Tuesday, May 04, 2010

nursing - license - denial - criminal convictions

Bethea-Tumani v. State Board of Nursing - Cmwlth Court - April 2010


In this appeal, Glecina Bethea-Tumani1 (Applicant) petitions for review of a final adjudication and order of the State Board of Nursing (Board), denying her application for a license as a registered nurse by examination under the Professional Nursing Law (Law). In April 1994, Applicant pled guilty to aggravated assault, a felony. In July 2008, she pled guilty to insurance fraud and conspiracy, two misdemeanors. She applied to the Board for a license on or about September 8, 2008. In its final adjudication and order, the Board denied Applicant’s license application based on these convictions. We affirm.

adequate findings -- While we agree with Applicant that the Board could have issued an opinion with more detailed factual findings regarding her asserted remorsefulness and personal accomplishments, we cannot conclude that the Board’s findings and conclusions are so lacking as to not meet the minimal requirements for an adjudication under Section 507 of the Administrative Agency Law. A review of the adjudication reveals that the Board made very specific findings of fact regarding the convictions and the potentially mitigating circumstances surrounding the convictions, as well as findings regarding Applicant’s professional achievements and work history. A review of the adjudication as a whole reveals that the Board merely gave more weight to the convictions than to the mitigating circumstances and Applicant’s statements of remorse and reform when reaching its determination. Under these circumstances, we must conclude that the adjudication is sufficient to allow effective appellate review under Section 507 of the Administrative Agency Law.

remotness of conviction - Applicant further contends that the Board erred in considering her conviction that occurred fourteen years earlier. Under these circumstances, we reject Applicant’s argument that the Board was per se prohibited from considering Applicant’s earlier conviction. Given the circumstances of this case, in particular the very recent conviction, we cannot conclude that the Board erred in considering the earlier conviction. Moreover, we note that even if the Board had erred in considering the earlier conviction, sufficient evidence exists to support the Board’s denial based solely on the recent insurance fraud and conspiracy conviction.

mitigating evidence - A board may give greater weight to the seriousness of a respondent’s criminal convictions than to mitigating evidence. Burnworth v. State Bd. of Vehicle Mfrs., Dealers and Salespersons, 589 A.2d 294, 297 (Pa. Cmwlth. 1991). Absent bad faith, fraud, capricious action or flagrant abuse of discretion, a reviewing court will not inquire into the wisdom of an administrative agency’s =discretionary action or into the details or manner of executing that action.

credibility determination based on written transcript is permitted - This Court has held that administrative adjudicators may determine credibility from the reading of a transcript.” Pellizzeri, 856 A.2d at 301. Even Daniels, which we do not concede applies, does not require that credibility determinations be made based on “live” testimony. While credibility determinations based on a witness’ demeanor may have been beneficial in this case, the Board did not err when it simply reviewed the record of the proceedings provided to it.