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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Division of Corporations, Business and Professional Licensing, Alaska Board of Nursing v. Platt (10/26/2007) sp-6182

State, Division of Corporations, Business and Professional Licensing, Alaska Board of Nursing v. Platt (10/26/2007) sp-6182, 169 P3d 595

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA, DIVISION OF )
CORPORATIONS, BUSINESS AND )
PROFESSIONAL LICENSING, )
ALASKA BOARD OF NURSING, )
) Supreme Court No. S- 12173
Appellant, )
) Superior Court No.
v. ) 3KN-04-00663 CI
)
JOY PLATT, ) O P I N I O N
)
Appellee. ) No. 6182 - October 26, 2007
)
          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Charles T. Huguelet, Judge.

          Appearances:   David  L.  Brower,   Assistant
          Attorney   General,  and  David  W.  M rquez,
          Attorney   General,  Juneau,  for  Appellant.
          Mark  D.  Osterman,  Mark  D.  Osterman   Law
          Office, P.C., Kenai, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.
          BRYNER,  Justice, concurring in part and dissenting  in
part.

I.   INTRODUCTION
          I.    The  Alaska  Board  of Nursing  denied  appellees
application to be certified as a nurse aide by examination  based
on  the  fact  that she had previously been convicted  of  felony
forgery.   The  superior  court  reversed  the  boards  decision,
holding  that the board could not rely on the conviction  because
it  had  been set aside.  Because we conclude that the board  may
properly  consider a conviction that has been set aside and  that
substantial evidence supported the boards decision, we affirm the
boards decision to deny the application.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Joy  Platt  applied  to  the Division  of  Occupational
Licensing to become a certified nurse aide1 by examination on May
10,  2002.   The application asked whether she had been convicted
of  a  criminal  offense  and  stated  that  convictions  include
suspended imposition of sentence.  Platt indicated that  she  had
been  convicted,  but  did not provide any  further  explanation.
Platts  application was forwarded to the Alaska Board of  Nursing
for  consideration.  The board sought and received  documentation
of Platts criminal convictions.  Because of the importance of the
facts  surrounding her convictions to the legal issues raised  in
this appeal, we set out the facts here in some detail.
          In  1991  Joy  Platt  moved from Oregon  to  the  Kenai
Peninsula  to  live with a family friend, Ms. V.  W.,  while  she
completed  high  school.  Platt attended a  private  high  school
affiliated  with  the  church  where  Ms.  W.  was  the   pastor,
graduating  in  1996.   After graduation, Platt  married  Michael
Platt; the couple experienced severe financial distress when they
both  lost their jobs.  From mid-September 1997 through  November
1997,  Platt  forged fourteen checks belonging to Ms.  W.  for  a
total  of  $6,641.90.  Platt was indicted on fourteen  counts  of
Forgery in the Second Degree and one count of Theft in the Second
Degree.  From late January 1998 to mid-February 1998, Platt  also
forged ten more checks belonging to another couple, acquaintances
of  Platt  who  attended her church, for a  total  of  $3,152.81.
Platt had lived with this couple for a period of time in 1995.
          In  June  1998  Platt was convicted after  pleading  no
contest  to  two counts of Forgery in the Second Degree  and  one
count  of Theft in the Second Degree, Class C felonies.  She  was
given  a suspended imposition of sentence (SIS) on the conditions
that  she serve six months in jail and pay restitution,  and  she
was placed on probation for five years.
          In  December  1999,  while still on  felony  probation,
Platt  was  convicted of Theft in the Third  Degree,  a  Class  A
misdemeanor, for shoplifting child care products from Fred Meyer.
A  petition to revoke Platts felony probation was filed, but  the
judge  did  not  revoke  her  SIS.  Instead,  her  probation  was
continued  and  she was sentenced to ninety days  in  jail,  with
eighty days suspended, for the probation violation.2
          The  Board of Nursing considered Platts application  in
June  2002.   It denied the application on the grounds  that  her
1998  forgery  conviction  was   substantially  related  to   the
qualifications, functions, or duties of a certified nurse  aide.3
In  response  to  the  boards  decision,  Platt  wrote  a  letter
appealing the decision. In Platts July 2002 letter, she indicated
that she expected to have her convictions set aside by late 2003.
     B.   Proceedings
          A.   An administrative hearing was held in March 2003 to review
the  boards  decision.   After hearing  testimony  from  numerous
