Enforcement Procedures for the AOTA Occupational Therapy Code of Ethics

Abstract

The principal purposes of the AOTA Occupational Therapy Code of Ethics (hereinafter referred to as the Code) are to help protect the public and to reinforce its confidence in the occupational therapy profession rather than to resolve private business, legal, or other disputes for which there are other, more appropriate forums for resolution. The Code is also an aspirational document to guide occupational therapists, occupational therapy assistants, and occupational therapy students toward appropriate professional conduct in all aspects of their diverse professional and volunteer roles. It applies to any conduct that may affect the performance of occupational therapy as well as to an individual’s behavior in another capacity that reflects negatively on the reputation of occupational therapy.

The Enforcement Procedures for the AOTA Occupational Therapy Code of Ethics (hereinafter referred to as the Enforcement Procedures) have undergone a series of revisions by the Association’s Ethics Commission (EC) since their initial adoption. This public document articulates the procedures followed by the EC as it carries out its duties to enforce the Code. A primary goal of these Enforcement Procedures is to ensure objectivity and fundamental fairness to all individuals who may be parties in an ethics complaint. The Enforcement Procedures help ensure compliance with the Code, which delineates enforceable Principles and Standards of Conduct that apply to Association members.

1. Introduction

Acceptance of Association membership commits individuals to adherence to the Code and cooperation with its Enforcement Procedures established and maintained by the EC. The EC and Association Ethics Office make the Enforcement Procedures public and available to members of the profession, state regulatory boards, consumers, and others for their use.

The EC urges particular attention to the following issues:

1.1. Professional Responsibility

All occupational therapy personnel have an obligation to maintain the Code of their profession and to promote and support these ethical standards among their colleagues. Each individual must be alert to practices that undermine these standards and is obligated to take action that is appropriate in the circumstances. At the same time, individuals must carefully weigh their judgments as to potentially unethical practice to ensure that they are based on objective evaluation and not on personal bias or prejudice, inadequate information, or simply differences of professional viewpoint. It is recognized that individual occupational therapy personnel may not have the authority or ability to address or correct all situations of concern. Whenever feasible and appropriate, members should first pursue other corrective steps within the relevant institution or setting and discuss ethical concerns directly with the potential Respondent before resorting to the Association’s ethics complaint process. This does not, however, preclude the EC from adjudicating complaints of unethical conduct that it receives.

1.2. Jurisdiction

Enforcement of the Code applies to persons who are or were Association members at the time of the conduct in question. Later nonrenewal or relinquishment of membership does not affect Association jurisdiction. The Enforcement Procedures utilized in any complaint shall be those in effect at the time the complaint is initiated.

1.3. Disciplinary Actions/Sanctions (Pursuing a Complaint)

If the EC determines that unethical conduct has occurred, it may impose sanctions, including reprimand, censure, probation (with terms), suspension, or permanent revocation of Association membership. In all cases, except those involving only reprimand (and educative letters), the Association will report the conclusions and sanctions in its official publications and will also communicate to any appropriate persons or entities. If an individual is on either the Roster of Fellows (ROF) or the Roster of Honor (ROH), the EC Chairperson (via the EC staff liaison) shall notify the Volunteer Leadership Development Committee Chairperson and Association Executive Director (ED) of their membership suspension or revocation. That individual shall have their name removed from either the ROF or the ROH and no longer has the right to use the designated credential of FAOTA or ROH during the period of suspension or permanently in the case of revocation.

The EC Chairperson shall also notify the Chairperson of the Board for Advanced and Specialty Certification (BASC; via staff liaison, in writing) of final disciplinary actions from the EC in which an individual’s membership has been suspended or revoked. These individuals are not eligible to apply for or renew certification.

The potential sanctions are defined as follows:

• 1.3.1. Reprimand—A formal expression of disapproval of conduct communicated privately by letter from the EC Chairperson that is nondisclosable and noncommunicative to another body (e.g., state regulatory board [SRB], National Board for Certification in Occupational Therapy^®, [NBCOT^®]). Reprimand is not publicly reported.

• 1.3.2. Censure—A formal expression of disapproval that is publicly reported.

