By Julia Judish
Most certification programs require, as a condition of maintaining certification, that certificants comply with a code of conduct or other ethical standards promulgated by the certification program. Violation of the program’s code can trigger disciplinary proceedings and result in disciplinary sanctions. These actions range from the mild (e.g., a private letter of warning) to the most severe sanction a certification program can impose: revocation of certification and permanent disqualification from eligibility for the credential. Although nearly every credentialing organization maintains some form of ethical code and procedures for reviewing alleged violations, approaches vary widely. Some codes of conduct are narrow in scope, focusing solely on misconduct relating to the certification examination or to misuse of the credential. Some codes also impose consequences for unethical professional conduct. The most far-reaching allow for disciplinary action arising from any serious unethical or unlawful conduct by an applicant or certificant, even if unrelated to the kinds of activities that the certification program oversees.
Both for the certification program and for the certificant facing potential disciplinary action, the program’s code of conduct and its associated disciplinary procedures have high stakes. For the program, the credibility and value of its credential depend on establishing and enforcing an appropriately scoped code of conduct. For the certificant, the adequacy and fairness of the disciplinary processes used by the program have a direct impact on the certificant’s reputation and, often, their livelihood. As a result, disciplinary decisions that do not meet standards of fairness and basic due process are subject to legal attack by the aggrieved certificant or applicant.
Despite the importance of disciplinary policies and procedures for certification programs, their certificants and the public, little direct legal guidance exists for voluntary certification programs about the scope and content of their disciplinary policies. For certification programs accredited by the National Commission for Certifying Agencies (NCCA), the NCCA’s Standards for the Accreditation of Certification Programs include an expectation that certification programs maintain disciplinary policies and procedures, but the Standards are not prescriptive about the content of those codes or procedures.
Legal cases challenging disciplinary processes by non-governmental certifying or accrediting organizations establish that disciplinary decisions must be made in accordance with fair and reasonable procedures that provide basic due process to the applicant or certificant. For example, in a 2006 decision in the case Thomas M. Cooley Law School v. American Bar Ass’n, a federal appeals court observed that “‘quasipublic’ professional organizations and accrediting agencies … have a common law duty to employ fair procedures when making decisions affecting their members…. Courts developed the right to common law due process as a check on organizations that exercise significant authority in areas of public concern such as accreditation and professional licensing.”
The due process procedures a program uses need not rise to the level of judicial due process, however. For example, in the case Barrash v. Am. Ass’n of Neurological Surgeons, a surgeon challenged an association’s disciplinary censure of him, alleging, in part, that the censure harmed his future employment opportunities and tortiously impaired an important economic interest from denial of due process. In a 2016 decision that affirmed denial of several of his claims, a federal appeals court noted that the “essential elements of due process are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case” and affirmed the district court’s decision limiting judicial review to whether “minimal” due process was afforded to the surgeon. This holding applies equally to certification programs. The court of appeals refused to entertain the plaintiff’s challenge to the level of discipline imposed, observing that “the choice of a censure versus a lesser alternative is a matter of degree, not fundamental fairness.”
Certification programs are also afforded considerable deference by courts in selecting the substance of their standards of conduct. The district court in the Barrash case, for example, noted the “strong public policy against reviewing the substance of a private organization’s adjudication of a dispute regarding one of its members.” Similarly, courts have declined to require that disciplinary codes define terms such as “dishonorable, unethical or unprofessional conduct.”
Nonetheless, it is important that any disciplinary code be applied in a fair and non-arbitrary manner. A 1983 FTC Advisory Opinion reviewing the American Academy of Ophthalmology’s then-proposed code of ethics relied on antitrust principles to opine that it is “essential” that “the code is interpreted and enforced objectively and with fairness.” Similarly, a 1994 FTC Advisory Opinion expressed concern about proposed changes to a disciplinary program that sought to impose sanctions for instances of fee complaints (e.g., for fraud or intentional provision of unnecessary services). In disapproving the proposed changes, the FTC cited an “absence of a clear standard of discipline,” noting that decisions were left to “subjective judgments by [those] serving on disciplinary committees.”
In light of these legal parameters, certification programs are well-served by reviewing both the substantive scope of their codes of conduct and the procedures the program uses to enforce those codes. If a certification program is designed to inform the public that a certificant has demonstrated mastery of a fairly narrow or technical set of skills and knowledge, the program may decide to adopt a code of conduct that covers only behaviors that relate to either the narrow skill set or the integrity of the certification process. In establishing the scope of an ethics code, it may be helpful for a certification program to conduct thought experiments about different scenarios: For example, would the value of its certification program be undermined if a convicted embezzler or batterer were known to hold the credential? The answer to that question is likely yes for certification programs for professions that entail a high degree of public trust, such as financial advisers or health care professionals. Those programs may want a code of conduct that calls for discipline for a broader set of unethical, dishonest or unlawful behaviors, even if those behaviors occurred outside of the professional context. Other programs that certify specialized expertise in a trade may view their certification as independent of the personal conduct of their certificants, leaving allegations of personal misconduct to be resolved by law enforcement, the courts or licensing boards.
Certification programs should also ensure that they have fair and consistently applied procedures that meet at least the minimum standards of due process, affording notice of the allegations, an opportunity for the accused to respond (whether in writing, telephonically or in person) and decision makers with no personal interest in the outcome. An opportunity for review and appeal of an adverse decision is also a best practice and consistent with the NCCA’s Standards.
The ethics codes and disciplinary procedures should also be made easily available to applicants, certificants and the public, such as by publishing them on the program’s website. Transparency of policies and procedures is a fundamental element of both fairness and due process. For example, if a program’s ethics code would prohibit any applicant with a past fraud conviction from eligibility for certification, that information should be available to potential applicants before they invest in training to obtain the certification. Publishing the ethics code also communicates to the public and other stakeholders the meaning of the certification (e.g., whether the certification attests only to mastery of a skill set and knowledge base or also covers broader character traits).
In summary, every certification program should:
- Define the scope of its ethics code.
- Establish fair and reasonable procedures for enforcing the code that provide due process to alleged violators.
- Allow review or appeal of an adverse decision.
- Share the program’s code of ethics and procedures with the public and other stakeholders.
Following these principles will both reduce legal risk to the certification program and support the integrity and credibility of the credential.
Julia Judish, special counsel at Pillsbury Winthrop Shaw Pittman LLP in Washington, D.C., serves as a trusted adviser on all facets of the employment relationship and on nonprofit governance. Judish provides critical and strategic counseling to nonprofit organizations and privatesector employers. Her practice includes ADA accessibility, credentialing and affirmative action issues. In addition to counseling clients on legal compliance, personnel best practices, employment contracts and resolution of sensitive employee disputes, she also advises on structure, governance, fiduciary duties and related areas. She writes extensively on employment and nonprofit legal issues and is a regular speaker on these topics.
Ethical and Legal Issues in Certification and Disciplinary Policies and Procedures
Presented by Julia Judish, Pillsbury Winthrop Shaw Pittman LLP, and Hilary Wilson, Inteleos
Certification organizations face important ethical and legal issues in setting criteria for certification, establishing a code of conduct for certificants, addressing allegations of cheating or of fraudulent use of credentials, and responding to reports of charges or disciplinary or legal actions by licensing, civil or criminal authorities. This webinar, led jointly by a certification professional and a legal advisor to certification organizations, will discuss ethical and legal issues in establishing policies and procedures that protect the public, certificants and the certifying organization and uphold the integrity of certification.