          witnesses, the hearing officer issued a proposed decision
containing  factual findings, conclusions of law,  and  analysis.
The  hearing  officer  found that Platt  had  been  convicted  of
forgery in June 1998 but had been given a suspended imposition of
sentence, which the hearing officer assumed would be set aside by
the   time  the  board  issued  its  final  decision.4   In   his
conclusions  of law, the hearing officer held that there  was  no
legal  barrier  to  consideration of a  set-aside  conviction  in
making  an employment decision and that a person against  whom  a
judgment  of  conviction has been entered  and  subsequently  set
aside  pursuant  to  AS 12.55.085(e) is a  person  who  has  been
convicted  within  the meaning of AS 08.68.270(2).   The  hearing
officer  nonetheless  recommended that  the  board  exercise  its
discretion in favor of granting Platt a license because she would
be  a competent, caring, committed nurse aide and was unlikely to
engage in criminal conduct in the long term.
          The  board  declined  to  adopt  the  hearing  officers
decision and requested that the parties submit additional written
briefing  before  it issued its own decision.  After  considering
the  supplemental briefing and the record from the  hearing,  the
board   adopted  the  hearing  officers  findings  of  fact   and
conclusions  of law.  The board declined, however, to  adopt  the
hearing officers analysis.  In its own analysis the board  placed
particular  weight  on  [Platts] serious  and  repeated  criminal
conduct  and the close relationship between the victims  and  the
applicant   and  placed  relatively  less  weight  on   character
references  and  on  the use of a [set aside]  disposition.   The
board denied Platts application and notified her of her right  to
appeal to the superior court.
          Platt appealed.  Relying on Doe v. State, Department of
Public  Safety,5  the superior court held that a conviction  that
had  been  set aside did not constitute a prior felony conviction
under  AS  08.68.270.  The court concluded  that  the  board  was
attempting  to  treat Platt as if she remained convicted  despite
the  fact that her conviction had been set aside.  The court held
that this was improper and reversed the boards decision.
          The board appeals.
III. STANDARD OF REVIEW
          I.   When we review the superior courts resolution of an
administrative  appeal,  we  review  the  agencys   determination
directly,  without  deferring to the superior  courts  decision.6
Whether the board has the authority to consider a conviction that
has  been  set aside is a question of law that does not implicate
the  boards  expertise;  accordingly,  we  review  it  using  the
substitution of judgment test.7  Because the boards expertise  is
implicated in the ultimate licensing decision, however, we review
that decision using the reasonable basis standard, under which we
will affirm the decision if it is supported by the facts and  has
a reasonable basis in law.8
IV.  DISCUSSION
          This  appeal  asks  whether the board  may  consider  a
conviction  that  has  been set aside  when  making  a  licensing
decision  under AS 08.68.334 and whether the boards decision  was
supported by the evidence in this case.  We address each question
          in turn.
     A.   The Board Properly Considered Platts Set Aside Conviction.
          A.    The legislature has authorized the board to  deny
certification to any individual who has been convicted of a crime
substantially related to the qualifications, functions, or duties
of  a  certified  nurse aide.9  Exercising  its  power  to  adopt
regulations necessary to protect the health, safety, and  welfare
of  clients served by nurse aides,10 the board classified forgery
and  theft  as  such  crimes.11  The central issue  presented  is
whether  an  individual  whose  conviction  has  been  set  aside
pursuant to AS 12.55.08512 remains someone who has been convicted
of   a   crime   substantially  related  to  the  qualifications,
functions,  or  duties  of  a  certified  nurse  aide  under   AS
08.68.334(2).  For the reasons explained below, we answer in  the
affirmative.
          Alaska Statute 12.55.085 authorizes the superior  court
to  suspend the imposition of a sentence and thereafter set aside
a   conviction   if  the  defendant  successfully   completes   a
probationary  period.13  Platts conviction for  forgery  was  set
aside  in  November 2003.14  The board argues that  the  fact  of
conviction  remains part of Platts criminal history  even  though
it  was  set aside, and therefore the fact of conviction  can  be
considered by the board.  Platt argues that the use of  the  term
conviction in AS 08.68.334 was not intended to include set  aside
convictions.