• 1.3.3. Probation of Membership Subject to Terms—Continued Association membership is conditional, depending on fulfillment of specified terms. Failure to meet terms will subject an individual to any of the disciplinary actions or sanctions. Terms may include but are not limited to:

• 1.3.4. Suspension—Removal of Association membership and eligibility to obtain or renew membership for a specified period of time. Suspension is publicly reported.

• 1.3.5. Revocation—Permanent denial of Association membership. Revocation is publicly reported.

1.4. Educative Letters

If the EC determines that the alleged conduct may not be a true breach of the Code, does not warrant any of the sanctions set forth in Section 1.3, or is not completely in keeping with the aspirational nature of the Code or within the prevailing standards of practice or professionalism, the EC may send a private letter to educate the Respondent about relevant standards of practice and/or appropriate professional behavior. In addition, a different private educative letter, if appropriate, may be sent to the Complainant.

1.5. Advisory Opinions

The EC may issue general advisory opinions on ethical issues to inform and educate the Association members. These opinions shall be publicized to the membership and are available in the Reference Guide to the Occupational Therapy Code of Ethics as well as on the Association website.

1.6. Rules of Evidence

The EC proceedings shall be conducted in accordance with fundamental fairness. However, formal rules of evidence that are used in legal proceedings do not apply to these Enforcement Procedures. The Disciplinary Council (see Section 5) and the Appeal Panel (see Section 6) can consider any evidence that they deem appropriate and pertinent.

1.7. Confidentiality and Disclosure

The EC develops and adheres to strict rules of confidentiality in every aspect of its work. This requires that participants in the process refrain from any communication relating to the existence and subject matter of the complaint other than with those directly involved in the enforcement process. Maintaining confidentiality throughout the investigation and enforcement process of a formal ethics complaint is essential in order to ensure fairness to all parties involved. These rules of confidentiality not only pertain to the EC but also apply to others involved in the complaint process. Beginning with the EC staff liaison and support staff, strict rules of confidentiality are followed. These same rules of confidentiality apply to Complainants, Respondents and their attorneys, and witnesses involved with the EC’s investigatory process. Due diligence must be exercised by everyone involved in the investigation to avoid compromising the confidential nature of the process. Any individual who breaches these rules of confidentiality may become subject to an ethics complaint/investigatory process himself or herself. Non–Association members may lodge an ethics complaint against an Association member, and these individuals are still expected to adhere to the Association’s confidentiality rules. The Association reserves the right to take appropriate action against non–Association members who violate confidentiality rules, including notification of their appropriate licensure boards.

• 1.7.1. Disclosure—When the EC investigates a complaint, it may request information from a variety of sources. The process of obtaining additional information is carefully executed in order to maintain confidentiality. The EC may request information from a variety of sources, including state licensing agencies, academic councils, courts, employers, and other persons and entities. It is within the EC’s purview to determine what disclosures are appropriate for particular parties in order to effectively implement its investigatory obligations.

• 1.7.2. Public sanctions by the EC, Disciplinary Council, or Appeal Panel will be publicized as provided in these Enforcement Procedures . Publication timeline will follow these guidelines:

2. Complaints

2.1. Interested Party Complaints

• 2.1.1. Complaints stating an alleged violation of the Code may originate from any individual, group, or entity within or outside the Association. All complaints must be in writing, signed by the Complainant(s), and submitted to the Ethics Office at the Association headquarters. Complainants must complete the Formal Statement of Complaint Form at the end of this document. All complaints shall identify the person against whom the complaint is directed (the Respondent), the ethical principles in the Code that the Complainant believes have been violated, and the key facts and date(s) of the alleged ethical violations. If lawfully available, supporting documentation should be attached. Hard copy complaints must be sent to the address indicated on the complaint form.

•  Complaints that are emailed must be sent as a pdf attachment, marked “Confidential” with “Complaint” in the subject line to [e-mail] and must include the complaint form and supporting documentation.

