Pennsylvania Licensing Boards Consensually Converting In-Person Hearings to Video Hearings

I received this Proposed Order via, appropriately, email today.  The decision to allow a licensing board hearing to be conducted via video versus in person is the licensee’s.  I strongly object.  Both time and in person presentations of witnesses and evidence make for a much better defense of a license in a professional disciplinary case.  Call me to discuss.

ORDER CONVERTING HEARING TO REMOTE VIDEO/TELEPHONE HEARING

AND NOW, this ________ day of April, 2020, upon consideration of the circumstances now presenting with the COVID-19 pandemic, restrictions on travel, and the right of the parties to prompt resolution of this matter the hearing currently scheduled for June 16, 2020, will still occur but be converted to a remote hearing to be conducted whereby individuals will participate either by video conference or by simultaneous telephone call.  In other words, the parties are to participate by video conference or by phone and not in person at the previously identified location and will receive instructions on how to participate as the hearing nears.

The Commonwealth and Respondent shall be responsible for making the appropriate arrangements for their own participation and that of any witnesses during the hearing via video conference, subject to the following guidelines:

1. The parties shall ensure that they and their witnesses have a computer or phone with a reliable internet connection, webcam, and microphone – Respondent is free to have any witnesses that she may want to have testify, with her/counsel in her physical location participating on her phone or computer; NOTE: if either party chooses to participate simply by phone, that is possible and counsel will be given a call-in number;
2. If witnesses will not be present with the Commonwealth attorney or Respondent’s attorney, in preparation for the hearing, the parties are to ensure that their witnesses download to their computer or phone: GoTo Meeting or other software which this Office will identify;
3. On or before June 9, 2020, the parties shall provide the following information in writing to the Prothonotary’s Office to Arjun Gelal at [email protected]:
4. A reliable e-mail address for each attorney and witness to which the Prothonotary can e-mail the software invitation (an Invitation with a link and instructions on how to join the videoconference hearing);
5. A reliable telephone number at which each witness can be contacted on the date of the hearing;

i.       At or about the time for the witness’ testimony, the Prothonotary’s office will contact the witness by telephone for the purpose of instructing the witness to join the hearing via the e-mail invitation.

1. Time for Hearing: Witnesses shall be available for participation at the hearing at 9:30 a.m. on June 16, 2020, and shall remain available until excused from participation by the Hearing Examiner.
2. Secure Location: video testimony shall be provided in a secure location/building with no outside noise or interruptions and any persons present in the room with the witness shall be identified.
3. Documents: All documents to be used by the Commonwealth and Respondent for the witness’ video testimony shall be exchanged between the parties and provided to the witness no later than June 9, 2020. All documents shall be marked with exhibit numbers and each exhibit shall have the pages numbered sequentially.  All exhibits provided to the witness shall be identical to the exhibits presented at the hearing.  Any exhibits not exchanged or provided to the witness prior to the hearing shall not be permitted to be used for purpose of eliciting testimony or other evidence.
4. Unavailability of party or witness/failure to appear:
   1. If a witness is not available at the time the Hearing Examiner attempts contact the witness, the witness may be deemed to have failed to appear.
   2. Failure to appear may include, but not be limited to, any of the following:
      1. failure to join the videoconference hearing when contacted;
      2. failure to answer the telephone;
      3. failure to free the line for the proceeding;
      4. failure to be ready to proceed with the hearing as scheduled; and
      5. failure to acquire or secure an appropriate connection, and in particular, video conference usage.
5. Hearing process: The hearing will continue without the testimony of any unavailable witness.
   1. Exclusion of testimony or ruling on matter: Absent good cause shown for failure of the witness to appear, the Hearing Examiner may exclude any further participation by the witness, and rule on the matter without the participation of the witness.
6. Testimony protocol: The witness shall not be prompted or directed during the hearing by any person other than the person eliciting his or her testimony.

IF ANY PARTY OBJECTS TO THIS ORDER THEY SHOULD FILE AN OBJECTION WITH THE PROTHONOTARY AND WE CAN DISCUSS.  FURTHER, IF RESTRICTIONS EASE IN THE MEANTIME, THE PARTIES ARE FREE TO REVISIT THE ISSUE.