What Happens When A WA Agency Issues a Statement of Charges for Unprofessional Conduct?

Is it unprofessional for a real estate agent to have been convicted of misdemeanor shoplifting? The Department of Licensing routinely revokes real estate broker’s licenses for such cases. The Department of Health and Department of Financial Institutions also routinely charge professionals with unprofessional conduct for a wide range of conduct not related to their profession.Courts have consistently demanded that the charge of unprofessional conduct be limited to untoward conduct in the practice of their profession. For example, in Hickethier v. Dep’t of Licensing, Ms. Hickethier was romantically involved with a contractor who she had perform work for a client without informing that client of their relationship or that the work had not been done properly. 159 Wn. App. 203, 208 (2011). That court held that unprofessional conduct included knowingly concealing information from a client. Id. at 213. In McDonnell v. Commission on Med. Discipline, 301 Md. 426, 483 A.2d 76 (1984) a physician allegedly made intimidating phone calls to two witnesses in a malpractice case against him. Applying a statute defining unprofessional conduct as “[i]mmoral conduct of a physician in his practice as a physician,” the court held the phones calls were not unprofessional conduct because they were not related to his actual practice of medicine. Again, in Brown v. Dep’t of Health, the court found unprofessional conduct where respondent practiced chiropractic medicine without a license, represented to his clients that he was a licensed chiropractor, and failed to exercise reasonable care when performing a chiropractic manipulation. 110 Wn. App. 778,784, 42 P.3d 976 (2002). That, and many other cases, demand that the practice of the profession be involved. See e.g., Seymour v. Washington State Dep’t of Health, 152 Wn. App. 156 (2009) (unprofessional conduct composed of fraudulent billing practices for treatment and substandard care); Heinmiller v. Dep’t of Health, 127 Wn.2d 595 (1995) (unprofessional conduct composed of a practitioner having sexual relationship with her client).The Department of Licensing considers a shoplifting conviction to constitute unprofessional conduct because it raises concerns about a real estate broker’s propensity to abuse his or her professional responsibilities and tends to harm the standing of the profession in the eyes of the public, both of which it asserts lead to “reasonable apprehension about public welfare.” Final Order at 2. The DOL sites Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 736 (1991) in support of this conclusion. Haley is not dispositive because the facts and conclusions are distinguishable from many cases. Haley involved a physician who “used his professional status and position to achieve the sexual exploitation of a minor.” Id. at 735. “M,” the alleged victim, was young enough that the Doctor’s involvement constituted child abuse; he had discontinued treatment a short while before the sexual relationship began; his communication with the child was by law for immoral purposes, and; he provided the child alcohol. Doctor Haley also engaged in sexual relations with “M” in his examining room. The nexus between Dr. Haley’s practice and the criminal conduct was direct and grossly offensive. Further, Dr. Haley practiced medicine, which involves a special issue of public trust: it is of “paramount importance of the. . . role of medical professionals in preserving [the] health and well-being [of citizens].” Id. at 725. The court did take a “broad view” in finding unprofessional conduct, as the Director asserts, but only in terms of finding that behavior which was not “directly connected with. . . technical competence to practice” could constitute unprofessional conduct. Id. at 735. However, Haley does not stand for the proposition that conduct entirely unrelated to the practice of a profession or operation of a business be held to constitute unprofessional conduct.