• 2.1.2. Within 90 days of receipt of a complaint, the EC shall make a preliminary assessment of the complaint and decide whether it presents sufficient questions as to a potential ethics violation that an investigation is warranted in accordance with Section 3. Commencing an investigation does not imply a conclusion that an ethical violation has in fact occurred or any judgment as to the ultimate sanction, if any, that may be appropriate. In the event the EC determines at the completion of an investigation that the complaint does rise to the level of an ethical violation, the EC may issue a decision as set forth in Section 4 below. In the event the EC determines that the complaint does not rise to the level of an ethical violation, the EC may direct the parties to utilize other conflict resolution resources or authorities via an educative letter. This applies to all complaints including those involving Association elected/volunteer leadership related to their official roles.

2.2. Complaints Initiated by the EC

• 2.2.1. The EC itself may initiate a complaint (a sua sponte complaint) when it receives information from a governmental body, certification or similar body, public media, or other source indicating that a person subject to its jurisdiction may have committed acts that violate the Code. The Association will ordinarily act promptly after learning of the basis of a sua sponte complaint, but there is no specified time limit.

• If the EC passes a motion to initiate a sua sponte complaint, the EC staff liaison to the EC will complete the Formal Statement of Complaint Form (at the end of this document) and will describe the nature of the factual allegations that led to the complaint and the manner in which the EC learned of the matter. The Complaint Form will be signed by the EC Chairperson on behalf of the EC. The form will be filed with the case material in the Association’s Ethics Office.

• 2.2.2.  De Jure Complaints—Where the source of a sua sponte complaint is the findings and conclusions of another official body, the EC classifies such sua sponte complaints as de jure. The procedure in such cases is addressed in Section 4.2.

• 2.2.3. The EC shall have the jurisdiction to investigate or sanction any matter or individual, while that individual was a member, for violations based on information learned in the course of investigating a complaint under Section 2.2.2.

2.3. Continuation of Complaint Process

If an Association member relinquishes membership, fails to renew membership, or fails to cooperate with the ethics investigation, the EC shall nevertheless continue to process the complaint, noting in its report the circumstances of the Respondent’s action. Such actions shall not deprive the EC of jurisdiction. All correspondence related to the EC complaint process is in writing and sent by certified mail with return receipt and by email with delivery confirmation. In the event that any written correspondence does not have delivery confirmation, the Association Ethics Office will make an attempt to search for an alternate physical or electronic address or make a second attempt to send to the original address. If the Respondent does not claim correspondence after two attempts to deliver, delivery cannot be confirmed, or correspondence is returned to the Association as undeliverable, the EC shall consider that it has made good-faith effort and shall proceed with the ethics enforcement process.

3. EC Review and Investigations

3.1. Initial Action

The purpose of the preliminary review is to decide whether or not the information submitted with the complaint warrants opening a case. If in its preliminary review of the complaint the EC determines that an investigation is not warranted, the Complainant will be so notified.

3.2. Dismissal of Complaints

The EC may at any time dismiss a complaint for any of the following reasons:

• 3.2.1. Lack of Jurisdiction—The EC determines that it has no jurisdiction over the Respondent (e.g., a complaint against a person who is not or was not an Association member at the time of the alleged incident or who has never been a member).

• 3.2.2. Absolute Time Limit/Not Timely Filed—The EC determines that the violation of the Code is alleged to have occurred more than 7 years prior to the filing of the complaint.

• 3.2.3. Subject to Jurisdiction of Another Authority—The EC determines that the complaint is based on matters that are within the authority of, and are more properly dealt with by, another governmental or nongovernmental body, such as an SRB, NBCOT, an Association body other than the EC, an employer, educational institution, or a court.

• 3.2.4. No Ethics Violation—The EC finds that the complaint, even if proven, does not state a basis for action under the Code (e.g., simply accusing someone of being unpleasant or rude on an occasion).

• 3.2.5. Insufficient Evidence—The EC determines that there clearly would not be sufficient factual evidence to support a finding of an ethics violation.

• 3.2.6. Corrected Violation—The EC determines that any violation it might find already has been or is being corrected and that this is an adequate result in the given case.

