Disciplinary Action in and out of the Commonwealth of Pennsylvania

Today I write about a 2004 Pennsylvania Supreme Court decision which discussed the implication of a foreign jurisdiction’s disciplinary actions on Pennsylvania licensees and Pennsylvania’s ability to use that disciplinary record in a Pa disciplinary proceeding. In the consolidated cases of Kahn and Butt v State Board of Auctioneers, 577 PA. 166 (2004), the Pennsylvania Supreme Court addressed the issue of when can an uncontested foreign discipline for minor violations of another jurisdiction’s professional licensing regulations form the basis for a reciprocal discipline by a Commonwealth of Pennsylvania licensing board. In each case the disciplinary agreements in the foreign discipline included language specifically stating that such “did not constitute wrongdoing” and “should not be characterized as a disciplinary action by Pennsylvania.”

The court determined that in order to render the imposition of a reciprocal discipline improper, a petitioner must show that 1) no disciplinary action was taken in the foreign disciplinary proceeding; 2) a pending appeal from the disciplinary action; 3) the foreign disciplinary proceeding lacked the fundamental due process afforded in Pennsylvania; or 4) the misconduct established in the foreign disciplinary action is a substantially different discipline in the Commonwealth Pennsylvania.

With these guide posts in mind, it is important to fight every out-of-state disciplinary action and consider its potential affect on your Pennsylvania license. When being disciplined out-of-state, do not stipulate in any disciplinary agreement that your behavior constituted a violation of that jurisdiction’s regulatory scheme. This will insure that the Commonwealth cannot claim the foreign discipline constitutes a per se violation of the Commonwealth’s disciplinary scheme.

Kahn addressed this significant issue because in his case, the foreign disciplinary action was entered based upon an agreement that did not include an admission or finding of guilt of a foreign violation, but rather simply an agreement for a sanction. Kahn argued that as such, there was no predicate violation for the PA Auctioneer Board to summarily find a violation and impose a penalty.

For the first time, the Supreme Court ruled that such an order does not constitute an automatic basis for discipline in the Commonwealth of Pennsylvania. In Kahn the Pennsylvania Board of Auctioneers argued the sanction provided the justification for the finding of a per se violation and thus the discipline of Kahn. The Court ruled that the licensing board was precluded from imposing a reciprocal discipline when there is no discipline admitting any wrongdoing.

Kahn also argued that he was denied due process in the other jurisdiction, not Pennsylvania, but that Pennsylvania’s court could rectify this by not imposing discipline. The court disagreed finding that when Pennsylvania’s reciprocal licensing board provides notice of the intended discipline, the charges, and the ability to respond and testify and present evidence, Pennsylvania satisfies its procedural due process requirements. It is not for the Pennsylvania Board to rectify the foreign jurisdiction’s deficient procedural due process violation. As such you must respond in both jurisdictions because once a discipline has been meted out in a foreign jurisdiction, Pennsylvania will use it against you.

Please call me to discuss your foreign jurisdiction disciplinary proceedings and their effect on your Pennsylvania license

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