Why Legalization of Pot Will Not and Should Not Work

Trending successes in the quest for the legalization of medical marijuana screeched to a halt today, stopped by our nation’s citizens’ right to be safe in hospitals, highways, and other professional endeavors. The Colorado Supreme Court, in Coats v. Dish Network, affirmed an employment related firing of a Dish Network employee who tested positive for marijuana, in violation of the company’s zero tolerance drug free work place rules.

Mr. Coats a quadriplegic,  wheelchair bound his teen years. Current medical conditions cause continued suffering, warranting in home legal medical marijuana use consistent with his lawfully secured pot license and Colorado State law. Coats, however, secured a job as a telephone customer service representative (not even a driver servicing homes), who tested positive for THC in a random Dish Network employment related drug test.  He was summarily fired.

Coats filed suit, claiming his registration as a medical marijuana patient excused his legal, private, medical-based drug use under Colorado State law. He claimed Colorado’s employment related statute protected his “at least lawful” medical marijuana use. The Colorado Supreme Court rejected this claim.

Dish network, similar to many other employers across the country, has a zero tolerance drug testing policy. The language of the policy states that any drug use must be “lawful activity”. This means you must have a prescription for a legal medication identified as such under federal DEA regulations. Pot is not one of them. The Colorado Supreme Court determined that because medical marijuana is a state right and not a federal “lawful” activity, Dish Network properly terminated Coats for violating its legal work place rule.

A random employment relate drug test in many companies around the country – in pot legal states or not – will, typically, reveal personal, medicinal or not, marijuana use. Employment termination for violating companies’ drug policy happens every day.  The issue here was Coats’ allegations of wrongful termination stemmed from his state based lawful activities off the premises. The Colorado Supreme Court rightly rejected this argument.

The court reviewed the basic premise that under federal law marijuana use and possession is still not lawful. The court contrasted this premise with Colorado’s medical marijuana laws that recognize medical marijuana use as lawful. The court concluded, however, that the supremacy of federal law still makes any medical marijuana use not “lawful”.

Colorado’s employment related termination statute had not been amended since its legislature created the medical marijuana laws. Consequently, the employment related statute does not identify lawful activity to be that under state or federal law. This is a huge issue.

Coats had to acknowledge the federal Controlled Substance Act prohibits medical marijuana use, (identifying it as a Schedule I narcotic having no medical excepted use, a high risk of abuse, and a lack of excepted safety). The court referenced federal allowance of pot use in research projects, but no exceptions for medicinal or personal use. Clinging to the Supremacy Clause, the Colorado Supreme Court concluded the because of the federal proscription of medical marijuana, Coats’ medical marijuana use was unlawful under federal law, and, therefore unlawful under Colorado’s employment related termination statutes. Unless state law is explicitly altered to preclude termination based upon state law and not general “lawful activity”, Federal law controls in this area of employment related litigation.

This is a clear public policy statement. Coats is the perfect plaintiff. His medical condition is clear and his does not work in public safety position. Nonetheless, the court’s rejection of the state based legal pot defense, enforcing a very vanilla drug free work rule utilized by a national company against a quadriplegic, is a clear message — companies that want a drug free work place can have one and our nation’s citizens can fee safe utilizing those companies.

The policy decision and practical implications of this case nationwide and in Pennsylvania are enormous. This interpretation of an employment related statute is congruent with Pennsylvania’s 26 licensing schemes addressing illegal conduct. Currently, any unlawful conduct (testing positive for marijuana use) is already a basis for disciplinary action under various boards’ licensing scheme.

The legalization of marijuana in Pennsylvania would necessarily require a public policy decision to alter each of these licensing schemes and their enforcement mechanisms. It is doubtful such would occur because the Pennsylvania’s professional boards want Pennsylvania’s citizens to know the professionals they rely upon in every day life are drug-free and not impaired by the use of an illegal Schedule I controlled substance.

Said another way, Pennsylvania’s licensing boards want competent, unimpaired professionals in hospitals, nursing homes, medical offices, hospices, builders, architects, accountants, and the like helping and professionally serving Pennsylvania’s residents. Allowing the medical use of marijuana for medical registered non-professionals may proceed. But this will be in conflict with many other citizens rights to receive unimpaired professional services. Employers’ and drug-free citizens’ rights will trump the minority who wish to get high on pot.

Conservative state legislatures will continue to enforce employers’ right to have a drug-free workplace. This will allow employers to utilize the federal policy on pot to insure a safe workplace staffed by unimpaired, drug-free workers. Whether it be on our nation’s highways, union workers building bridges, buildings, or professionals caring for our nation’s sick, states will continue to demand lawful, unimpaired workers staffing these jobs. Employers will choose unimpaired, drug-free workers who choose professions over drug use.