• 3.2.7. Other Good Cause

3.3. Investigator and EC (Avoidance of Conflict of Interest)

The investigator chosen shall not have a conflict of interest (i.e., shall never have had a substantial professional, personal, financial, business, or volunteer relationship with either the Complainant or the Respondent). In the event that the EC staff liaison has such a conflict, the EC Chairperson shall appoint an alternate investigator who has no conflict of interest. Any member of the EC with a possible conflict of interest must disclose and may be recused.

3.4. Investigation

If an investigation is deemed warranted, the EC Chairperson shall do the following within thirty (30) days: Appoint the EC staff liaison at the Association headquarters to investigate the complaint and notify the Respondent by certified mail with return receipt and by email with delivery confirmation that a complaint has been received and an investigation is being conducted. A copy of the complaint and supporting documentation shall be enclosed with this notification. The Complainant also will receive notification by certified mail with return receipt and by email with delivery confirmation that the complaint is being investigated.

• 3.4.1. Ordinarily, the Investigator will send questions formulated by the EC to be answered by the Complainant and/or the Respondent.

• 3.4.2. The Complainant shall be given thirty (30) days from receipt of the questions (if any) to respond in writing to the investigator.

• 3.4.3. The Respondent shall be given thirty (30) days from receipt of the questions to respond in writing to the Investigator.

• 3.4.4. The EC ordinarily will notify the Complainant of any substantive new evidence adverse to the Complainant’s initial complaint that is discovered in the course of the ethics investigation and allow the Complainant to respond to such adverse evidence. In such cases, the Complainant will be given a copy of such evidence and will have fourteen (14) days in which to submit a written response. If the new evidence clearly shows that there has been no ethics violation, the EC may terminate the proceeding. In addition, if the investigation includes questions for both the Respondent and the Complainant, the evidence submitted by each party in response to the investigatory questions shall be provided to the Respondent and available to the Complainant on request. The EC may request reasonable payment for copying expenses depending on the volume of material to be sent.

• 3.4.5. The Investigator, in consultation with the EC, may obtain evidence directly from third parties without permission from the Complainant or Respondent.

3.5. Investigation Timeline

The investigation will be completed within ninety (90) days of the Respondent or his or her designee receiving notification that an investigation is being conducted, unless the EC determines that special circumstances warrant additional time for the investigation. All timelines noted here can be extended for good cause at the discretion of the EC, including the EC’s schedule and additional requests of the Respondent. The Respondent and the Complainant shall be notified in writing if a delay occurs or if the investigational process requires more time.

3.6. Case Files

The investigative files shall include the complaint and any documentation on which the EC relied in initiating the investigation.

3.7. Cooperation by Respondent

Every Respondent has a duty to cooperate reasonably with enforcement processes for the Code. Failure of the Respondent to participate and/or cooperate with the investigative process of the EC shall not prevent continuation of the ethics process, and this behavior itself may constitute a violation of the Code.

3.8. Referral of Complaint

The EC may at any time refer a matter to NBCOT, the SRB, the Accreditation Council for Occupational Therapy Education (ACOTE^®), or other recognized authorities for appropriate action. Despite such referral to an appropriate authority, the EC shall retain jurisdiction. At the discretion of the EC, EC action may be stayed for a reasonable period pending notification of a decision by that authority; stays of action will extend the time periods under these Procedures. A stay in conducting an investigation shall not constitute a waiver by the EC of jurisdiction over the matters. The EC shall provide written notice by certified mail with return receipt and by email with delivery confirmation to the Respondent and the Complainant of any such stay of action.

4. EC Review and Decision

4.1. Regular Complaint Process

• 4.1.1. Decision—If at the conclusion of the investigation the EC determines that the Respondent has engaged in conduct that constitutes a breach of the Code, the EC shall notify the Respondent and Complainant by certified mail with return receipt and by email with delivery confirmation. The notice shall describe in sufficient detail the conduct that constitutes a violation of the Code and indicate the sanction that is being imposed in accordance with these Enforcement Procedures.

