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Supreme Judicial Court Permits State Licensing Boards to Consider Sealed Criminal Records During Disciplinary Proceedings

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By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.

Doe, a physician, who faced a misdemeanor charge of engaging in sexual conduct for a fee, had his criminal case continued without a finding and ultimately dismissed. As there was no requisite time restriction, Doe petitioned the court to seal his criminal record under § 100C. The court did so, finding that substantial justice would best be served by allowing the record to be sealed.

Prior to this sealing, as was mandated of him, Doe informed the Board of Registration in Medicine of his criminal charge. As the Board is statutorily required to consider disciplinary action when a physician is charged with a crime, the Board began an investigation. After the investigation was underway, Doe’s record was sealed. Doe then petitioned in court to preclude the Board’s use of the now-sealed record. Ultimately, the SJC held that the Board could consider the sealed record as the Board had access to it pre-sealing, but the Board’s published decision could not publicly disclose any information derived directly from the sealed record. However, the opinion continued, the Board may disclose any evidence regarding the criminal conduct which the Board obtained separately and distinctly from the sealed record (such as the underlying police report, which Doe had provided before the case was sealed, and his statements in an interview with the Board).

This decision grants the Board access to and use of criminal records which may be sealed by the time the Board renders its decision.  Physicians are required to renew their licenses every two years. In their application for renewal, physicians must provide an updated criminal history, as well as a CORI release to authorize the Board to access their criminal history. In Doe’s September 2017 application for renewal, he provided a copy of the criminal docket and police reports associated with his misdemeanor charge. Records that are subsequently sealed under § 100C during the pendency of a Board investigation may still be permissibly used by the Board as a basis for its final disciplinary determination, but may not themselves be publicly disclosed. In Doe’s case, the Board can cite Doe’s self-report and the statements Doe made during an interview with the Board in their decision. However, the Board is not required to publish its basis for any final disciplinary decision, offering the entity significant discretion regarding the specificity of the information it discloses to the public. As the Board does not have to provide a basis for its decision, there is little accountability to ensure the Board takes a holistic approach in their determination, meaning that the Board can heavily rely on the sealed record without ever acknowledging the record itself.

Sealing statutes are written with the intent to allow those who have been involved with the criminal justice system to leave the past in the past, and, when “substantial justice would best be served,” allow individuals to live their lives without fear of their records affecting their housing, educational, and job opportunities. The SJC’s interpretation of the sealing statute will allow the Board to rely on records that a court has sealed in the interest of justice to justify disciplinary action. While the Board has a mandate to investigate misconduct by physicians, greater deference should be given to a court’s decision that a charge that did not lead to a conviction should be sealed and therefore should not lead to further adverse action. This decision is not limited to the Board of Registration in Medicine; it will likely be applied to all individuals subject to professional licenses – everyone from nurses to physical therapists to barbers and cosmetologists. The purpose of sealing is to prevent past criminal proceedings from unjustly interfering in a person’s future. Because Board disciplinary decisions can be made without providing the basis or rationale behind them, it will be very difficult to tell how frequently this situation will arise, and what effect the SJC’s decision will have on licensed professionals.

If you are facing an investigation by a licensing board, or want to explore your options for sealing your criminal records, contact us at (617) 742-6020.

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