Past convictions left out of licensing procedure

California can. Hawaii can’t.

When a doctor, physician assistant or other health care provider applies for a license in California, state law allows regulators to consider a criminal conviction that has been expunged from the applicant’s record as long as the underlying offense relates directly to the qualifications or duties of the job.

Hawaii law prohibits regulators from considering expunged records.

The two approaches can make a substantial difference in how each state decides certain license applications, raising questions about whether Hawaii’s law should be changed.

Consider the cases of Leonard J. Ferguson and Scott H. Smith.

Both men separately applied to Hawaii and California for physician assistant licenses. Both men received Hawaii licenses but were denied credentials in California.

Denied, then approved

In July 2007 Hawaii’s Department of Commerce and Consumer Affairs staff approved an unrestricted license for Ferguson just weeks after his application was rejected in California for the second time.

California twice refused to grant him a license because of his 1998 conviction for having sex with a minor — statutory rape — and his attempt to mislead or lie about what happened to his then-employer and subsequently to licensing authorities, state records show. Regulators were able to consider the misdemeanor conviction even though it was expunged from his record in 2003.

Ferguson was in his mid-30s and a California Highway Patrol officer when he had intercourse with the 17-year-old girl, according to Medical Board of California documents. When questioned by investigators, he denied having any sexual contact with her, denied knowing her true age and denied inappropriately using his employer’s law enforcement database to access her records, knowing all that was false, according to the documents.

Ferguson lost his law enforcement job over the incident, the records say. When he applied for a physician assistant’s license the first time in 2003, he failed to include the conviction on his application — an expunged conviction must be disclosed — and then tried to minimize the omission and misrepresented facts related to the conviction, the documents show. His first application was denied in 2005.

In issuing the second denial, the California committee acknowledged that Ferguson had taken important and impressive steps toward rehabilitation. A forensic psychiatry expert he hired determined that Ferguson could safely practice as a physician assistant but should continue therapy, according to the California documents.

The panel, however, decided that the severity of the initial misconduct and Ferguson’s pattern of dishonesty lasting several years did not justify the risk of issuing him a license, particularly given that the job requires strong ethics and honesty, the documents show.

"It would not be consistent with the public interest at this time to issue a license of any kind," the committee ruled in June 2007.

Less than a month later, Hawaii granted him a license.

Ferguson no longer works at the Maui facility where he got a job after moving to Hawaii, and the Honolulu Star-Advertiser could not reach him for comment. He finally received a restricted license from California in 2009, with regulators imposing a variety of conditions. The license was canceled in 2011.

Crimes not counted

DCCA officials said they could not comment on either licensing case, citing state laws that make applications and the information gleaned from the process confidential.

But in issuing a license to Ferguson, the agency should have had access to the California records for at least the first denial. And although it could not consider his expunged record in deciding whether to grant a license, it would have been able to consider the denial itself and the reasons behind the denial in deciding whether to issue Ferguson a license.

In July 2008, a year after Ferguson obtained his license, Smith received his. Like Ferguson’s, Smith’s Hawaii license was unrestricted.

But California wouldn’t even give him a restricted license.

California regulators cited Smith’s 2004 no-contest plea to being an accessory to a crime for his role in planning a 2001 home invasion of his then-girlfriend’s ex-husband’s residence, according to California medical board records. Others actually carried out the invasion, during which the ex-husband’s brother was seriously injured, but Smith was to be paid $5,000 for his help in planning it, the records show.

In that role he obtained false identifications, hired the perpetrators and gave them money to purchase cocaine that was to be left at the residence, creating the appearance of a drug deal gone bad, the records say.

Police eventually caught up with Smith, who initially refused to cooperate and then tried to blame his girlfriend, according to the documents. When he finally agreed to cooperate, authorities dropped charges of conspiracy to commit a crime, robbery and burglary. His felony conviction of being an accessory to a crime was reduced to a misdemeanor in 2007 and later expunged.

Regulators noted that Smith had been law-abiding since his conviction and showed remorse for his actions.

But in approving the committee’s recommendation to deny the license, an administrative law judge in 2010 cited the seriousness of Smith’s crime and his failure to fully disclose details of it on his application, according to the records. "Protection of the public is paramount," the judge wrote in his decision.

Smith did not respond to Star-Advertiser phone messages left at his workplace on Maui.

Asked whether Hawaii’s law on expunged records should be changed, DCCA officials said they recognize that the statute, HRS 831-3.1, is grounded in public policy that limits what conviction information can be considered. But they said they were open to suggestions for improving the licensing process.