• 4.1.2. Respondent’s Response—Within 30 days of notification of the EC’s decision and sanction, if any, the Respondent shall choose one of the following:

•  Failure of the Respondent to take one of these actions within the time specified will be deemed to constitute acceptance of the decision and sanction. If the Respondent requests a Disciplinary Council hearing, it will be scheduled. If the Respondent does not request a Disciplinary Council hearing but accepts the decision, the EC will notify all relevant parties and implement the sanction. Correspondence with the Respondent will also indicate that public sanctions may have an impact on their ability to serve in Association positions, whether elected or appointed, for a designated period of time.

4.2. De Jure Complaint Process

• 4.2.1. The EC staff liaison will present to the EC any findings from external sources (as described above) that come to his or her attention and that may warrant sua sponte complaints pertaining to individuals who are or were Association members at the time of the alleged incident.

• 4.2.2. Because de jure complaints are based on the findings of fact or conclusions of another official body, the EC will decide whether or not to act based on such findings or conclusions and will not ordinarily initiate another investigation, absent clear and convincing evidence that such findings and conclusions were erroneous or not supported by substantial evidence. Based on the information presented by the EC staff liaison, the EC will determine whether the findings of the public body are also sufficient to demonstrate an egregious violation of the Code and therefore warrant taking disciplinary action.

• 4.2.3. If the EC decides that a breach of the Code has occurred, the EC Chairperson will notify the Respondent in writing of the violation and the disciplinary action that is being taken. Correspondence with the Respondent will also indicate that public sanctions may have an impact on his or her ability to serve in Association positions, whether elected or appointed, for a designated period of time. In response to the de jure sua sponte decision and sanction by the EC, the Respondent may choose one of the following:

• 4.2.4. In cases of de jure complaints, a Disciplinary Council hearing can later be requested (pursuant to Section 5 below) only if the Respondent has first exercised Options 4.2.3.2 or 4.2.3.3.

• 4.2.5. Respondents in an ethics case may utilize Options 4.2.3.2 or 4.2.3.3 (reconsideration) once in responding to the EC. Following one review of the additional information submitted by the Respondent, if the EC reaffirms its original sanction, the Respondent has the option of accepting the violation and proposed sanction or requesting a Disciplinary Council hearing. Repeated requests for reconsideration will not be accepted by the EC.

5. Disciplinary Council

5.1. Purpose

The purpose of the Disciplinary Council (hereinafter to be known as the Council) hearing is to provide the Respondent an opportunity to present evidence and witnesses to answer and refute the decision and/or sanction and to permit the EC Chairperson or designee to present evidence and witnesses in support of the EC decision. The Council is convened upon request and shall consider the matters alleged in the complaint; the matters raised in defense; and other relevant facts, ethical principles, and federal or state law, if applicable. The Council may question the parties concerned and determine ethical issues arising from the factual matters in the case even if those specific ethical issues were not raised by the Complainant. The Council also may choose to apply Principles or other language from the Code not originally identified by the EC. The Council may affirm the decision of the EC or reverse or modify it if it finds that the decision was clearly erroneous or a material departure from its written procedure.

5.2. Parties

The parties to a Council Hearing are the Respondent and the EC Chairperson.

5.3. Criteria and Process for Selection of Council Members

• 5.3.1. Criteria

5.4. Criteria and Process for Selection of Council Chairperson

• 5.4.1. Criteria

• 5.4.2. Process

5.5. Process

• 5.5.1. Potential candidates for the Council pool will be recruited through public postings in official publications and via the electronic forums. Association leadership will be encouraged to recruit qualified candidates. Potential members of the Council shall be contacted to ascertain the following:

• 5.5.2. The EC staff liaison will maintain a pool of no less than six (6) and no more than twelve (12) qualified individuals.

• 5.5.3. The President, with input from the EC staff liaison, will select from the pool the members of each Council within thirty (30) days of notification by a Respondent that a Council is being requested.

• 5.5.4. Each Council shall be composed of three (3) Association members in good standing and a public member.

• 5.5.5. The EC staff liaison will remove anyone with a potential conflict of interest in a particular case from the potential Council pool.

5.6. Notification of Parties (EC Chairperson, Complainant, Respondent, Council Members)

• 5.6.1. The EC staff liaison shall schedule a hearing date in coordination with the Council Chairperson.

