Disorderly Conduct — Moral Turpitude — Commonwealth Court Decides

Today the Commonwealth Court issues another remarkable decision involving a Pennsylvania medical professional.  Dunagan v. BPOA, 2019 WL 155879, is the third case in a row in which a Commonwealth Court panel has found a Pennsylvania medical related board engaged in an erroneous interpretation of the law and abuses its discretion.
In 2015, Dunagan was arrested and charged with three Drug Act violations and one Disorderly Conduct offense.  The charges stem from a police investigation that revealed Dunagan possessed a small amount of drugs and drug contraband.  The Disorderly Conduct offense is based upon Dunagan’s behavior during the search warrant execution. Dunagan’s criminal defense attorney negotiated dismissal of the Drug Act offenses and a guilty plea to the Disorderly Conduct offense.  This is a great legal tactic.  A medical professional who pleads guilty to a Drug Act violation is subject to an automatic one year license suspension and forced PHMP/DMU enrollment.  Dunagan’s plea avoided this result.

 

Dunagan properly reported her arrest to the BPOA.  Observing Drug Act offenses, a Nursing Board prosecutor filed an Order to Show seeking discipline Dunagan for her misdemeanor Disorderly Conduct guilty plea.  Ordinarily, Disorderly Conduct – charged either as summary offense or a misdemeanor –  is not a trigger for disciplinary action.  However, the Board prosecutor, with the support of his supervisors as a policy decision, subversively sought to discipline Dunagan for her drug related criminal conduct – not really the Disorderly Conduct offense to which she plead guilty.  This is outrageous.
Before the hearing examiner and Nursing Board, the prosecutor argues discipline should be based all facts of the criminal charges, not just the Disorderly Conduct behavior.  This is more facts than those essential elements of the Disorderly Conduct offense.  The prosecutor also maintains the facts giving rise to Dunagan’s guilty plea constitutes “a crime of moral turpitude” to which the Board may exercise its discretion and discipline Dunagan as it wishes.

 

The Hearing Examiner, rejecting this position, rules Disorderly Conduct is not a crime of moral turpitude and dismisses the Order to Show Cause.  The Board rejects the Hearing Officer’s Proposed Adjudication, finding Dunagan’s tumultuous behavior in the execution of a search warrant is a crime of moral turpitude.  The Board suspends Dunagan’s license for six months.

 

Obviously the decision is based upon the drug offenses that were dismissed and to which the Board could NOT force Dungan into the DMU/PHMP or automatically suspend her license under the Drug Act and CHIRA.
Dunagan appeals.  The Commonwealth Court reverses the Nursing Board decision.   The appellate court reviews much case law and facts and concludes Dunagan’s conduct resulting in a Disorderly Conduct guilty plea cannot and does not constitute moral turpitude.  The Court states

 

“A determination of whether a crime involves moral turpitude will be determined based solely upon the elements of the crime. The underlying facts or details of an individual criminal charge, indictment or conviction are not relevant to the issue of moral turpitude.” 22 Pa. Code § 237.9(b); see also Startzel v. Department of Education, 562 A.2d 1005, 1007 (Pa. Cmwlth. 1989) (“Determination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime.”).

 

The Court rules a six month professional license suspension is 1) an abuse of discretion, 2) a guilty plea to a Disorderly Conduct offense is neither a crime of moral turpitude nor a basis to suspend or revoke a professional licensees license, and 3) citing her need to earn a living and work – that the case facts are not health related  — there is no justifiable necessity to protect the public from her conduct.
This case reveals the extreme prosecutorial environment in which all Pennsylvania licensees now practice. Medical marijuana is the prime influencer of this case. Many Drug Act possessory offenses result in either original charges of Disorderly Conduct or evolve into a guilty plea to a Disorderly Conduct offense. A summary Disorderly Conduct offense is not a conviction under the Drug Act. As a result, Pennsylvania’s health related boards are not able to automatically suspend a license or commence disciplinary process predicated on a drug possessory offense.

 

BPOA prosecutors tried to secure Commonwealth Court case law stating a summary offense, whether a crime of moral turpitude or not, is a valid discretionary basis to suspend and discipline a medical related board licensees license.  The Commonwealth Court said no.
More importantly, at the Board hearing the attorney did not properly protect the record. I have written that factual allegations contained in an Order to Show Cause can only be those related to the criminal convicted charges, not allegations that are dropped or dismissed. Facts related to  dismissed, withdrawn, or not guilty charges are not relevant or admissible in any disciplinary prosecution.
This attorney did not object to a whole set of irrelevant and inadmissible facts.  Or the licensee simply testified about everything that happened on the date and time of her arrest. This placed those facts in the record for the Nursing Board to consider. It did consider the entire case facts, knew the case was about drugs, and suspended her license.  Both the legal strategy and Board conduct was improper. Call me to discuss your case.

