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Expungement of $89,000 theft conviction does not wipe slate clean for licensing

January/February 2012 The state board of education had the power to deny a teaching license to an applicant who was earlier convicted and disbarred from the legal profession for felony theft, despite the fact that his criminal conviction had been expunged, the Court of Appeals of Kansas ruled January 20

Photo by Matt Hilger

(Douglas S. Wright v. Kansas State Board of Education).

Although the judges seemed to sympathize with the license applicant—with one judge even writing a separate concurring opinion that scathingly criticized the board’s reasoning—the court nevertheless upheld the license denial.

The applicant at the center of the case, a former attorney named Douglas Wright, saw his trouble begin in 1998, when he stole $86,000 from the accounts of his great aunt and $3,000 from the Topeka Lawyers Club, where he had been treasurer.

Then, during an ensuing investigation by disciplinary authorities, Wright perjured himself by lying about his activities. In 2003, he pled guilty to felony theft, was sentenced to a year in prison, and had his attorney license revoked.

After Wright was released, he studied to become a teacher, and applied for a license in 2007. Then, in 2009, his criminal record was expunged. Nonetheless, the State Board of Education denied his application, saying Wright had not sufficiently proved his rehabilitation. He then appealed.

On appeal, Wright’s arguments were three-fold. He argued that the board erred by considering the actions that led to his conviction and disbarment because those actions were more than five years old and his criminal record had been expunged. He argued that the board’s decision to deny him was not supported by substantial evidence if the record was viewed as a whole. And he argued that the board’s decision was arbitrary and made for improper reasons.

Wright’s first argument was rejected quickly. The statute which he cited for the prospect that the board may not consider conduct more than five years old, wrote Judge Stephen Hill for the court, “clearly states the Board may issue the teaching license, implying the discretion to deny an application, and the rehabilitation must be for at least 5 years, implying the Board could require a longer term of rehabilitation before issuing a license.”

As for the expungement of Wright’s conviction, the board did not need to rely on that conviction to take note of Wright’s misconduct, as the record of his disbarment, which cannot be expunged, was available and detailed the misconduct.

Wright’s claim that the decision was not based on substantial competent evidence was also rejected. Examining the record, Hill noted the seriousness and repeated nature of Wright’s crimes, as well as the board’s reasonable perception that, by making statements which appeared to minimize the seriousness of his conduct and which indicated a lack of remorse, “Wright was missing the point.” Given these factors, Hill concluded, the board’s decision was reasonably decided on substantial evidence.

For his third argument—that the board’s decision was based on improper considerations and, therefore, arbitrary—Wright relied on statements made by the individual board members during the license denial.

Members of the board, discussing the case at a board meeting, made several statements indicating that, although they believed Wright to be rehabilitated, they were inclined to deny him a license for, among other things, the concerns some parents might have with Wright as a teacher and because he had been disbarred. One board member was on the record as saying that “I don’t feel that we can license someone that’s been denied from another profession.”

However, while Judge Hill admitted that the statements by the board members indicated they were relying on factors not contained in the relevant licensing regulations, he also wrote that “Frankly, all of these individual comments appear to be the musings of Board members grappling with an important decision.”

“In its written decision,” he wrote, “the Board applied the law and supported its decision by substantial competent evidence.”

In a concurring opinion, Judge G. Gordon Atcheson gave a scathing review of the board’s decision.

“In many respects,” he wrote, “the Board supports its determinations with factual distortions, specious legal interpretation, and lofty sounding rhetoric signifying little of substance.” Atcheson believed that the board acted, in part, because it believed that “granting a license to Wright—as a convicted felon and a disbarred lawyer, would demean the teaching profession,” an assertion supported by the initial decision of the board’s Professional Practice Commission on Wright’s application, which stated that teaching is not “a safety net for person who have been barred from other professions.”

Atcheson also criticized the board’s lack of advice to Wright as to why his efforts at rehabilitation were not satisfactory. “The Board,” he wrote, “has granted itself a roving commission— authority exercised without defined limitations or standards.” By failing to share its criteria for determining Wright’s success, Atcheson said, “the Board has slyly created a game without discernible rules, and such a game can never be won.”