• 5.6.2. The Council (via the EC staff liaison) shall notify all parties at least forty-five (45) days prior to the hearing of the date, time, and place.

• 5.6.3. Case material will be sent to all parties and the Council members by national delivery service or certified mail with return receipt. It may also be sent by email, if feasible, with delivery confirmation.

5.7. Hearing Witnesses, Materials, and Evidence

• 5.7.1. Within thirty (30) days of notification of the hearing, the Respondent shall submit to the Council a written response to the decision and sanction, including a detailed statement as to the reasons that he or she is appealing the decision and a list of potential witnesses (if any) with a statement indicating the subject matter they will be addressing.

• 5.7.2. The Complainant (EC Chairperson) before the Council also will submit a list of potential witnesses (if any) to the Council with a statement indicating the subject matter they will be addressing. Only under limited circumstances may the Council consider additional material evidence from the Respondent or the Complainant not presented or available prior to the issuance of their proposed sanction. Such new or additional evidence may be considered by the Council if the Council is satisfied that the Respondent or the Complainant has demonstrated the new evidence was previously unavailable and provided it is submitted to all parties in writing no later than fifteen (15) days prior to the hearing.

• 5.7.3. Disciplinary council hearings are held by conference call with the Association legal counsel and EC staff liaison on site in the Association headquarters. If alternative technology options are available for the hearing, the Respondent, Council members, and EC Chairperson shall be informed when the hearing arrangements are sent. The Council Chairperson may permit testimony by conference call (at no expense to the participant), limit participation of witnesses in order to curtail repetitive testimony, or prescribe other reasonable arrangements or limitations. The Respondent may elect to appear (at Respondent’s own expense) in the Association headquarters and present testimony.

5.8. Counsel

The Respondent may be represented by legal counsel at his or her own expense. Association legal counsel shall advise and represent the Association at the hearing. Association legal counsel also may advise the Council regarding procedural matters to ensure fairness to all parties. All parties and the Association legal counsel (at the request of the EC or the Council) shall have the opportunity to question witnesses.

5.9. Hearing

• 5.9.1. The Council hearing shall be recorded by a professional transcription service or telephone recording transcribed for Council members and shall be limited to two (2) hours.

• 5.9.2. The Council Chairperson will conduct the hearing and does not vote.

• 5.9.3. Each person present shall be identified for the record, and the Council Chairperson will describe the procedures for the Council hearing. An oral affirmation of truthfulness will be requested from each participant who gives factual testimony in the Council hearing.

• 5.9.4. The Council Chairperson shall allow for questions.

• 5.9.5. The EC Chairperson shall present the ethics complaint, a summary of the evidence resulting from the investigation, and the EC decision and disciplinary action imposed against the Respondent.

• 5.9.6. The Respondent may present a defense to the decision and sanction after the EC presents its case.

• 5.9.7. Each party and/or his or her legal representative shall have the opportunity to call witnesses to present testimony and to question any witnesses including the EC Chairperson or his or her designee. The Council Chairperson shall be entitled to provide reasonable limits on the extent of any witnesses’ testimony or any questioning.

• 5.9.8. The Council Chairperson may recess the hearing at any time.

• 5.9.9. The Council Chairperson shall call for final statements from each party before concluding the hearing.

• 5.9.10. Decisions of the Council will be by majority vote.

5.10. Disciplinary Council Decision

• 5.10.1. An official copy of the transcript shall be sent to each Council member, the EC Chairperson, the Association legal counsel, the EC staff liaison, and the Respondent and his or her counsel as soon as it is available from the transcription company.

• 5.10.2. The Council Chairperson shall work with the EC staff liaison and the Association legal counsel in preparing the text of the final decision.

• 5.10.3. The Council shall issue a decision in writing to the ED within thirty (30) days of receiving the written transcription of the hearing (unless special circumstances warrant additional time). The Council decision shall be based on the record and evidence presented and may affirm, modify, or reverse the decision of the EC, including increasing or decreasing the level of sanction or determining that no disciplinary action is warranted.

