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Expunged conviction may not be used to reject license applicant

An appellate court in Pennsylvania overturned a board decision rejecting an application for reinstatement by a licensee who had gone through a drug diversion program and had the conviction for which he was originally disciplined expunged.

(Kearney v. Bureau of Professional and Occupational Affairs)

In March 2010, Timothy Kearney, a licensed physician assistant, checked himself into a treatment center for drug addiction issues related to pain medications. He had been diverting fentanyl and Oxycontin, for which he pleaded guilty to a single felony count. In 2011, the board suspended Kearney’s license for ten years.

In December of that year, Kearney was accepted into a diversion program, in which he underwent counseling and monitoring and completed a six-month probationary criminal sentence, after which a court dismissed his criminal charges.

In 2014, Kearney petitioned the board to reinstate his license in light of his addiction treatment and the dismissal of the criminal charges against him. The board rejected this petition on the grounds that Pennsylvania’s Medical Practice Act mandated a ten-year suspension in response to his felony conviction.

It did not make an independent determination whether Kearney was capable of resuming practice in a competent manner. Kearney appealed the board’s decision, arguing that, because his conviction had been expunged, the board had acted improperly when it considered that conviction in denying his request for reinstatement, and the case went up to Commonwealth Court of Pennsylvania, which issued a decision October 16.

On appeal, Judge Patricia McCullough, writing for the court, noted that, under Pennsylvania law delineating court-ordered expungements, ‘the records shall not . . . be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose” (internal quotation marks omitted).

“When an individual enters pleas of guilt or nolo contendere in the face of a . . . charge, the charge is held in a state of abeyance, and if an individual complies with the terms and conditions of the imposed rehabilitative probations, the charge is dismissed, and the criminal record expunged-the end result being that the proverbial slate is completely and unconditionally wiped clean . . . The entire record of the criminal proceedings cannot be considered by a state occupational licensing board, let alone be deemed as a ‘conviction’ by that board, regardless of whether something in the record can be viewed as an admission of guilt.”

Here, by participating in the drug court program, Kearney had withdrawn his guilty plea, “thereby rendering it void as a matter of law,” the trial court dismissed the charges, and “the case was resolved without an adjudication of guilt.” It was, Judge McCullough wrote, as if the entire matter “ceased to exist.”

Additionally, under Pennsylvania’s Criminal History Record Information Act, criminal convictions which have been expunged or annulled are explicitly prohibited from being used in consideration for a license. Thus, whether or not Kearney’s original case resulted in a conviction, that conviction had been expunged and was not available to the board for consideration.

Writing that the “Board rested its decision exclusively on a criminal record that no longer exists and cannot be used to deny reinstatement” of Kearney’s license, Judge McCullough held that the board had erred and that its discipline would be reversed.