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McClanahan v. West Virginia Board of Examiners for Registered Professional Nurses

Supreme Court of West Virginia

April 10, 2017

Jonathan Lowell McClanahan, RN, Petitioner Below, Petitioner
v.
West Virginia Board of Examiners for Registered Professional Nurses, Respondent Below, Respondent

          MEMORANDUM DECISION

         Petitioner Jonathan McClanahan, R.N., by his counsel, Lisa L. Lilly, challenges the discipline affecting his nursing license imposed by the Board of Examiners for Registered Professional Nurses (the "Board"). Based upon Petitioner's use of marijuana detected by a pre-employment drug screen, the Board suspended Petitioner's license for one year. The Board stayed the suspension in lieu of a two-year period of probation, during which Petitioner was required to meet certain terms and conditions. On appeal, Petitioner argues that the Board's order should be vacated because, among other things, the Board did not act in a timely manner. The Board, by its counsel, Greg S. Foster, Assistant Attorney General, contends that following receipt of the hearing examiner's recommended order, it then timely issued its final order imposing discipline.

         Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, for the reasons expressed below, we affirm the September 17, 2015 order of the Circuit Court of Kanawha County. Because this case presents no new or significant issue of law, we find this matter to be proper for disposition in a memorandum decision in accordance with Rule 21 of the West Virginia Rules of Appellate Procedure.

         In November 2013, Petitioner was offered a position as a registered nurse at Raleigh General Hospital ("RGH"). The offer was conditioned on Petitioner passing a pre-employment drug screen. When the test returned positive for marijuana, RGH rescinded Petitioner's offer of employment and notified the Board, which initiated disciplinary proceedings against Petitioner. Following an investigation, the Board engaged a hearing examiner to conduct an evidentiary hearing, which was held on October 9, 2014. The evidence at the hearing revealed that both of Petitioner's urine samples (Samples A and B), which were submitted to two different laboratories, tested positive for marijuana.

         Petitioner testified at the hearing and denied that he smoked marijuana. He contended that the results could have been false positives caused by several over-the- counter medications he was taking at the time, which he identified for the Board. Dr. Douglas Aukerman, a licensed physician and certified medical review officer who appeared as an expert witness for the Board, testified and countered Petitioner's false-positive theory on the basis that (1) none of the medications that Petitioner had been taking contained THC, a compound found in marijuana; and (2) three separate mass spectrometry tests were independently positive for marijuana. Dr. Aukerman concluded that it was neither medically nor scientifically possible that the results were false positives. Petitioner did not offer expert testimony to contradict the testimony of Dr. Aukerman.

         The hearing examiner subsequently issued his findings of fact, conclusions of law and recommended order to the Board on February 24, 2015. He found that Petitioner had used marijuana, an illegal substance, prior to his drug screen at RGH. Accordingly, the hearing examiner concluded that the Board met its burden of demonstrating that Petitioner was subject to discipline pursuant to West Virginia Code § 30-7-11(c), which states:

The board shall have the power to deny, revoke or suspend any license to practice registered professional nursing issued or applied for in accordance with the provisions of this article, or to otherwise discipline a licensee or applicant upon proof that he or she . . . .
(c) [i]s unfit or incompetent by reason of negligence, habits or other causes . . . .

W.Va. Code § 30-7-11(c) (2015).[1] The hearing examiner also concluded that Petitioner was subject to discipline pursuant to West Virginia Code § 30-7-11(f), which simultaneously allows the Board to discipline a licensee upon proof that he or she "[i]s guilty of conduct derogatory to the morals or standing of the profession of registered nursing." W.Va. Code § 30-7-11(f) (2015).

         On March 30, 2015, the Board issued its Final Order and Final Order Addition[2]adopting the hearing examiner's decision in its entirety. The Board suspended Petitioner's nursing license for one year but stayed the suspension contingent upon Petitioner successfully completing a two-year probationary period, during which Petitioner was required to comply with several terms and conditions. The Board also required that Petitioner pay a fine and administrative costs in the amount of $2, 000.

         On or about May 4, 2015, Petitioner appealed the Board's order to the Kanawha County Circuit Court and identified various assignments of error. Based on the record developed before the hearing examiner, the circuit court ruled that the Board's decision was supported by a rational basis and substantial evidence and affirmed the Board's Final Order. Petitioner now appeals to this Court.[3]

Regarding the review of administrative orders, we have held:
[o]n appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) and reviews questions of law presented de novo; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.

Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). That statute provides the following standard for review:

[t]he [circuit] court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:
(1)In violation of constitutional or statutory provisions; or
(2)In excess of the statutory authority or jurisdiction of the agency; or
(3)Made upon unlawful procedures; or
(4)Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on ...

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