Denial of license for old felony overturned for failure to consider applicant’s current character

Credit: aehdeschaine, https://flic.kr/p/oRSH3B

The Commonwealth Court of Pennsylvania, in an August 11 ruling, reversed a decision by the state’s Board of Accountancy to deny a license to an applicant who had been convicted of stealing $60,000 nearly a decade earlier.

The board erred, the court held, by focusing solely on the applicant’s past crimes and failing to provide any evidence of consideration of the applicant’s current character.

In 2010, accountant William McKernan pleaded guilty to stealing nearly $60,000 from a Little League team for which he was the treasurer, as well as about $1,200 from a corporate client. He was sentenced to prison, then released in 2011 for good behavior. Following his conviction, McKernan entered into a consent agreement with Pennsylvania’s State Board of Accountancy which required him to surrender his license.

In 2018, McKernan sought permission from the board to re-apply for a license. At a hearing, a number of witnesses testified to McKernan’s rehabilitation and his recovery from alcoholism and McKernan expressed his remorse and stated his responsibility for his actions. The Bureau’s Prosecution Division did not object to McKernan’s reinstatement, although it recommended that conditions be placed on his license.

The board, unmoved, denied McKernan’s request, stating that his offenses represented inherent character flaws and that those crimes were sufficiently grave to warrant the denial of a license.

In addition, the board negatively cited McKernan’s own contrite statement that he, and not his alcohol problem, caused his behavior. The board downplayed that seeming admission of fault as an attempt by McKernan to improperly mitigate his actions. However, despite those statements, the board declined to evaluate McKernan’s current moral character or to provide specific bases for its denial in its decision.

McKernan appealed, arguing that the board had failed to set an objective standard for determining whether he was fit for licensure, had improperly focused solely on the conduct that led to his decade-old criminal conviction to the exclusion of evaluating his current character, and had violated his rights to due process.

The Commonwealth Court agreed. “The licensing board cannot use an individual’s criminal conviction as the sole basis to deny a reinstatement petition,” wrote Judge Mary Hannah Leavitt. The statutory requirement that a licensing board consider an applicant’s current character, notwithstanding past conduct, exists to avoid stigmatizing former offenders, the judge continued. McKernan had presented extensive evidence of his current moral character, but the board had declined to refute any of it.

Additionally, Judge Leavitt noted, despite the board’s dislike of McKernan’s contrite statement about his past alcohol abuse, “It demonstrates honesty and present character for McKernan to acknowledge that his criminal offenses were his responsibility. He did not use his alcohol abuse to excuse his conduct.”

The court remanded the case to the board with orders to reinstate McKernan with a probationary license.