          In  Alaska  a conviction that has been set aside  loses
much of its legal importance in future legal proceedings.  A  set
aside  conviction does not qualify as a conviction in  situations
in which a sentence is increased or a crime is defined by a prior
conviction.15  It cannot trigger a presumptive sentence16 and can
be  used  as  an  affirmative defense  to  some  repeat  offender
statutes.17  In other words, the act of setting a conviction aside
creates   a  settled  expectation  that  the  state  [will]   not
subsequently  use  the conviction . . . as a basis  for  imposing
brand-new affirmative burdens on [the defendant].18
          Although   setting  aside  a  conviction   limits   the
consequences  of the conviction itself, it does  not  change  the
fact that an individual was previously found guilty of committing
a  crime.19  We explained in  Spenard Action Committee v. Lot  3,
Block  1, Evergreen Subdivision20 that where a conviction is  set
aside it does not mean that the crime, and the events surrounding
the crime, never occurred.21  Setting aside a conviction does not
expunge  the  conviction from the individuals criminal  record,22
which  means that [b]oth the conviction and the judgment  setting
it  aside  consequently  remain in the  public  record.23   Thus,
although  the set aside indicates that the defendant has  made  a
substantial  showing of rehabilitation,24 it does not  erase  the
fact of conviction.25
          As  we  have  noted  in previous  cases,  the  fact  of
conviction may lead to certain lingering consequences that follow
naturally  from the original conviction and are not  inconsistent
with the findings [of rehabilitation] that justify a set-aside or
with  the  set-aside  order itself.26  Where,  for  example,  the
          superior court must decide among a range of sentences, it is
permitted  to consider the fact that an individual has previously
been  convicted  when determining what sentence is appropriate.27
Similarly,  because  the fact of conviction remains  part  of  an
individuals  criminal  record after a conviction  is  set  aside,
[m]embers  of  the public, such as potential employers  inquiring
into a job applicants criminal record, can learn of the existence
of a conviction that has been set aside.28
          Thus, although Platts forgery and theft convictions had
been  set  aside, our case law does not require  that  the  board
treat  her  as  though  she had never been  convicted.   Such  an
approach  would force the board to ignore the fact that  she  was
convicted of committing serious crimes.  That approach  would  be
inconsistent with the boards duty to protect the health,  safety,
and  welfare of clients served by nurse aides29 because it  would
prevent  the  board  from  undertaking a  thorough  and  informed
evaluation of each applicant.  We conclude that despite the  fact
that  Platts forgery and theft convictions30  had been set aside,
she  remained  a  person  who has been convicted  of  a  criminal
offense  within  the  meaning  of AS  08.68.334(2).   The  boards
consideration  of  the  fact  that  Platt  had  previously   been
convicted of a serious crime was therefore not in error.
          We  are  cognizant  of the fact that criminal  records,
even those containing convictions that have been set aside, often
have pernicious effects.31  We observed in Journey v. State that a
person with a criminal record is often burdened by social stigma,
subjected  to  additional  investigation,  prejudiced  in  future
criminal  proceedings, and discriminated against  by  prospective
employers.32  These consequences may be harsh where, as appears to
be  the case here, the individual has demonstrated an ability  to
turn  her life around after being convicted.  But they appear  to
be  within  the contemplation of the legislature that enacted  AS
08.68.334(2).  For the reasons set forth above, her objection  to
the  boards consideration of the fact that she had been convicted
is unavailing.
     B.   Substantial Evidence Supports the Boards Decision To Deny
          Platts Application.
          
