ALJDEC decisions subject to certification as final

15A-1207125-NUR-res · State Board of Nursing · 2015-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: October 29, 2014, at 9:00 a.m.; December 5, 2014, at 9:00 a.m.; the record was held open until December 19, 2014. APPEARANCES: Applicant Dorothy “Dottie” Putignano appeared on her own behalf; the Arizona State Board of Nursing (“the Board”) was represented by Elizabeth A. Campbell, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Board has the authority to regulate and control the practice of nursing in the State of Arizona, pursuant to the Nurse Practice Act. The Board also has the authority to determine whether applicants qualify for certification or licensure under the Nurse Practice Act. On or about June 18, 2012, Ms. Putignano submitted an Application for Certified Nursing Assistant (CNA) Certification by Endorsement to the Board.[1] With the application, Ms. Putignano submitted her fingerprints.

The Board assigned Senior Investigator Virginia Richter to investigate the application. On or about November 8, 2012, Ms. Richter sent a letter to Ms. Putignano, requesting that she complete and return within four weeks an enclosed Court and Conviction Questionnaire.[2] Ms. Putignano did not complete and return the Court and Conviction Questionnaire. Instead, on or about December 6, 2012, Ms. Putignano sent a letter to Ms. Richter that stated, in part: Pleased to notify you the State of Georgia under law has placed my records of miniscule misdemeanor to be expunged when first my written request is submitted to the local agencies.

My telephone call to you November 28, 2012 I quote” This is Dorothy Putignano brought to my attention June 14, 2012 request for license is truthful. There is no undesirable such as the like convictions. The industry of medical science must be perfect. I’ve worked in communications with the Bell Systems before entering the nursing industry. Subordinate only to the State of Georgia. Working with authorities there and pretty close in completion. Georgian Code don’t permit dissemination whenever there is adverse questions to employment or license. Happy to work with Arizona Nursing Board without inferring. Please expect your formal written request at due date, my consonance to this is readily available not easily accessible.” End quote.

January this year started work with Georgia State Executives in the legislation for protection of data bases to prevent misread, or misfeasance. The Georgia Bureau of Investigation record is enclosed so proved. Georgia State government law have a compliance with the disclosure provisions of O.C.G.A. 35-3-34/35- 3-35 is required. This means unauthorized (the only author is the named) dissemination of this record or information HEREIN VIOLATES [GEORGIA] LAW. The State of Illinois July 18, 2003 first ever in the state legislation, Public Law 93-322 after only five years miniscule misdemeanor may be expunged given named person actions are credible.[3]

Ms. Putignano attached approximately 40 pages of documents to her December 6, 2012 letter, including a letter thanking her for her jury duty, an article stating that a court had declined to strike down the moment of silence that was observed in Georgia schools, and letters to Ms. Putignano dated in 2007 from the Federal Reserve Bank of New York. Ms. Putignano also attached a letter from the Georgia Bureau of Investigation that was addressed to her and dated October 18, 2012, informing her that “[y]our criminal history record expungement request has been completed effective 04/26/2012. The arrest date of 06/14/1984 has been successfully expunged and will not appear on your criminal history for employment, licensing or permits.”[4] On or about January 28, 2013, Ms. Richter received another letter from Ms. Putignano, that provided as follows: THIS TELEPHONE CALL WAS PLACED JANUARY 22, 2013 TO MS. BONNIE RICHTER. THE CALL PRESERVED THE AFFIRMATIVE LETTER DATED DECEMBER 6, 2012 TO MS. BONNIE RICHTER.

“Ms. Richter this is January 22, 2013 Dorothy Putignano with regard to June 14, 2012 request for CNA Licensure. If you please DPS October 22, 2012 wrote denial from information not on record. I reiterate, DPS October 22, 2012 wrote denial from information not on record. I brought to DPS (attention) badge 5641 January 10, and January 15, 2013 respectfully. I sent to DPS a Fulton County State Court Certified Judiciary copy of the record also re requested serious review now with certified copy. I notified the supervisor to badge 5641 of the error. I await DPS written formal review acknowledgement of their written error out from DPS. Thank you so much.” End quote.

Notation: Supervisor was called (Voice mail) on January 18, 2013.

