Thursday, March 25, 2010

employment - nurse - ARD - felony

Spence v. Bureau of Prof. and Occup. Affairs - Cmwlth. Court - March 22, 2010 - unpublished memorandum opinion

The court upheld the BPOA's imposition of a 3-year suspension and 2-year probationary period of a nurse who entered and completed an ARD program involving a 3d degree felony of theft by unlawful taking -- $10,000 - while she was treasurer of a PTO.

The penalty was based on 63 P.S. §224(a)(5) (emphasis added), predicated on a licensee who "has been convicted, or has pleaded guilty, or entered a plea of nolo contendere, or has been found guilty by a judge or jury, of a felony or a crime of moral turpitude, or has received probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, the United States or any other state, territory, possession or country." (emphasis added)

The court applied an abuse of discretion standard "defined as a misapplication of the law, a manifestly unreasonable exercise in judgment, or a final result that evidences partiality, prejudice, bias, or ill-will. Allegheny County v. Golf Resort, Inc., 974 A.2d 1242 (Pa. Cmwlth. 2009); Pastorius v. State Real Estate Commission, 466 A.2d 780 (Pa. Cmwlth. 1983). When reviewing the exercise of discretion by an administrative agency, this Court may not, in the absence of bad faith, fraud, capricious action or abuse of power, inquire into the wisdom of the agency's action or into the details or manner of executing agency action.

The bureau and court rejected the argument that the felony did not related to nursing. The "statute does not distinguish between felonies that relate to the practice of nursing and those that do not. Furthermore, the Board’s regulations recognize the importance of trustworthiness in the nursing profession.

It also rejected the argument that her successful completion of ARD should make a difference. Even where criminal charges are resolved in favor of a defendant, an agency may initiate administrative proceedings against the person concerning the same underlying misconduct. Spence v. Pennsylvania Game Commission, 850 A.2d 821 (Pa. Cmwlth. 2004).