          After   reviewing  the  hearing  officers   recommended
decision, the board adopted the hearing officers findings of fact
and conclusions of law but rejected his analysis and his proposed
decision.   In its own analysis, the board chose to  give  Platts
conviction for forgery great weight based on the fact that  Platt
had a close relationship with her victims.  Writing on behalf  of
the  board,  Mary  H. Weymiller, L.P.N., the chairperson  of  the
Alaska  Board  of  Nursing,  indicated  that  the  board  in  its
discretion  rejected the hearing officers recommended  course  of
action  because the board placed  particular weight  on  [Platts]
serious  and repeated criminal conduct and the close relationship
between  the  victims and [Platt].  Conversely,  the  board  gave
relatively little weight to Platts character references  and  the
apparent  fact  that Platt had made substantial progress  towards
her rehabilitation since her convictions.
          Because  the  boards  expertise is  implicated  in  its
          decision to deny Platts application, our review of the decision
is  limited to determining whether there is substantial  evidence
to support it.  Substantial evidence is such relevant evidence as
a   reasonable  mind  might  accept  as  adequate  to  support  a
conclusion.  33  If  substantial  evidence  supports  the  boards
decision,  we  must uphold it.  Even though there  are  competing
facts  that  might support a different conclusion  than  the  one
arrived  at  by the board, we will not reweigh the  evidence  nor
choose between competing factual inferences.34
          Alaska  Statute  44.62.50035 authorizes  the  board  to
decline  to  adopt a hearing officers proposed  decision  and  to
instead make its own decision based on the record.  The board did
exactly  this.   After reviewing the record  and  the  additional
briefing submitted by the parties, the board adopted the  hearing
officers findings of fact and conclusions of law, but substituted
its own analysis.  Our review of the record shows that the boards
analysis is supported by substantial evidence.
          The  record establishes that Platt was convicted of one
count  of  forgery and one count of theft in 1998.   Her  victims
were  older  persons who had befriended Platt, brought  her  into
their homes, and were vulnerable to her actions.  She was given a
suspended  imposition of sentence, requiring  her  to  serve  six
months  in  jail  and be on probation for five years.   While  on
probation,  Platt  was convicted of misdemeanor  thefts  and  was
required to serve additional time in jail, and her probation  was
extended.   The board relied heavily on these facts  particularly
that Platt repeatedly preyed on older, vulnerable persons who had
trusted her  to deny Platts application.
          The position for which Platt sought certification would
have put her into frequent contact with persons who, by reason of
their  medical condition, left them extremely vulnerable to their
caregivers.   As  the hearing officer noted, many patients  under
the  care  of certified nurse aides are vulnerable and dependent.
The Board of Nursing, attaching more significance to the specific
facts  underlying  Platts  convictions  than  her  rehabilitative
efforts  following her convictions, placed particular  weight  on
[Platts]  serious  and repeated criminal conduct  and  the  close
relationship   between   the  victims  and   [Platt].    Although
reasonable minds may disagree with the correctness of the  boards
reliance   on  Platts  criminal  history  in  light  of  evidence
suggesting  that  Platt had turned her life  around,  the  boards
decision  clearly  is supported by substantial  evidence  and  is
therefore affirmed.36


V.   CONCLUSION
          The   Alaska  Board  of  Nursings  denial   of   Platts
application   to  be certified as a nurse aide by examination  is
AFFIRMED.  The superior courts decision is REVERSED.
BRYNER, Justice, concurring in part and dissenting in part.
          I  agree with the courts ruling that the board properly
considered  Platts set-aside conviction.  I also agree  that  the
record is legally sufficient to support the boards decision  that
is,  when  viewed  in the light most favorable to  upholding  the
boards  decision,  there is substantial  evidence  to  support  a
reasonable conclusion that Platt should not be licensed.   But  I
disagree  with  the courts decision to affirm the boards  ruling.
In  my  view,  the  boards conclusory rejection  of  the  hearing
officers  analysis and its cryptic reference to several selective
factors  it  considered instead provide an inadequate  basis  for
meaningful   appellate  review.1   I  would   thus   remand   for
reconsideration and an adequately explained decision.

