Robert J. Weil
Law Office of Robert J. Weil, PLLC
4031 University Drive, Suite 100
Fairfax, Virginia 22030
(703) 934 2036 O
(703) 277 7730 F
(703) 399 5671 C
Certification Programs for
Know the Pitfalls
Manage 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 professionalismof 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:
Notice of all charges
A right to respond to the charges
Access to all evidence the hearing panel may rely upon in making its decision
Substantive, non-trivial allegations
A process not tainted by malice or bad faith
Adequate evidence to support the charges
Charges that don’t violate public policy
An impartial hearing panel
Compliance 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.
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.
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:
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.
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.
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..
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.
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.
If you have any questions about certification programs or their operation, please contact me at:
Law Office of Robert J. Weil, PLLC
4031 University Drive, Suite 100
Fairfax, Virginia 22030
Office (703) 934 2036
Cell (703) 399 5671
Fax (703) 277 7730