August 2019 Legal Intelligencer article by Lamb McErlane PC partner Vasilios J. Kalogredis[i] and summer associate Isabella K. Pimentel.

On April 10, 2019, the Commonwealth Court of Pennsylvania filed a decision in Dunagan v. Bureau of Professional and Occupational Affairs, State Board of Nursing,[ii] addressing a petition for review of the Board’s decision. Even though the decision cannot be used as binding precedent, it nevertheless provides the Nursing Board and other professional boards with useful guidance. In response to the petition for review filed by Petitioner Dunagan, the Court disagreed with the Board’s application of Section 16(a)(5) of the Practical Nurse Law, which authorizes the Board to suspend or revoke a license where the licensee has been convicted of or has pleaded guilty or nolo contendere to a crime of moral turpitude.

Petitioner, Venus Q. Dunagan, holds a practical nursing license, issued on July 16, 2014. On July 21, 2015, Mrs. Dunagan was arrested and charged with three counts for drug-related offenses and a count for disorderly conduct. On March 3, 2016, Petitioner entered a plea of nolo contendere to the count of disorderly conduct, as a third degree misdemeanor, and the other three charges were nolle prossed. The Commonwealth, through its prosecuting attorney, filed an order to show cause why petitioner’s license should not be suspended or restricted, or a civil penalty be imposed for violating the law. Petitioner appeared in a hearing held on September 6, 2016, and testified on her own behalf. Ultimately, the hearing examiner reviewed the elements of the crime of disorderly conduct, analyzed petitioner’s actual sentence in comparison with her potential maximum sentence and concluded that her crime did not rise to the level of moral turpitude.

The Board conducted its own review of the record and, on March 28, 2018, issued its final adjudication reasoning that while Petitioner denied engaging in tumultuous behavior during the execution of a search warrant, the court documents showed otherwise, and thus concluding that Mrs. Dunagan’s conviction was a crime of moral turpitude and suspended her license for a period of six months. Board decisions to suspend or revoke licenses are common. The National Council of State Boards of Nursing, on its report for the years between 1996 and 2006,[iii] collected the information that, of the 126,130 actions taken, 13% (15,924) consisted of suspensions and 7% (9,201) consisted of revocations. Suspension is the second most taken action, revocation is the fifth most taken action.

As a result of the Board’s adjudication, Petitioner filed a petition for review of the Board’s decision arguing that: (1) the Board abused its discretion by imposing a six-month suspension of her license following her nolo contendere plea to a charge of disorderly conduct for tumultuous behavior because the sanction was not reasonably related to protecting health, safety, and welfare of the public; and (2) the Board erred by determining that disorderly conduct is a crime of moral turpitude.

The Board based its counterarguments on the extent of its penalty and the degree of Petitioner’s offense. The Board noted that Petitioner did not contest, by virtue of her plea, that she engaged in tumultuous behavior with intent to cause substantial harm or serious inconvenience, or persisted in engaging in tumultuous behavior after a reasonable warning or request to desist, all of which demonstrated the intentional or knowing state of mind required to amount to moral turpitude. Further, the Board contended that its decision was not an arbitrary exercise of discretion given that its sanction was substantially more lenient than the maximum authorized by the statute.

The Court found the main issue in the case to be whether the fact that Petitioner was charged with disorderly conduct as a third-degree misdemeanor, instead of a summary offense, eliminates the possibility of recklessness and automatically demands her mental state to be knowing or intentional. As per the definition of disorderly conduct, such offense is graded as a misdemeanor of the third degree when the intent of the actor is to cause substantial harm or serious inconvenience, or if she persists in disorderly conduct after reasonable warning to desist. The Court also explained the definition of moral turpitude, which includes an act of baseness, vileness, or depravity, and contrary to the accepted and customary rule of right and duty between two human beings; a conduct done knowingly contrary to justice, honesty, or good morals; or intentional, knowing, or reckless conduct causing bodily injury to another, or which, by physical menace, puts another in fear of imminent serious bodily injury. [iv] Further, the Court noted that the determination of whether a crime involves moral turpitude must be based solely upon the elements of the crime.[v]

The Court relied on the precedent in Bowalick v. Department of Education [vi] to disagree with the Board’s determination. This instructive precedent concerns a teacher who successfully appealed the summary revocation of his teacher’s certification following his guilty plea for simple assault. The court in Bowalick concluded that although several manifestations of simple assault are abhorrent, being convicted of simple assault, in the context of a fight or scuffle by mutual consent for example, does not necessarily satisfy the definition of moral turpitude. Thus, it would be incorrect to assume that simple assault is always a crime of moral turpitude.

Using the same reasoning as Bowalick, the Court here compared disorderly conduct in the context committed by the Petitioner to other crimes deemed crimes of moral turpitude. The Court exemplified that a disorderly conduct by persisting in making an unreasonable noise,[vii] or using obscene language,[viii] lacks the reprehensible state of mind for moral turpitude. Yet, even when graded as a third degree misdemeanor, disorderly conduct is wholly unlike crimes deemed of moral turpitude, such as mail fraud, theft by deception, and conspiracy to possess and distribute controlled substances.

Even though the decision may not be used as binding precedent in other matters, the Court’s explanation and determination of moral turpitude may serve as a guide to Boards, as well as to professionals and their attorneys. In particular, the Court’s analysis of the elements of the crime, especially on what concerns the comparison to other crimes of moral turpitude, will undoubtedly influence future Board decisions and hopefully provide some certainty for unlucky healthcare practitioners who find themselves in similar situations.

[i] Isabella K. Pimentel, a Summer Associate at Lamb McErlane, assisted in the preparation of this article.

[ii] Dunagan v. Bureau of Professional and Occupational Affairs, State Board of Nursing, 2019 WL 1556879 (Pa. Commonwealth 2029).

[iii] Report of Findings from AN ANALYSIS OF NURSYS® DISCIPLINARY DATA FROM 1996-2006, available at https://www.ncsbn.org/4131.htm

[iv] 22 Pa. Code § 237.9(a).

[v] 22 Pa. Code § 237.9(b).

[vi] Bowalick v. Department of Education, 840 A.2d 519 (Pa. Cmwlth. 2004).

[vii] 18 Pa.C.S. § 5503(a)(2).

[viii] Id. § 5503(a)(3).

 

Vasilios (“Bill”) J. Kalogredis is Chairman of Lamb McErlane’s Health Law Department. Bill has been practicing health care law for over 40 years, representing exclusively physicians, dentists, group practices, other health care professionals and health care-related entities.

Isabella K. Pimentel, a Summer Associate at Lamb McErlane, assisted in the preparation of this article. Isabella is a rising third-year law student at Thomas R. Kline School of Law, at Drexel University.

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