_______________________________
     1      Nurse  aides  [p]rovide  basic  patient  care   under
direction  of  nursing staff. [They] [p]erform  duties,  such  as
feed,  bathe,  dress, groom, or move patients, or change  linens.
Bureau   of  Labor  Statistics,  U.S.  Dept  of  Labor,  Standard
Occupational   Classification   31-1012  (2001),   available   at
http://www.bls.gov/soc/soc_k1b2.htm.

     2    Platts probation officer, who supplied this information
to  the board, also sent a letter informing the board that  Platt
had  made  noted  progress during probation  and  supporting  her
application.

     3      AS   08.68.334  applies  to  certification  of  nurse
assistants:  The board may deny a certification to, or  impose  a
disciplinary sanction authorized under AS 08.01.075   against,  a
person  who . . . (2) has been convicted of a crime substantially
related  to  the  qualifications,  functions,  or  duties  of   a
certified nurse aide.

          AS 08.68.270 applies to licensing of nurses:  The board
may  deny,  suspend, or revoke the license of a person who . .  .
(2)  has been convicted of a felony or other crime if the  felony
or  other  crime  is substantially related to the qualifications,
functions or duties of the licensee.

          Although  AS  08.68.334(2) was applicable, the  hearing
officer  and  superior  court relied on  AS  08.68.270(2).   This
mistake was harmless in light of the similarities between the two
statutes  and  the  fact that forgery is a substantially  related
offense under both provisions.  See 12 AAC 44.705(16).

     4    The record establishes that Platts theft conviction was
set  aside  pursuant to AS 12.55.085 in November 2003.   Although
the  record suggests that Platts forgery conviction was set aside
at the same time, the record is not clear on this issue.  Because
both  parties treat Platts forgery conviction as having been  set
aside, we do the same.

     5    92 P.3d 398 (Alaska 2004).

     6     Alaska  Ctr. for the Envt v. State, 80 P.3d  231,  236
(Alaska 2003).

     7    Id.

     8     Tesoro  Alaska Petroleum v. Kenai Pipe Line, 746  P.2d
896, 903 (Alaska 1987).

     9    AS 08.68.334(2); accord AS 08.68.270(2) (board may deny
license to nurse applicant person who has committed crime that is
substantially related to the qualifications, functions or  duties
of the licensee).

     10    AS 08.68.100(a)(1).

     11    12 AAC 44.705(16).

     12    AS 12.55.085 provides in relevant part:

          (a) Except  as  provided in (f)  of
                    this   section,   if   it
                    appears  that  there  are
                    circumstances          in
                    mitigation     of     the
                    punishment, or  that  the
                    ends  of justice will  be
                    served, the court may, in
                    its  discretion,  suspend
                    the     imposition     of
                    sentence  and may  direct
                    that    the    suspension
                    continue for a period  of
                    time,  not exceeding  the
                    maximum  term of sentence
                    that may be imposed or  a
                    period   of   one   year,
                    whichever is greater, and
                    upon   the   terms    and
                    conditions that the court
                    determines,   and   shall
                    place   the   person   on
                    probation,   under    the
                    charge and supervision of
                    the probation officer  of
                    the   court  during   the
                    suspension.
                    
          . . . .
     
          (e)  Upon the discharge by the court  without
          imposition  of  sentence, the court  may  set
          aside  the conviction and issue to the person
          a certificate to that effect.
          
     13    Journey v. State, 895 P.2d 955, 957 (Alaska 1995).

     14    See supra note 4.

     15     Doe  v. State, Dept of Pub. Safety, 92 P.3d 398,  406
(Alaska 2004).

     16    Larson v. State, 688 P.2d 592, 597 (Alaska App. 1984).

     17     Doe,  92 P.3d at 406 (discussing affirmative  defense
under AS 11.61.200).

     18    Id. at 408.

     19    See Larson, 688 P.2d at 597 (affirming superior courts
reliance on conduct underlying appellants set aside conviction to
classify the appellant as a worst offender and impose the maximum
sentence).

     20    902 P.2d 766 (Alaska 1995).

     21     Id. at 779; accord Larson, 688 P.2d at 598 (set aside
of  appellants earlier robbery conviction did not change the fact
that  a  conviction  had  taken  place  or  establish  that  [the
appellant] had not previously committed a robbery).

