Knelly v. Pa. Dept. of Health – Cmwlth. Court (2-1) – 12-13-23
https://www.pacourts.us/assets/opinions/Commonwealth/out/1088CD22_12-13-23.pdf?cb=1
Held: It was an abuse of discretion for the Dept. of Health to revoke Knelly’s EMT certification rather than impose a lesser penalty, even though Knelly (a) had entered plea of nolo contendere to second degree felony strangulation involving his minor son, and (b) he failed to report the conviction to the DOH, as required by statute. The court vacated the revocation and remanded the case for further consideration.
Scope and standard of review
Absent an accusation of bad faith or fraud, our review of a licensing board’s disciplinary sanction is limited to determining “whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions.” Goldberger v. State Board of Accountancy, 833 A.2d 815, 817 n.1 (Pa. Cmwlth. 2003) (quoting Slawek v. State Board of Medical Education and Licensure, 586 A.2d 362, 365 (Pa. 1991)). Further, a professional licensing board exercises “considerable discretion in policing its licensees.” Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d 514, 519 (Pa. Cmwlth. 2009). The weight to be given to evidence of mitigating circumstances is a matter of agency discretion. Burnworth v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991). Nevertheless, this Court must “correct abuses of discretion in manner or degree of penalties imposed.” Ake, 974 A.2d at 519 (internal quotation omitted); see also Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d 1355 (Pa. Cmwlth. 1990).
Constitutional right to engage in lawful employment
Legal Principles Governing Licensure Revocation
The Pennsylvania Supreme Court has long stated:
[E]very citizen has an inalienable right to engage in lawful employment. While a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably related to the state interest sought to be protected.
Secretary of Revenue v. John’s Vending Corporation, 309 A.2d 358, 361 (Pa. 1973) (citations omitted) (emphasis added). See also King v. Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, 195 A.3d 315, 329 (Pa. Cmwlth. 2018) (“our Supreme Court has consistently interpreted [a]rticle I, [s]ection 1 of the Pennsylvania Constitution[, Pa. Const. art. I, § 1,] as guaranteeing an individual’s right to engage in any of the common occupations of life”) (emphasis added).
Effect of plea of nolo contendere in this particular case –
The Court agreed that the imposition of the most severe sanction was without adequate consideration of mitigating evidence and the fact a nolo contendere plea does not itself sufficiently connect the conviction to his present ability to perform his duties as an EMT. The Court also found that “the Department completely ignored several mitigating factors that are undisputed in the record—especially the parents’ “bitter custody battle” and “[m]ost tellingly, that Knelly currently has at least partial custody of his son pursuant to an informal agreement with his son’s mother. There is no meaningful discussion or weighing of these facts anywhere in the Department’s Final Determination, which absence we find to be manifestly unreasonable. We therefore conclude that the Department’s revocation of Knelly’s EMT certification based on his nolo contendere plea was a manifest abuse of discretion and unreasonable in these circumstances.”
Dissenting opinion of Judge Ceisler
The majority “improperly reweighed the evidence and made its own credibility determinations” contrary to those made by the hearing officer and Department – something that “this Court is not permitted to do.”
Since we will never know if Knelly actually committed the underlying felony charge to which he pled, I believe it is prudent to err on the side of caution due to the severity of the allegations. We must also give deference to the hearing officer, who actually observed the witnesses’ testimony and made credibility determinations based on those observations.
It would not be in the public’s best interest to allow an emergency medical technician (EMT) to remain certified and continue to dispense lifesaving care in extremely stressful situations after he has been convicted of physically harming his own minor child.
In this situation, I am uncomfortable reweighing the evidence and substituting our credibility determinations for those of the hearing officer. Because I do not believe the Department abused its discretion in revoking Knelly’s EMT certification under the circumstances, I would affirm the Department’s Final Determination.
