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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