The PHMP, Kevin Knipe, Pharmacy Board, and an Abuse of Discretion

The PHMP, it’s caseworkers and director Kevin Knipe’s treatment of licensees is a major topic of my blogs and website. I routinely field inquiries regarding false positive drug tests, chain of custody issues, and other PHMP claimed violations. How do I get out of the PHMP is the most consistent PHMP question. Getting out of the PHMP

Kevin Knipe rules his PHMP fiefdom and its workers.  He gives them a script to follow, instructs no compassion is allowed, and they do not possess authority to vary from his rule of law.  In this era of medical marijuana and opiate addiction Pennsylvania’s health care licensing boards adopted his tough stance to licensees in the PHMP.  The Boards deferred much, if not all, of their discretion to his authority.  That is wrong.  The Commonwealth Court decision in my case, Kenney v. BPOA – Pharmacy Board, tells the Boards to take back their authority!

I am fortunate to represent Mr. Kenney, a pharmacist who is 100% compliant with all PHMP terms and conditions.  He timely sought proper termination of his PHMP probation and end Knipe’s and Kathy Simpson’s incessant limitations on his license. PHMP case worker Simpson agreed initially to let him out of the program.  Kevin Knipe got wind of this position the day before a hearing and overruled her. The Pharmacy Board acquiesced to Knipe’s dictates and denied Kenney’s petition.

I was hired to seek reconsideration of this denial before the Pharmacy Board and then appeal to Commonwealth Court if reconsideration was rejected.  It was.  On appeal my strategy was to argue the Pharmacy Board ignored the factual record, thereby abusing its discretion. My blogs talk about this issue.

Kenney is at least six years sober and compliant with every PHMP condition. On appeal, the Board and Knipe maintained Kenney did not use the proper form seeking early termination.  Knipe testified before the Pharmacy Board that he was worried about other petitions to terminate that would be filed if the Pharmacy Board approved Kenney’s Petition.  The Pharmacy Board agreed!

The Commonwealth court found this position outrageous.  It took Knipe, the PHMP, and the Pharmacy Board out to the “legal” woodshed and gave them a whipping. The Court quotes Knipe’s concern that early termination of PHMP monitoring will not be well received in the court of public opinion and could expose the PHMP to liability. The court rejected this reasoning, summarily stating, “The Board erred in relying on Knipe’s testimony because it was a based upon the PHMP’s inflexible policy, not the licensee’s record, and a mischaracterization of testimony.”  PHMP’s inflexible policy not based upon the licensee’s record.!!!

The court turned its ire to the Pharmacy Board’s acceptance of Knipe’s claims that PHMP consent agreements barred licensees from petitioning for early termination. The Court ruled the PHMP Consent Agreement/Orders are contracts; that Knipe and PHMP’s interpretation that they controlled termination approval rendered the contract illusory (illegal).

In evaluating the contract, the court rules as a matter of law that the period of probation may be extended or modified – – reduced – – and that the Pharmacy Board, not Knipe or the PHMP, controls modification. The rules as a matter of law the PHMP does not control the decision on early termination of probation petitions. “It is inappropriate for the Pharmacy  and all other Board which utilize the same consent agreements, to delegate its final decision making responsibilities to the PHMP.”

This is the decision’s important holding. The licensing board, not the PHMP, interprets the consent agreements into which it enters. The PHMP may manage the probationers.  It does not have a statutory authority to run rough shot over these licensees.

The Court rejects PHMP’s claim of God, sobriety, and public and patient safety override licensee’s constitutional and statutory property rights.  The Court tells licensing boards to take back their statutory authority; to allow its prosecutors, not the PHMP or Knipe, to modify consent agreement terms. PHMP’s one size fits all uniform enforcement practice against every PHMP monitored licensee is wrong.

Whether a nurse, physician, pharmacist, respiratory therapist, physician assistant, the PHMP, SARPH, PNAP, PHP has ruled professionals’ lives with an iron fist.  PHMP claimed it had the legal authority based upon the consent agreement. This decision says that the licensing boards have improperly abrogated their authority to the PHMP.

Let me help you file your petition to terminate the PHMP program and tell your licensing board that Kevin Knipe and his minions no longer control your life.

Criminal Conviction – Professional License Suspensions and Mitigation Evidence

The Criminal History Record Information Act, 18 Pa. C.S. § 9124(c)(1) (CHIRA), requires Pennsylvania’s licensing boards consider criminal convictions disclosed on license applications or which take place after licensure as a reason to discipline active licensees. Different licensing boards apply CHIRA’s rules differently.