The legalization of pot should not and will not change this broader policy consideration. The wants of the few will not out-weigh the needs of the many when balanced against public safety.

Practice and Non-Practice Related Unethical Conduct

Practice and Non-Practice Related Unethical Conduct.

Practice and Non-Practice Related Unethical Conduct

A fertile area of Commonwealth of Pennsylvania professional license prosecutions are those stemming from licensees convicted of unethical criminal conduct. Disciplinary action originates from several types of criminal conduct. The first realm is crimes of moral turpitude – theft offenses –  involving or not a professional license. The second area focuses on crimes that involve the drug act and medical fraud.  The third strand of cases  involves general criminal behavior – DUI’s — not related to the practice of the license.  The final area is general unethical criminal conduct related or not to the practice of one’s license.

The recent decision of Kirkpatrick v. The Bureau Of Professional And Occupational Affairs focuses on a criminal conviction of a sex offense not involving the license.  The prosecutor sought disciplinary action alleging the criminal conviction based upon a no contest plea to a misdemeanor sex offense violated the ethics clause of the Barber’s regulatory scheme.  No argument was made that this was a crime of moral turpitude!

Kirkpatrick was prosecuted by the State Board of Barber Examiners. The ethics clause in that scheme is slightly different than those in Pennsylvania’s twenty six other disciplinary schemes. The Barber rules state that the Board may “suspend or revoke a license if a person engages in unethical or dishonest practice or conduct, or violate any of the provisions of this act, or any rules or regulations of the board.” This limits an ethics based disciplinary action to only license related conduct.

Kirkatrick plead no contest to one misdemeanor count of indecent assault – not work related.  Procedurally, at the Board hearing the prosecution moved the no contest plea into the record, no facts thereof, and rested its case. Kirkpatrick testified as to his compliance with the probation and presented legal argument maintaining that the no contest plea was not sufficient evidence for the Board to rely upon to support a finding that he engaged in unethical conduct while practicing.

Unique to this case is that the prosecution sought discipline solely based upon the unethical conduct clause of the Board regulations. As such, the prosecutors had to prove that the ethical conduct, the criminal conviction, was related to the practice as a barber. The Commonwealth did not present any independent evidence of Kirkpatrick’s criminal conduct. As is typical, the prosecutor simply moved in the certified criminal record from the county court.

In reviewing the evidence and the case law, the hearing officer concluded the Commonwealth did not meet its burden of proof that Kirkpatrick engaged in unethical conduct relating to the practice of his license and therefore dismissed the prosecution. Timely briefs were filed and the State Board of Barber Examiners rejected the hearing officer’s proposed adjudication. Rather, the Board found that the elements of the offense to which respondent plead no contest sufficiently met the ethics clause in its regulatory scheme and revoked his license.

On appeal to the Commonwealth Court respondent claimed the Board committed an error of law. This allowed the Commonwealth Court to engage in a de novo or complete, review of the record rather than being deferential to the professional board’s imposed discipline. This significant legal strategy changed the way the Commonwealth Court was allowed to review the of Barber Board’s decision. This legal maneuver stripped the Board of its deferential decision making process. Claiming an error of law opened the legal door for the Commonwealth Court to review and interpret the statute itself rather than defer to the Board’s interpretation.

In so doing, the appellate court found that the regulatory scheme allowing discipline for unethical conduct only applied to those acts engaged in while utilizing the license. The Court rejected the prosecution’s expensive interpretation of any unethical conduct not related to the use of one’s license. It was nice to see the court objectively evaluating the statutory scheme and reigning in broad prosecutorial interpretations of its ability to discipline a licensee.

Significantly, the Barber licensing scheme is different from that of CPAs, dentists, podiatrists, nurses, and doctors, that allow for discipline based upon a conviction, plea, or some finding of guilt for unethical conduct not practice related. The appellate court reviewed each of these licensing board’s statutory provisions that authorize suspension or revocation based upon a conviction of, or guilty or no contest plea to, a particular type crime. The Court found the Barber statute did not include the same disciplinary action for non-practice conduct.

Finally, the board took to task the Barber Board’s expansive interpretation of its disciplinary authority under its regulatory scheme absent legislative guidance of specific or established standards set forth in its regulatory provisions. The court noted that the Barber Act did not set forth specific conduct or standards, found in other statutes, that could constitute the basis for discipline under the unethical or dishonest practice or conduct clause of its Act.  The court worried about the Barber Board’s expansive interpretation of its ability to exercise its discretion without legislative guidance. The court concluded that absent clear legislative instruction similar to other regulatory disciplinary schemes, the Barber Board’s power grab was improper because the legislature could not have intended to grant it such unlimited discretion in imposing discipline for any non-practice related conduct.

Call me discuss your disciplinary case.

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