circuit court has no jurisdiction to review

agency orders that trigger the availability of a contested case

hearing, and that are subject to modification in such an agency

proceeding. Bay River v. Environmental Quality Comm., 26 Or App

717, 554 P2d 620 (1976), Sup Ct review denied” but also that “The

circuit court has jurisdiction to hear a claim that the proceed-

ing was a proper case for a contested case hearing but was not so

conducted. Buena Dairy Associates v. State Dept. of Agriculture,

25 Or App 381, 549 P2d 689 (1976)” (2013 ORS)

I believe the information I found provided considerable

insight into the intricacies of the process on a number of

levels. Each state, and even county has specific nuances that,

while they may accomplish the same basic objectives, follow

different patterns to get there. Also, there is no predicting

what a court will decided even when faced with very similar

evidence. Differences both subtle and profound permeate the

various county and state level agencies, and given the sheer

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number of them, it is somewhat miraculous that the system is as

cohesive as it seems to be. And now, on to Question Two!

Question Two: For this essay I decided to follow my area of

interest and ancestry as a Native American of the Loyal Shawnee

Tribe, Shawnee, Oklahoma. I wanted to study the Bureau of Indian

Affairs and see whether the Administrative process would be very

different or similar to state and county, given that the BIA is a

federal agency under the Department of the Interior. What I found

was so fascinating I have “cherry picked” the most interesting

and pertinent parts for this paper. I wondered how the federal

government would “police” itself since from start to finish, any

complaint would be handled within the federal system and its

guidelines.

The answers are somewhat predicable but make for an eye

opening study in procedure. I could certainly follow the path of

Indigenous Law as a specialty! First the scope and types of

appeals themselves: (all of the below from Title 43, Code of

Federal Regulations)

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SCOPE OF SUBPART; DEFINITIONS

§ 4.200 How to use this subpart. (a) The following table isa guide to the relevant contents of this subpart by subject matter. For provisions relating to...

Consult...

(1 ) Appeals to the Board of Indian Appeals generally.

§§ 4.310 through 4.318.

(2) Appeals to the Board of Indian Appeals from decisions of the Probate Hearings Division in Indian probate matters.

§§ 4.201 and 4.320 through4.326.

(3) Appeals to the Board of Indian Appeals from actions or decisions of BIA.

§§ 4.201 and 4.330 through4.340.

(4) Review by the Board ofIndian Appeals of other matters referred to it by the Secretary, Assistant Secretary-Indian Affairs, or Director-Office of Hearings and Appeals.

§§ 4.201 and 4.330 through4.340

(5) Determinations under the White Earth Reservation Land Settlement Act of 1985.

§§ 4.350 through 4.357.

Now a look at the general rules that are applicable to appeal proceedings that are heard before the Interior Board of Indian Appeals: (again from Title 43)

§ 4.312 Board decisions.

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Decisions of the Board will be made in writing and will set forth findings of fact and conclusions of law. The decision may adopt, modify, reverse, or set aside any proposed finding, conclusion, or order of an administrative law judge, Indian probate judge, or BIA official. Distribution of decisions must be made by the Board to all parties concerned. Unless otherwise 6 an order in an appeal pending before the Board must be served in the same manner as appeal briefs.

§ 4.314 Exhaustion of administrative remedies. (a) No decision of an administrative law judge, Indian probate judge, or BIA official that at the time of its rendition is subjectto appeal to the Board, will be considered final so as to constitute agency action subject to judicial review under 5 U.S.C. 704, unless it has been made effective pending a decision on appealby order of the Board. (b) No further appeal will lie within the Department from a decision of the Board. (c) The filing of a petition for reconsideration is not required toexhaust administrative remedies.

§ 4.315 Reconsideration of a Board decision. (a) Reconsideration of a decision of the Board will be granted onlyin extraordinary circumstances. Any party to the decision may petition for reconsideration. The petition must be filed with the Board within 30 days from the date of the decision and must containa detailed statement of the reasons why reconsideration should be granted. (b) A party may file only one petition for reconsideration. (c) The filing of a petition will not stay the effect of any decision or order and will not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Board.

§ 4.316 Remands from courts. Whenever any matter is remanded from any Federal court to the

Board for further proceedings, the Board will remand the matter to an administrative law judge, an Indian probate judge, or BIA. In the alternative, to the extent the court’s directive and time limitations permit, the parties will be allowed an opportunity to submit to the Board a report recommending procedures for it to

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follow to comply with the court’s order. The Board will enter special orders governing matters on remand.

I discovered that the National Indian Law Library was the

place to search for case law on almost anything having to do with

American Indians. I will use one federal case and one state case,

although there are a large number of cases currently centered on

Gaming. More typical to the BIA are cases involving disputes over

land and natural resources. Pages 153-163 in the Rosenbloom text

offer a look at Judicial Review historically and summarily.

Essentially judicial review is best understood as an element of

the checks and balances system that help to comprise the entire

judicial system of the United States, and of other countries as

well. For the most part, modern legal systems provide a way for

the courts to review administrative acts so that relief may be

provided in situations where adverse action prevailed.

Of course the landmark ruling by the Supreme Court of the

United States with regard to judicial review was Marbury vs.

