A Refresher on Unprofessional Conduct in Pennsylvania as it Relates to Convictions for Assault

In preparation for every hearing, I review case law discussing the relevant legal issues.  One such recurrent topic is unprofessional or immoral conduct.  This is the vague Pandora’s box of behavior upon with both license revocation and denial may be based.  What is immoral conduct as it relates to physical fighting and the crime of assault.

One clear case involves a licensed social worker who pleaded guilty to two counts of simple assault, which is a 2nd degree misdemeanor.  The criminal charges arose from the licensee assaulting a former client and the client’s husband. The criminal complaint alleged that counselor had engaged in an affair with the former client and that upon traveling to the former client’s home, she attacked K and T.  The conduct resulted in convictions, for which the Board issued an Immediate Temporary Suspension order (ITS).  This is immoral conduct.  Do not go and assault a former client for anything, let alone braking of a relationship and returning to their spouse.

Another case is Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 135 Pa. Commw. 62, 578 A.2d 1355 (Pa. Cmwlth. 1990), where the Court defines crimes of moral turpitude as “anything done knowingly contrary to justice or good morals.” Foose, 578 A.2d at 1357.  Assault convictions fall within this definition because assaults “are inconsistent with the definition of good moral character [and they] involve a reprehensible state of mind.” “The reprehensible state of mind” at issue with the misdemeanors of which any licensee is convicted “is the knowing or reckless attempt to cause or causing bodily injury to another, or engaging in conduct which constitutes a physical menace intended to put another in fear of serious bodily injury.” A conviction for 1st or 2nd degree assault means you intentionally inflicted bodily injury upon that person.  Your license could be assaulted by the board for such conduct…..don’t let them do it so don’t you do it.

Sometimes a Board will distinguish third-degree misdemeanor simple assault, which involves conduct that may be lacking in a “reprehensible state of mind” that could arise in a situation such as “a fight or flight scuffle by mutual consent.” However, other Boards have been persuaded that intentional appearance at a victim’s home to conduct an assault constitutes a crime of moral turpitude. It is a reasonable interpretation and the appellate courts have concluded such.

In another case involving a teacher and his wife, the governing regulations provided that the only relevant inquiry when questioning whether a crime is one of moral turpitude relates to the particular elements of the crime committed, not to the facts underlying the particular commission of the crime. The regulatory provision at issue, 22 Pa. Code § 237.9(a), provided guidance, defining “moral turpitude” as including “reckless conduct causing bodily injury to another.” Importantly, many professional licensing regulations do not include this specific inclusive language.

Although the definition in the teacher regulations also included “conduct done knowingly contrary to justice, honesty or good morals,” some courts have opined that the term “moral turpitude” as defined in the regulation, as well as the definitions arising in other statutory contexts requires a reprehensible state of mind or mens rea. Thus, it may be an “act of baseness, vileness, or depravity, contrary to the accepted customary rule of right and duty between two human beings.” Such an act requires at least knowledge of private impropriety or the potential for social disruption. Also an act of moral turpitude may consist of intentional, knowing or reckless conduct.  A teacher, hitting his spouse, has been interpreted as depraved conduct warranting licensing revocation or discipline.

In sum, do not assault your partner, your friends, your current or former clients, and especially, strangers.  Call me to discuss your case and any criminal conviction.

 

 

 

 

Criminal Charges – Nursing Board Petitions for Mental and Physical Evaluations – Remaining Silent

Effective October 2015 Pennsylvania nurses became responsible for reporting to the State Board of Nursing any criminal arrest/charge (not just conviction). The practical impact of this new reporting regulation is now being felt.

Typically, criminal charges lodged against nurses relate to drug use or diversion and driving under the influence (DUI) of alcohol. These criminal charges, once reported, result in “Letters of Concern” from the Voluntary Recovery Program (VRP), PHMP demands for enrollment, and possible Board action.  Nurses who do not enroll in the VRP and PHMP (which they should not – see my other blogs), typically end up having filed against them a Petition for a Mental and Physical Evaluation. This is OK and not the problem, though, because now an expert will do the evaluation, not a PHMP social worker.  My many archived blogs address all aspects of the PHMP and why not to enroll.

The new wrinkle in the Petition for Mental and Physical Evaluation process, compelled via an Order to Show Cause (OSC),  is that many professionals will not have completed the criminal process involving the drug or DUI related offense. The criminal matter has yet to reach the County Common Pleas Court in which the charges originate. In some cases, the nurse has yet to be approved for ARD or even had their preliminary hearing. This is significant for the professional who is ineligible for ARD.

Professionals with prior criminal records (yes, you still can get a license or not loose one and incur a second offense) are ineligible for ARD. They must fight the DUI charge. In this context, every professional has a right to remain silent.  The Commonwealth must prove each element of each criminal offense without using the professional’s own words to secure a conviction. The professional has no obligation to make a statement in any criminal prosecution.  In Pennsylvania the professional does not have to help the prosecution prove any element of any offense lodged against them. This is the professional’s Fifth Amendment Constitutional right to remain silent.

The criminal offense reporting regulation ignores this constitutional protection.  Expedited OSC petitions compel professionals to talk. In the Mental and Physical Evaluation, the professional is extensively queried about the criminal conduct, historical criminal activity, and recreational non-prescribed drug use. These statements are not confidential.  The Petition for Mental and Physical is authorized by the Probable Cause Screening Committee and not the entire Professional Board. The expert who conducts the evaluation and authors a report to the Commonwealth eventually testifies in a formal disciplinary hearing.

Statements to the expert are now public, subject to discovery by the criminal court prosecutor.  Routine reciprocal discovery requests in criminal cases include whether the defendant has made any prior statement, admission, or testified under oath in another proceeding regarding the facts are allegations contained in the criminal matter. The expedited disciplinary process now raises the question in civil disciplinary prosecutions whether or not the professional, contesting disciplinary action, should speak and waive their constitutional right to remain silent in the criminal context.

Courts in Pennsylvania have addressed this issue in administrative driver’s license actions.  In Pennsylvania driver’s license suspension proceedings civil trial courts routinely continue the civil license suspension trial stemming from a DUI.  These twin civil/criminal prosecutions originate from the same DUI arrest investigations when the defendant refuses to submit to a breath or drugs or alcohol test.

Practically and legally, my legal advice in these representations includes advising the DUI defendant to continue the civil matter until the DUI case is closed. The nursing board, it’s infinite wisdom, either is unaware of this process or chose to ignore professionals’ Fifth Amendment right against self-incrimination.

All professionals should be aware of this conflict created by the Nursing Board in these expedited OSC petitions seeking Mental and Physical evaluations when a related DUI or other criminal matter is pending.  Please call me to discuss how to resolve this conflict and your professional license disciplinary matter.