Wagner v. Mo. State Bd. of Nursing

• Citation: 570 S.W.3d 147
• Decision Date: 05 March 2019
• Docket Number: WD 81992
• Parties: Mark WAGNER, Appellant, v. MISSOURI STATE BOARD OF NURSING, Respondent.
• Court: Missouri Court of Appeals

570 S.W.3d 147

Mark WAGNER, Appellant,
v.
MISSOURI STATE BOARD OF NURSING, Respondent.

WD 81992

Missouri Court of Appeals, Western District.

OPINION FILED: March 5, 2019

David F. Barrett, Jefferson City, MO, Attorney for Appellant.

Kevin Hall, Associate General Counsel – Missouri State Board of Nursing, Jefferson City, MO, Attorney for Respondent.

Before Division Three: Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick and Anthony Rex Gabbert, Judges

Mark D. Pfeiffer, Presiding Judge

Mr. Mark Wagner ("Wagner") appeals from the judgment of the Circuit Court of Cole County, Missouri ("circuit court"), affirming the decision of the Missouri State Board of Nursing ("Board"), which found cause to discipline and imposed discipline against Wagner’s nursing license, which discipline consisted of suspension for six months, followed by probation for three years, subject to terms and conditions. We affirm the circuit court’s

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judgment.¹

Factual and Procedural Background

Wagner had been licensed by the Board since 1996 as a registered professional nurse, license number RN 145493. He also held a nursing license in the State of Kansas. He had been employed at Olathe Medical Center for ten years. One of his coworkers on January 21, 2014, was a nineteen-year-old female nurse aide, F.D.C. On that date, Wagner was forty-eight years old. F.D.C. would assist Wagner in caring for some of his patients. In addition to Wagner’s professional relationship with F.D.C., Wagner admitted that he would "flirt" with her at work. He did not have a personal relationship with her outside of work. Wagner justified his flirting as his way of trying to make F.D.C. "feel more comfortable" because he felt she was not fitting in too well in her role as part of the team at Olathe Medical Center.

On the night of January 21, 2014, one of Wagner’s patients, an elderly gentleman, had been repeatedly getting out of bed and complaining of pain and nausea. About 11:00 p.m., the patient jumped out of bed, setting off his bed alarm. Wagner ran into the patient’s room. After Wagner took the patient to the bathroom and then took him back to bed, Wagner returned to the nurses' station. When F.D.C. finished taking patients' vital signs, she came to the nurses' station. Wagner informed her that she needed to take orthostatic vitals on the patient Wagner had just taken to the bathroom. Wagner told F.D.C. that the patient should be awake. Wagner accompanied F.D.C. to assist her. Upon arrival into the patient’s room, to Wagner’s "amazement," the patient was asleep. Wagner then proceeded to offensively touch F.D.C. on her buttocks, without invitation or permission, while telling her they should leave the patient alone and get his orthostatic vitals later.

As a direct result of Wagner’s misconduct related to the offensive touching of F.D.C., Wagner was charged in the District Court of Johnson County, Kansas, by amended complaint with misdemeanor battery in violation of K.S.A. 21-5413 and K.S.A. 21-6602(a)(2) for unlawfully and knowingly causing physical contact with F.D.C., "done in a rude, insulting or angry manner." On January 30, 2015, Wagner pleaded guilty as charged. The court sentenced Wagner to an underlying jail term of six months, suspended execution of the sentence, and placed him on probation for a term of twelve months. The sentencing court also imposed several special conditions on Wagner’s probation, including following the recommendations of a sex offender evaluation, registering pursuant to K.S.A. 22-4906(i), and having no contact with F.D.C. Additionally, Wagner’s probation officer did not allow Wagner to work as a nurse while on probation.

