One Rule to Catch Them All: Licensing Board's Use of Unprofessional Conduct
Posted Nov 18 2010 5:33pm
As a general rule, licensing Boards such as the Texas Medical Board, Texas Board of Nursing and Texas State Board of Pharmacy are prohibited from exceeding the powers granted to them by the Legislature. The Legislature passes enabling statutes that create the licensing Boards and circumscribe their jurisdiction. The Boards may then pass administrative rules expounding and filing in the blanks of areas which the Legislature has order them to regulate. These rules cannot conflict with the statute, however, and are, in fact, subordinate to it. Thus, if the Legislature did not give them the power to regulate a particular activity, the Boards generally cannot expand their jurisdiction to regulate that activity by adopting an administrative rule. Problems arise, however, when the statutes are imprecise or vague in limiting the Boards’ powers.
Given the multitude of laws instituted by our Legislators, imprecise and vague definitions are bound to crop up. Such is the case with the term “unprofessional conduct.” As an example, the Medical Practice Act allows the Texas Medical Board to discipline its licensees if they commit “unprofessional or dishonorable conduct that is likely to deceive or defraud the public, or injure the public.” Tex. Occ. Code 164.052(a)(5). Note that there need not be any actual harm done. While the statute goes on to give some guidance as to what conduct deceives or defrauds the public (Tex. Occ. Code 164.053) it gives us no definition of what constitutes unprofessional or dishonorable conduct that is likely to injure the public.
Similarly, the Texas Board of Nursing is allowed to discipline nurses for unprofessional or dishonorable conduct that, in the board’s opinion, is likely to deceive, defraud or injure a patient or the public. Tex. Occ. Code 301.452(b)(10). Likewise, the Texas State Board of Pharmacy can discipline its licensees for both unprofessional conduct and gross immorality. Tex. Occ. Code §§565.001(a)(2)-(3). Troublingly, the Legislature appears to have left it in the hands of the Pharmacy Board to determine the definition of unprofessional conduct and gross immorality.
How do the licensing Boards use this power? The Boards have frequently used this provision as a hook to discipline licensees over whom they would otherwise have no statutory power. For example, the Medical Board is explicitly allowed to discipline licensees for convicted misdemeanors if the misdemeanors can be related to their practice as a physician (Tex. Occ. Code § 53.021(a)(1)) or involve “moral turpitude” (Tex. Occ. Code § 164.051(a)(2)(B)). Moral turpitude is another vaguely defined term; it is generally implicated in crimes involving fraud or deceit but is otherwise difficult to characterize and apply. Regardless, by classifying other misdemeanors as “unprofessional conduct”, however, the boards can extend their powers beyond the limits set by the Legislature.
The Board of Nursing, which is subject to similar statutory restrictions, has labeled “unprofessional conduct” such misdemeanors as possession of an unlicensed firearm, criminal mischief, obstruction of a highway, and criminal trespass, none of which are a crime relating to the practice of nursing or classified as an offense of moral turpitude. I have also encountered cases where the Board was reluctant to license an individual or wished to impose discipline based on conduct which is not even criminal, such as a client’s former employment as a stripper or a person’s private conversations on an internet social networking site. Furthermore, I have seen multiple situations where a client is being pursued due to what is essentially an employment dispute, such as lying on an initial application, an area over which the Board involved likely has no jurisdiction.
In conclusion, licensing Boards frequently utilize this method as a means to expand their jurisdiction beyond their enabling statutes. “Unprofessional conduct” is used as a pretext to regulate licensees for activities that do not involve the licensed occupations at all. If you are facing an investigation or disciplinary matter before a state agency and feel the basis of their action has no relationship or bearing on your license or practice, you very well may be right and would be wise to contact an attorney familiar with the respective Board’s statutes and disciplinary process.