     22    Journey v. State, 895 P.2d 955, 962 (Alaska 1995).  Cf.
Spenard  Action  Comm.,  902 P.2d at 779 ([T]he  dismissal  of  a
charge  following the period of stayed imposition of sentence  is
in  the  nature  of  a pardon, not a declaration  of  innocence.)
(quoting  City  of  St. Paul v. Froysland, 246  N.W.2d  435,  438
(Minn.  1976)).   The only instance in which Alaska law  provides
that  an  adult  may have a conviction removed from  his  or  her
criminal record is where he or she is able to show that beyond  a
reasonable   doubt,  [the  conviction]  resulted  from   mistaken
identity or false accusation.  AS 12.62.180(b).

     23    Doe, 92 P.3d at 407.

     24     Id.  at 406 (citing Wickham v. State, 844 P.2d  1140,
1144 (Alaska App. 1993)).

     25    See id. at 406-07.

     26    Id. at 407.

     27     See  supra  note  19; see also AS  12.55.155(c)(8)  &
(c)(21)  (allowing  court to consider defendants  prior  criminal
history as aggravating sentencing factor).

     28    Doe, 92 P.3d at 407.

     29    AS 08.68.100(a)(1).

     30     While  it  is clear that the board relied  on  Platts
forgery  conviction in denying Platts application, it is  unclear
whether the board relied on her theft conviction.  In a July 2002
letter the board stated that it had denied Platts application  in
accordance  with 12 AAC 44.705(16) Felony forgery  conviction  in
March  1998.  But in its July 2004 letter written to explain  why
it  declined  to  adopt the hearing officers recommendation,  the
board stated that it placed particular weight on [Platts] serious
and  repeated  criminal conduct.  In light of this ambiguity,  we
interpret  the  boards  action as relying  only  on  the  forgery
conviction.

     31    Journey v. State, 895 P.2d 955, 959 (Alaska 1995).

     32    Id.

     33    Wendte v. State, Bd. of Real Estate Appraisers, 70 P.3d
1089,  1091  (Alaska 2003) (quoting Handley  v.  State,  Dept  of
Revenue, 838 P.2d 1231, 1233 (Alaska 1992)).

     34     Doyon  Universal Servs. v. Allen, 999 P.2d  764,  767
(Alaska 2000) (citations omitted).

     35    AS 44.62.500(b) and (c) provide in relevant part:

          (b) If a contested case is heard by a hearing
          officer  alone,  the  hearing  officer  shall
          prepare  a  proposed decision in a form  that
          may be adopted as the decision in the case. .
          .  .   Except  as  otherwise provided  in  AS
          44.64.060(e), for a hearing conducted by  the
          office of administrative hearings, the agency
          itself may adopt the proposed decision in its
          entirety, or may reduce the proposed  penalty
          and   adopt  the  balance  of  the   proposed
          decision.
          
          (c)  If  the proposed decision is not adopted
          as provided in (b) of this section the agency
          may   decide   the  case  upon  the   record,
          including  the  transcript, with  or  without
          taking additional evidence, or may refer  the
          case  to  the same or another hearing officer
          to take additional evidence. . . . The agency
          may  not  decide a case provided for in  this
          subsection  without giving  the  parties  the
          opportunity to present either oral or written
          argument  before  the  agency.  .  .  .  This
          subsection  does  not  apply  to  a   hearing
          conducted  by  the  office of  administrative
          hearings.
          
     36    See Wendte, 70 P.3d at 1091.

     1    See, e.g., Fields v. Kodiak City Council, 628 P.2d 927,
932-33 (Alaska 1981) (The threshold question in an administrative
appeal is whether the record sufficiently reflects the basis  for
the  [agencys]  decision  so  as to  enable  meaningful  judicial
review.  .  .  .   Only  by focusing on the relationship  between
evidence and findings, and between findings and ultimate  action,
can  we  determine whether the [agencys] action is  supported  by
substantial evidence.).

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Soteria-alaska
Choices
AWAIC