Notation: Spoke directly to badge 5641 January 15, 2013 and sent for the second time documents sent January 10, 2013 respectfully. Voice mailed badge 5641 on January 10, 2013 to seek transmittal sent January 10, 2013.[5]

On or about January 29, 2013, Ms. Richter sent a second letter to Ms. Putignano, reminding her that on December 8, 2012, the Board had sent her a written notification that she had positive fingerprint results against her application and a request that she complete and return a Court and Conviction Questionnaire to the Board for every arrest and/or conviction that she had ever received. Ms. Richter also warned Appellant that “[f]ailure to cooperate with the Board during an investigation may be considered a violation of the Nurse Practice Act and the Board may take disciplinary measures against your application” and that “[w]ithout your explanation of events, the Board may have no choice but to rule for a disciplinary action.”[6] On or about February 4, 2013, Ms. Putignano sent the Board a copy of a letter to the Director of the Arizona Department of Public Safety (“ADPS”), requesting that he review her fingerprint card application and reprimand the “misapprehension act of badge 5641 on October 22, 2012,” because “[t]here are no subsequent higher charges. No convictions of felonies.”[7] Ms. Putignano informed the Director of ADPS that “[t]he Arizona Nursing Board [is] conducting an investigation based from your department’s action sent to the Arizona Licensing Board that there were subsequent charges” and that “[u]nderstandable immediate attention at your dictate under statute is appreciated.”[8] On or about February 7, 2013, Ms. Richter received another letter from Ms. Putignano, as follows: The document sent to [the ADPS Director] February 4, 2013 was to protect the statute. The statute perservered [sic] in my miniscule [misdemeanor]. This document was sent to your attention. My June 14, 2012 initial application, and my November 28, 2012 call to your office proves this day there were no charges ever and certainly no convictions of felonies.

Please present my folder to the Board. As a matter of legal record a petition by and through my attorney August 1980 is cleared, and was certified by deputy clerk of the Criminal division State Court of Fulton County Georgia. November 30, 2012. The cleared certification is now with prosecutor for signature and finalization ready for Georgia Bureau of Investigation. Discretion being asked of the authorities. May only be shown at a formal hearing and not submitted to Arizona Nursing Board of anyone else. This being the only explanation to why only subordinate to the State of Georgia. The November 30, 2012 embossed judicial disposition to each of the miniscule [misdemeanor] are to my hand.

In considering my good steady work history there is while employed at the Archdiocese of Chicago an incident where police were called and complaint written by officer, against niece to client. This record is presented along with both Federal and State services provided in the protection of employee Dorothy Putignano. On August 8, 2003 Archdiocese withdrew participation. Document at the initial time May 2003 rendered to my behalf with full benefit.

If my application is accepted please be assured my due diligence, great regard to my supervising registered nurse will provide wholesome, safe and enjoyable care to the most delicate seniors like myself, to now my new home State of Arizona.[9]

Ms. Putignano attached to the February 7, 2013 letter various documents dated during the year 2003 regarding the termination of her employment by the Catholic Charities of the Archdiocese of Chicago and a February 27, 2004 Nurse Aid Training Competency Evaluation Program. On or about April 30, 2013, the Board received copies of letters that Ms. Putignano had written to or received from other Arizona agencies, including (1) A letter dated March 7, 2013, that Ms. Putignano had written to an official at ADPS regarding her “miniscule msdemeanor’s” stating that “[t]he now recent law GA HB 1176 effective date July 1, 2012 makes way for restrictive record”;[10] (2) A letter dated March 21, 2013, that Ms. Putignano had written to the Arizona Board of Fingerprinting (“ABF”) stating that “[t]he years 1977-1984 are now under State of Georgia Legislations”;[11] (3) A letter dated April 12, 2013, to Ms. Putignano from the Executive Director of the ABF informing her that “[u]nder an expedited review, the [ABF] has granted you a good cause exception for a Level 1 fingerprint clearance card”;[12] and (4) A Level 1 fingerprint clearance card with an expiration date of April 17, 2019.[13] On or about July 16, 2013, Ms. Richter sent a third letter to Ms. Putignano to remind her again that she had not yet submitted a Court and Conviction Questionnaire to the Board, in relevant part as follows: On January 29, 2013, you were sent written notification that you have positive fingerprint results associated with your CNA application and you were requested to complete and return a “Court and Conviction Questionnaire” to the Board for every offense (arrest and/or conviction) that have received to the Board for review. You were asked to complete this questionnaire, submit police reports and court documents. If the court and police documents are no longer available, you would need to submit a letter on letterhead from those agencies indicating the records have been destroyed. In addition, you need to submit an explanation in your own words for each offense. You have not responded to this request. Failure to cooperate with the Board during an investigation may be considered a violation of the Nurse Practice Act and the Board may take disciplinary measures against your application. Enclosed is another questionnaire to complete for EACH offense. Complete and return the questionnaire along with any supporting documentation within 2 weeks. . . .[14]