On February 28, 2018 Commonwealth Court decided Bentley vs. BPOA, — A.3d —- (2018).  This cases expounds on how a licensing board abuses its discretion when it disciplines a licensee for criminal conduct not related to their license. In 2013 and 2014, Cosmetologist Bentley was convicted in two separate cases of possession with intent to deliver a controlled substance, forgery, aggravated assault, escape, and attempting to allude the police. Wow.

Bentley reported the convictions to her Board, which issued a Rule to Show Cause seeking to discipline her license under CHIRA.  At the hearing, the Cosmetology Board prosecutor only presented the certified criminal conviction. This is the typical prosecutor practice.  No witness testified as to the underlying criminal conduct.

It is important to have competent counsel at this hearing.  Counsel should object to inadmissible portions of the certified conviction documents. Objections to hearsay statements in affidavits of probable cause eliminate statements of people not present at the hearing.  The licensee can not cross-examine that witness.   I always have these documents paired down and limited.  My client/licensee’s explanation of the criminal case is the only version of events. Consistent Nguyen v. BPOA, licensees are allowed to explain their role in any multi-defendant criminal case. They may explain a co-defendant’s greater role than their own.

During her hearing, through counsel, Bentley presented significant and appropriate mitigation evidence. Mitigation evidence included the delay of the prosecution versus the time of the criminal act; new and abundant family support; full and complete responsibility for the criminal act; the unique set of factors leading up to the criminal charges and her association with her then boyfriend and now co-defendant.  Most importantly, she described her rehabilitation while in state prison. This rehabilitation included anger management, employment/cosmetology training, and new religious faith. She presented reasonable and appropriate community reputation evidence. This evidence corroborated her claim of being rehabilitated, remorseful for her actions, and turning over a new leaf.

The hearing officer suspended Bentley’s license for the balance of her parole (probably not long). The Cosmetology Board, as all boards do, issued a notice of intent to review the hearing officer’s decision.  The Cosmetology Board rejected as modest Bentley’s mitigation evidence. The board suspended Bentley’s cosmetology license for three years based upon the criminal convictions. The Board rejected Bentley’s need for licensure to remain employed, her rehabilitation, and need to support herself.

Bentley appealed to the Commonwealth Court.  She claimed the Board abused its discretion when it rejected her mitigation evidence and suspended her license based solely on the criminal convictions.  Bentley alleged that the Board summarily ignored all of her uncontested mitigation evidence, which was not contradicted by any evidence the Commonwealth introduced in the certified criminal conviction. Bentley argued the suspension was manifestly unreasonable because the convictions bore no relation to the practice of cosmetology. Arguing the Board’s conduct capriciously disregarded her mitigation evidence absent explanation was an abuse of discretion.

On review the Commonwealth court agreed. Commonwealth Court defines capricious disregard as “when there is a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinarily intelligence could not possibly have avoided in reaching a result. When strong evidence contradicts contrary evidence, the adjudicator must explain the basis for its determination.” Absent a proper explanation why the adjudicator is rejecting overwhelming critical evidence, the board abuses its discretion.

As with many of my cases the time delay between criminal event, conviction, and disciplinary action may be five or six years. I argue Board delay which allows the licensee to practice of their profession for three or four years renders mute any board allegation that there is an emergent basis for extensive discipline. Suspension or revocation is not warranted if the board took six years to do it.

Also, the Cosmetology Board licensing scheme does not authorize discipline for criminal convictions not related to the profession.   Imposing discipline based upon the convictions was an error of law.  Such also revealed ignorance of Bentley’s mitigation evidence.  The court found Bentley’s mitigation evidence unique and must be considered.

The Commonwealth Court held that the Board’s summary rejection and failure to consider it constitutes a capricious disregard of the evidence. Such is an abuse of discretion for which the Commonwealth Court rejects the board decision and sends the case back to the Cosmetology Board.

This case is an example of licensing boards tightening their belts and implementing a much stiffer enforcement environment. This appellate  decision, and several other recent cases, reveal licensing boards routinely abusing their discretion and ignoring the law that guides their decisions.  Non-law trained licensing board members shoot from the hip regarding the discipline that they want to impose upon their license fees. Many times, there is no legal basis for the discipline.

When licensees take an appeal, they have an appellate, independent, unbiased court review the nature and extent of imposed discipline.  The appellate court rejects this board’s arbitrary and capricious decision. Unfortunately this costs a lot of money. However, in many of my cases I see unfettered discretion punishing hard-working licensees that is far beyond both what is necessary and reasonable and what the licensing statutes allow.

Call me to discuss your case.  A criminal record should not be a bar to getting or keeping a license.

 

Jerry’s career took off.  So should yours.