NABP Legal Briefs: Arrested Development

January 23, 2012 2:24 pm

By Dale J. Atkinson, JD

The proliferation of technological advancements enables boards of pharmacy to provide the public with virtually immediate access to information about applicants and licensees, including persons subject to administrative discipline. This ease of availability of public information enhances opportunity for an informed public and allows consumers not only to verify a professional’s credentials, but also to assess such practitioner’s administrative background.

On the other hand, licensees may not appreciate the public nature of certain adverse information and, based upon the ease of public access, may seek to have such information removed from public availability. Requests to delete administrative discipline from public access may be justified based upon the completion of the sanctions set forth in the order, the mere passage of time, as well as other legal or equitable grounds. One such mechanism is to have a record “expunged.” Expunction effectively destroys the records and treats the impacted person, for purposes of the official records, as if the event (generally a crime) had never occurred. The authority and criteria for having one’s records expunged is addressed in state law and most often applies to criminal convictions.

Based upon the public’s access to administrative information, boards of pharmacy are likely to experience an increase in requests to expunge adverse administrative records. Boards are encouraged to proceed cautiously and to check with counsel regarding the authority, if any, to expunge an administrative record.

The admissibility of information that led to criminal action of a now expunged record may, however, remain relevant. As mentioned, most likely the expunged record addresses a criminal matter. But, to what degree is information related to the events of an expunged criminal conviction relevant and admissible in an administrative proceeding? Or perhaps more difficult, what about an expunged record related to a criminal arrest that did not result in a conviction? Consider the following.

An officer of the Texas Alcoholic Beverage Commission was conducting an inspection of a bar. While on the premises he was approached by a patron who reported a male alone near the dance floor was engaged in lewd acts. The inspector observed the lewd acts and immediately removed the patron from the establishment. As a result of the incident, the patron was arrested and charged with indecent exposure. Sometime later, the charges were dismissed and eventually his arrest records were expunged. He was never convicted of a crime.

The patron (Licensee) was a teacher who held an active Texas Educator Certification at the time of the incident and was employed by a public school district. Eventually, the State Board for Educator Certification (Board) filed a petition against the Licensee with the State Office of Administrative Hearings. The petition alleged that the actions of the Licensee at the bar indicated that he was a person “unworthy to instruct or supervise the youth of the State of Texas.” The Board sought to have his educator certification permanently revoked.

Prior to the administrative hearing, the Licensee filed a motion arguing that because his arrest record had been expunged the Board could not produce any evidence to support its claim. An expunction order under the Code of Criminal Procedure prohibits the use of any records or files concerning the Licensee’s arrest. The Board responded that it intended to use the testimony of the inspector who was an eyewitness to the events and it would not use nor rely upon the arrest records.

At the hearing, the administrative law judge allowed the inspector to testify but did not admit such testimony into the record until the conclusion of the proceedings. In overruling the Licensee’s objections to the testimony of the inspector and allowing such to be made of record, the administrative law judge noted that the inspector did not refresh his memory from the arrest record or any other record subject to the expunction order. The Licensee testified and admitted he was escorted out of the nightclub but denied engaging in lewd acts. Two additional character witnesses testified on behalf of the Licensee.

The administrative law judge found that the Licensee engaged in the lewd acts at the nightclub and concluded that such conduct was an act of moral turpitude and that an act of moral turpitude can preclude a finding of good moral character. However, the administrative law judge concluded that the Board did not have the basis for discipline because the Board’s definition of “unworthy to instruct or supervise the youth of the state of Texas” basically required the educator to have been convicted of one of the enumerated crimes set forth in that section of the cited law.

The Board adopted the findings of the administrative law judge with the exception of the two conclusions of law related to the interpretation of what constitutes unworthy to instruct or supervise. The Board found the administrative law judge’s interpretation to be inconsistent with applicable law, agency rules, and prior administrative decisions. The Board concluded that the conduct of the Licensee established that he was unworthy to instruct or supervise the youth of the state of Texas and revoked his license. The Licensee appealed.

On appeal, the Licensee argued that the Board exceeded its statutory authority by rejecting the administrative law judge conclusions; that the testimony of the inspector was inadmissible as it was subject to the expunction order; and that the Board erred by denying his request to present additional evidence to the Board.

After summarizing the standard of review, the court turned its attention to the arguments of the Licensee. First, addressing the authority of the Board to reject the administrative law judge conclusion regarding her interpretation of the phrase “unworthy to instruct,” the court held that the Administrative Procedure Act (APA) specifically allows for the Board to change a finding of fact or conclusion of law. It held that the Board complied with the APA requirement of explaining the reasons and legal basis for its rejection of the administrative law judge conclusions. The court also reiterated its role under the standard of review as assessing whether the Board’s interpretation was reasonable and did not contradict the plain language of the statute or rule.

The court held that requiring a criminal conviction of one of the two cited criminal sections in order to find one unworthy to instruct was inconsistent with the public protection intent of the statute. In deferring to the Board’s authority, the court held that the Board’s interpretation was reasonable, consistent with the statute, and was delineated in its order. Thus, the Board acted within its statutory authority.

Addressing the admission of the eyewitness testimony, the Licensee argued that the expunction statute “precludes a person who acquires knowledge of an arrest while a state employee and who knows of an order expunging the records and files relating to that arrest from disseminating or using the records or files.” In rejecting this argument and upholding the allowance of the inspector’s testimony, the court held that such testimony relied upon personal observation, not on an expunged record or file. Indeed, the inspector testified to the fact that his recollection of the events of that evening were based upon his direct knowledge and that he did not refresh his memory using the expunged records or files. In interpreting the statute, the court noted “the legislature’s intent in enacting the expunction statute was not to eradicate all evidence of the conduct underlying the expunged arrest.” Thus, the allowance of the inspector’s testimony was affirmed and this argument of the Licensee was rejected.

Finally, the court addressed the Licensee’s argument that the Board erred in denying his request to supplement the record with additional evidence not presented to the administrative law judge. The Licensee had sought to have an additional order entered by the expunging court made of record in the administrative proceedings. This additional court order called for the Texas Education Agency to return to the court all files related to the Licensee and was based upon allegations of noncompliance by such agency. The court noted that to allow on appeal the submission of additional evidence outside the administrative record, the requesting party must show the evidence is material and that there were good reasons for its failure to be presented in the proceedings before the administrative law judge. In this case, the court held that the Licensee failed to argue that the agency was not complying with the expunction order but, instead, merely argued that the admission of the testimony of the inspector was improper. Accordingly, this argument by the Licensee was rejected.

Rejecting all arguments of the Licensee, the court affirmed the findings of the Board and the revocation of the license. Due to the implication of criminal laws related to pharmacists accused of wrongdoing and the potential for criminal arrests, boards of pharmacy may be confronted with the admissibility of information related to an expunged criminal record. This can be a complicated legal arena and advice from counsel is essential.

Gomez v. Texas Education Agency, 2011 Tex. App. LEXIS 9277 (App. Ct. TX 2011).