5.11. Action, Notification, and Timeline Adjustments

• 5.11.1. A copy of the Council’s official decision and appeal process (Section 6) is sent to the Respondent, the EC Chairperson, and other appropriate parties within fifteen (15) business days via certified mail with return receipt and by email with delivery confirmation after notification of the ED.

• 5.11.2. The time limits specified in the Enforcement Procedures may be extended by mutual consent of the Respondent, Complainant, and Council Chairperson for good cause by the Chairperson.

• 5.11.3. Other features of the preceding Enforcement Procedures may be adjusted in particular cases in light of extraordinary circumstances, consistent with fundamental fairness.

5.12. Appeal

Within thirty (30) days after notification of the Council’s decision, a Respondent upon whom a sanction was imposed may appeal the decision as provided in Section 6. Within thirty (30) days after notification of the Council’s decision, the EC also may appeal the decision as provided in Section 6. If no appeal is filed within that time, the ED or EC staff liaison shall publish the decision in accordance with these procedures and make any other notifications deemed necessary.

6. Appeal Process

6.1. Appeals

Either the EC or the Respondent may appeal. Appeals shall be written, signed by the appealing party, and sent by certified mail with return receipt and by email with delivery confirmation to the ED in care of the Association Ethics Office. The grounds for the appeal shall be fully explained in this document. When an appeal is requested, the other party will be notified.

6.2. Grounds for Appeal

Appeals shall generally address only the issues, procedures, or sanctions that are part of the record before the Council. However, in the interest of fairness, the Appeal Panel may consider newly available evidence relating to the original complaint only under extraordinary circumstances.

6.3. Composition and Leadership of Appeal Panel

The Vice President, Secretary, and Treasurer shall constitute the Appeal Panel. In the event of vacancies in these positions or the existence of a conflict of interest, the Vice President shall appoint replacements drawn from among the other Board of Directors members. If the entire Board has a conflict of interest, the Board Appeal process (Attachment C of EC SOP) shall be followed. The President shall not serve on the Appeal Panel. No individual may serve on the Council who has previously been the subject of an ethics complaint resulting in a public disciplinary action from the EC.

The Appeal Panel Chairperson will be selected by its members from among themselves.

6.4. Appeal Process

The ED shall forward any letter of appeal to the Appeal Panel within fifteen (15) business days of receipt. Within thirty (30) days after the Appeal Panel receives the appeal, the Panel shall determine whether a hearing is warranted. If the Panel decides that a hearing is warranted, timely notice for such hearing shall be given to the parties. Participants at the hearing shall be limited to the Respondent and legal counsel (if so desired), the EC Chairperson, the Disciplinary Council Chairperson, the Association legal counsel, or others approved in advance by the Appeal Panel as necessary to the proceedings. The Appeal Panel hearing will be recorded and a transcript sent to all parties.

6.5. Decision

• 6.5.1. The Appeal Panel shall have the power to (a) affirm the decision; or (b) modify the decision; or (c) reverse or remand to the EC, but only if there were procedural errors materially prejudicial to the outcome of the proceeding or if the Council decision was against the clear weight of the evidence.

• 6.5.2. Within thirty (30) days after receipt of the appeal if no hearing was granted, or within thirty (30) days after receipt of the transcript of an Appeal hearing if held, the Appeal Panel shall notify the ED of its decision. The ED shall promptly notify the Respondent, the original Complainant, appropriate Association bodies, and any other parties deemed appropriate (e.g., SRB, NBCOT). For Association purposes, the decision of the Appeal Panel shall be final.

7. Notifications

All notifications referred to in these Enforcement Procedures shall be in writing and shall be delivered by national delivery service or certified mail with return receipt and by email with delivery confirmation.

8. Records and Reports

At the completion of the enforcement process, the transcriptions, written records and reports that state the initial basis for the complaint, material evidence, and the disposition of the complaint shall be retained in the Association Ethics Office for a period of five (5) years.

9. Publication

Final decisions will be publicized only after any appeal process has been completed.

10. Modification

The Association reserves the right to (a) modify the time periods, procedures, or application of these Enforcement Procedures for good cause consistent with fundamental fairness in a given case and (b) modify its Code and/or these Enforcement Procedures, with such modifications to be applied only prospectively.