Madison, and since that time has been a staple of American

jurisprudence. The United States uses its district courts for

some administrative decision reviews, while others make it to the

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Court of Appeals or two other specific tribunals that may involve

the Military, Native Americans, and so on. The Judicial Review

of Agency Actions states the legal definition of judicial review

of agency actions as follows, “The Administrative Procedure Act

(5 U.S.C. Sections 551-706 [Supp. 1993]) governs the practice and

proceedings before federal administrative agencies. The

procedural rules and regulations of most federal agencies are set

forth in the Code of Federal Regulations.

With regard to the Bureau of Indian Affairs, the Indian

Affairs Manual, Part 18, Chapter 4, sets out the scope and

guidelines for Collaborative Action and Dispute Resolution. For

the sake of brevity I will not delve into that in this paper.

Most interestingly I did find a reference to the Indian Child

Welfare Act and other tribal matters regarding the placement of

children in the California Probate Code, Section 1452 to 1459.5.

This would certainly imply overlap between state and federal

laws, even though Indian tribes are considered to have

sovereignty.

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The federal case I looked at was Fort Sill Apache Tribe vs.

National Indian Gaming Commission, a very recent case from May

12, 2015 in which the Fort Sill Apache Tribe opened a gaming

facility in New Mexico on land that the United States had “taken

into trust for the use and benefit of the tribe.” In the

National Indian Gaming Commission (NIGC) asserted that the tribe

had violated the Indian Gaming Regulatory Act by using Indian

land that was ineligible for gaming to construct their casino.

The NGIC asserted that there must be a valid waiver of sovereign

immunity before the tribe would be permitted to bring claims

against an agency of the United States as was the case here.

(National Indian Law Library)

The tribe, seeking declaratory and injunctive relief only

countered that Congress had provided such a waiver of immunity in

the APA. The United States Court, District of Columbia, held

that the commission failed to issue a decision on the appeal even

though briefing had been completed for several years. The tribe,

seeking relief under the Administrative Procedures Act, was

granted in part and denied in part. (Supra)

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The state case was from 2013, People of the State of

California vs. Darren Paul Rose, individually, and doing business

as Burning Arrow One and Burning Arrow Two. This involved an

action out of Shasta County Superior Court that alleged “…Rose

was violating state law by selling certain unregistered cigarette

brands and by failing to properly collect and remit tobacco

excise taxes. Rose removed the matter to this court alleging

federal question jurisdiction. Californian now moves to remand,

and seeks an accompanying award of attorney's fees and costs if

it prevails on the motion.” (National Indian Law Library)

The court granted the People's motion and the matter was

remanded but with this caveat, “Although the court believes that

remand is appropriate, the defendant's motion is not without

substance, given the implicit tension between Supreme Court Codes

noted below. Nonetheless, that tension is resolved, per this

court, by the Ninth Circuit also noted below.” (Supra)

The decision also stated that, “Except where Congress

hasotherwise provided," any civil action brought in a state court

of which the district courts of the United States have original

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jurisdiction, may be removed by the defendant to the appropriate

district court. 28 U.S. C. ? 1441 (a).” (Supra) However, it was

also noted that “… the party invoking the removal statute bears

the burden of establishing federal jurisdiction California v.

Dynergy, Inc. 375 F. 3d 831, 838 (2004). (Supra)

In Conclusion, the examples I found, I felt were much more

based on procedural issues, including jurisdiction rather than

review of the content of the issue. My impression is that

judicial review often occurs where procedural issues are at stake

or an impasse has been reached resulting in an inability to move

forward by either side without intervention via judicial review.

With regard to judicial review as a common remedy, relative to

the volume of administrative actions that occur, I believe it is

clear that it is the exception rather than the rule. The

function of judicial review is to make determinations with regard

to the authority of the deciding agency as well as determine

whether the agency is in compliance, or has perhaps abused their

discretion are overstepped their authority. These elements are

more procedural than content focused. Therefore, based on the

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foundation and underlying function forward judicial review I

state my opinion above.

Having said all that I cite the following case in support as

well, “In Yeboah v. INS, 2001 U.S. Dist. LEXIS 17360 (E.D. Pa.

Oct. 26, 2001), it was observed that there are three criteria by

which courts consider while deciding whether action of an agency

is reviewable: Firstly, the agency must have broad discretionary

powers. Secondly, courts have to consider whether the action

implicates any political, military, economic, or other choices

not essentially legal in nature and, thus, whether the action is

not readily susceptible to judicial review. Thirdly, even actions

committed to agency discretion by law are reviewable on grounds

that the agency lacked jurisdiction, decision of the agency

resulted from impermissible influences or such decision violates

any constitutional, statutory, or regulatory command.

(http://administrativelaw.uslegal.com/judicial-review-of-

administrative-decisions)

Again, this indicates to me that procedural matters are more

often than not, in question. Given that the agency “must have

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broad discretionary powers” it would seem that questions of

procedure and abuse of that discretion is most often the real

question. There is really so much more I could say here, but I

have already probably made this final longer than it needed to

be. The law is multifaceted, heavily nuanced, complex, often

contradictory and ever subject to human interpretation, but it is

never boring and…it is always a work in progress. Just ask the BIA!

NOTE: All citations below were used even if not directly quoted, some for

reference and comparison purposes.

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