The Board’s Division of Professional Registration filed a Request for Disciplinary Hearing with the Board, alleging that Wagner’s plea of guilty to misdemeanor battery in the District Court of Johnson County, Kansas, constituted cause to discipline his nursing license pursuant to section 335.066.2(2). The Board conducted a disciplinary hearing at which Wagner testified. Among the documents the Board received into evidence were certified copies

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of the records from Wagner’s case in the District Court of Johnson County, Kansas, including the initial complaint as well as the amended complaint, to which Wagner pleaded guilty, and the judgment. The certified court records cited K.S.A. 21-5413 and K.S.A. 21-6602(a)(2).² The language in the amended complaint³ tracked the language of K.S.A. 21-5413 and classified the misdemeanor as a class B misdemeanor pursuant to section 21-6602(a)(2).

The Board issued its Findings of Fact, Conclusions of Law, and Disciplinary Order ("disciplinary order"). The Board cited K.S.A. 21-5413 and K.S.A. 21-6602(a)(2) in its Findings of Fact and quoted both statutes in its Conclusions of Law. The Board determined that there was cause to discipline Wagner’s nursing license for his sexual advances toward a nineteen-year-old nurse aide coworker by offensively touching her on her buttocks, without invitation or permission, in a patient’s room while the patient was asleep. The Board determined that Wagner was subject to discipline because the definition of the battery offense Wagner pled guilty to, as relevant to this appeal, involved moral turpitude. The Board suspended Wagner’s nursing license for six months, followed by three years' probation, subject to terms and conditions.

Wagner petitioned for judicial review of the Board’s disciplinary order. The circuit court entered judgment, affirming the Board’s decision.

Wagner timely appeals.

Standard of Review

" ‘Article V, section 18 of the Missouri Constitution articulates the standard of judicial review of administrative actions.’ " Owens v. Mo. State Bd. of Nursing , 474 S.W.3d 607, 611 (Mo. App. W.D. 2015) (quoting Albanna v. State Bd. of Registration for Healing Arts , 293 S.W.3d 423, 428 (Mo. banc 2009) ). On appeal, we must determine whether the actions of the agency " ‘are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.’ " Id. (quoting MO. CONST. art. V, § 18 ). We view the evidence objectively and not in the light most favorable to the agency’s decision. Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223 (Mo. banc 2003).

We will affirm the agency’s decision unless it:

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

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(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

§ 536.140.2.⁴ "We will not substitute our judgment for that of the administrative agency on factual matters, but we review any questions of law concerning an agency’s decision de novo." Owens , 474 S.W.3d at 611. "The Board’s decision is presumed valid, and the burden is on the party attacking it to overcome that presumption." Curtis v. Mo. Bd. for Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Prof'l Landscape Architects , 534 S.W.3d 264, 267 (Mo. App. W.D. 2017) (internal quotation marks omitted).

Analysis

Wagner raises three points on appeal. In his first point, he asserts that the Board acted in excess of its statutory authority in that misdemeanor battery does not meet the requirements of section 335.066.16 that the offense must involve the qualifications, functions, or duties of a licensed nurse; involve fraud, dishonesty, or an act of violence; or involve moral turpitude. In his second point, he contends that the Board’s decision was unsupported by competent and substantial evidence upon the whole record because the record does not include a copy of the Kansas statute that Wagner is alleged to have violated. In his third point, he avers that the Board acted in excess of its statutory authority in requiring him, as a disciplinary sanction, to comply with notice, practice, and reporting requirements for out-of-state practice, because the Board had no authority over his conduct subject to licensure in a sister state.

Point I

First, Wagner asserts that the Board acted in excess of its statutory authority when it found he was subject to discipline. He claims that the simple battery, to which he pleaded guilty in the District Court of Johnson County, Kansas, does not meet the requirements of section 335.066.16 that the offense must involve the qualifications, functions, or duties of a licensed nurse; involve fraud, dishonesty, or an act of violence; or involve moral turpitude. Wagner admits that his conduct was "boorish," "rude," and perhaps "insulting" but that it was not an act of moral turpitude.

"A determination of whether a cause exists to discipline a nursing license under section 335.066.2 is generally made by the Administrative Hearing Commission." Owens , 474 S.W.3d at 611...