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Board may discipline licensees for actions underlying dismissed convictions

In a December 10 ruling, a California appellate court held that, although state law prohibits licensing boards from disciplining licensees based on convictions that have been dismissed under a conviction rehabilitation law, boards may still base discipline on the actions underlying those convictions, at least until a new law prohibiting such reliance takes effect in 2020.

(Moustafa v. Board of Registered Nursing).

Between 2006 and 2009, nurse Radwa Moustafa racked up a small collection of convictions for minor crimes, being convicted on two charges of petty theft after shoplifting from a Macy’s, one charge of vandalism for forcibly removing and destroying a boot placed on her car for unpaid parking tickets, and one charge of driving without a license.

All of the convictions were dismissed in 2013 under a section of California’s Penal Code which allows offenders to rehabilitate their criminal records.
Despite the dismissals, in 2015 the nursing board denied Moustafa’s application for a nursing license based on those convictions. Moustafa appealed, giving evidence of her rehabilitation and good character, and, after a hearing, the board issued her a license but placed it on immediate probation for three years.

Moustafa appealed that decision as well, and a trial court reversed the board, holding that California law prevents the board from relying on convictions dismissed in the way of Moustafa’s and adding that, in order to give practical effect to that law, the board was also prohibited from basing its decision on the conduct underlying the convictions.

The board appealed that ruling, and the case went up to the Court of Appeal, California First Appellate District. The board argued that the section of law that prohibits it from issuing discipline based on “a conviction that has been dismissed” applies only if an applicant has a single conviction, whereas Moustafa had four. In the alternative, the board also argued that the lower court had overstepped its bounds by preventing the board from relying on the actions underlying Moustafa’s convictions to issue its discipline. These arguments met with mixed success, but the board’s overall decision was affirmed by the court.

The court did not approve of the board’s argument regarding the application of the dismissal law to persons with multiple versus single convictions. “We believe, to the contrary,” wrote Justice James Humes, “that the plain and more natural reading of the provision is that the phrase ‘a conviction that has been dismissed’ applies to each dismissed conviction an applicant may have, regardless of whether the applicant has one individual dismissed conviction or a collection of such individual dismissed convictions. It makes sense for the phrase to be formulated in the singular, because every dismissal relates to a singular dismissed conviction.”

To support his argument, Justice Humes noted the potential consequences of extending the logic of the board’s reliance on the statute’s use of the singular tense. “Would the board seriously contend that it cannot deny a license because an applicant was convicted of several crimes instead of ‘a crime’ . . . or take disciplinary action against a licensee because the licensee is guilty of several offenses rather than ‘a felony’?

” . . . We think it is clear that in all of these instances, the Board has the authority to take action against an applicant or licensee who has engaged in a number of these acts, just as it has the ability to take action against such a person who has engaged in one of these acts.”

Unfortunately for Moustafa, although the board was prohibited from using her convictions to discipline her license, the court held that the board nevertheless had the authority to issue that discipline based on the actions underlying those convictions.

The lower court had ruled that giving the board the ability to discipline for underlying action where it was denied the power to discipline based on the convictions themselves would make the latter prohibition meaningless. But Justice Humes noted that, in order to base discipline on the underlying actions, the board would have to present evidence of those acts, and the court saw “no obvious inconsistency in precluding conduct underlying those convictions that a board can actually prove.”

Interestingly, the state legislature had actually moved to address the apparent inconsistency, having passed a bill denying licensing boards the right to base discipline on events underlying dismissed convictions. However, the bill does not take effect until 2020, and the court held that the board was not subject to the new law’s restriction in the meantime.

Turning to the substance of whether Moustafa’s crimes actually qualified as conduct punishable by the board, the court held that, although her two instances of theft were punishable, her act of vandalism was not. Licensees are subject to discipline for actions that are unprofessional and substantially related to the practice of nursing, explained Justice Humes, and, although the board had held that Moustafa’s thefts and vandalism substantially related to her practice, the board had seemingly just assumed that such actions also qualified as unprofessional.

While the court agreed that Moustafa’s thefts “reflected her present or potential unfitness to practice nursing,” it rejected any attempt to make thefts a categorical source of discipline. “We conclude that Moustafa’s shoplifting activity was, if only barely, substantially related to her fitness to practice nursing so as to justify a restricted license . . . We recognize that nurses hold positions of extreme trust and have access to the property of others, including property of vulnerable patients. ”

“Even though Moustafa shoplifted while still in college, did not take anything of significant value, and did not steal from a patient or entity she would encounter as a nurse, we cannot say as a matter of law that the conduct did not justify restricting a license.”

Regarding her act of vandalism, Justice Humes wrote that “In our view, removing and damaging a vehicle boot cannot reasonably be considered to constitute unprofessional conduct substantially related to nursing, and it was therefore not conduct that independently qualified as a basis for the license restriction.”

Oddly, the new law, Assembly Bill No. 2138, while preventing boards from relying on conduct underlying dismissed convictions to discipline a licensee, does not prevent the board from relying on otherwise identical conduct that did not result in a conviction that was then dismissed. Recognizing this “anomalous effect,” Justice Humes wrote that “we expect that when the Board considers appropriate sanctions based on applicants’ conduct, it will assess the circumstances of the conduct thoughtfully, reject categorical assumptions, and take to heart the Legislature’s clear intent in enacting Assembly Bill No. 2138 to reduce licensing and employment barriers for people who are rehabilitated.”