As part of the Board’s investigation, on or about November 26, 2013, the Board issued a subpoena duces tecum to Ms. Putignano’s former employer 24/7 Able Health Care, Inc. in Des Plaines, Illinois (“24/7 Able”). According to the documents that 24/7 Able produced pursuant to the subpoena, on March 9, 2012, it had terminated Ms. Putignano’s employment and she was not eligible for rehire.[15] Pam Nicpan, 24/7 Able’s Director of Client Services, summarized the reasons for Ms. Putignano’s termination in 24/7 Able’s Employee Corrective Action Form for an incident that had occurred on March 5, 2012, in relevant part as follows: On numerous occasions, you refuse to communicate [with] Mrs. [H.] regarding her husband’s care. [Specifically] (1) When you’re asked the result of his accucheck (sugar test), you refuse to disclose results (2) Argumentative towards clients wife, Mrs. [H.], even raising your voice to her. (3) Refusing to involve client’s wife in Mr. [H.H.’s] day-to-day care, even asking wife to leave the room while performing care. (4) You’ve shown disrespect to Mrs. [H.] (4) Domineering towards co-worker, you tried to send your reliever home without involving the office.

From the past clients, your attention was called to be reminded that we work for the clients and their families. You were told that you have to change your “I want to be in control” attitude.

As a result of these major violations specified in your signed handbook, you are hereby terminated without eligibility of re- hire.[16]

Ms. Richter prepared an Application Investigative Report that summarized the results of her investigation and presented the report to the Board at its January 2014 meeting.[17] The Board considered Ms. Putignano’s application and Ms. Richter’s report and unanimously voted to deny Ms. Putignano’s application for certification.[18] On or about February 6, 2014, the Board issued an Order of Denial, denying Ms. Putignano’s application for certification under A.R.S. §§ 32- 1646 and 32-1663(A) and (B) because it found that she had committed unprofessional conduct as defined by A.R.S. § 32-1601(18)(d) and (j) (effective September 30, 2009) and A.R.S. § 32-1601(22)(d) and (j) (effective August 2, 2012) and A.A.C. R4-19-814(23)(a), (c), and (d) and A.A.C. R4-19-814(29) (effective January 31, 2009).[19] In February 2014, Ms. Putignano requested a hearing on the Board’s denial of her application for certification, but then cancelled her request.[20] On April 9, 2014, the Board’s Nurse Practice Consultant Kristen Wilson, MSN, CNS, PMHNP, BC, sent via facsimile a letter to Ms. Putignano, confirming an investigative interview scheduled for April 11, 2014.[21] The Board’s Associate Director, Valerie Smith, RN, MSN, is Ms. Wilson’s supervisor. Ms. Smith testified that Ms. Wilson reported that Ms. Putignano was tangential, rambling, and unfocused at the April 11, 2014 interview. In light of Ms. Putignano’s refusal to provide any details about her criminal history and the numerous irrelevant documents that she had provided to the Board during its investigation, Ms. Smith testified that the Board was concerned about Ms. Putignano’s psychological condition and ability to follow directions. At its May 2014 meeting, the Board unanimously voted to rescind the denial, to remand the case for further investigation, and to issue an Interim Order requiring Ms. Putignano to undergo a psychological evaluations at no cost to the Board with a Board-approved evaluator pursuant to A.R.S. § 32-1664(F) within sixty days.[22] If Ms. Putignano failed to comply with the Board’s Interim Order, the Board unanimously voted to reissue the Order of Denial and to charge an additional act of unprofessional conduct under A.R.S. § 32-1601(22)(i). On May 16, 2014, the Board issued the Interim Order. On May 20, 2014, Board staff mailed a copy of the Interim Order to Ms. Putignano with a cover letter and a list of Board-approved evaluators.[23] On May 23, 2014, Ms. Putignano sent a letter to the Board’s attorney, stating as follows: FOR THE REASON THAT ON APRIL 2, 2014 YOU COULD NOT ATTEND. THE ATTENDANTS ASKED OF MYSELF FOR COURTESY TIME TO VIEW AND HEAR THE MATERIAL EVIDENCES PRESENTED TO YOU ON MARCH 20, 2014. THIS WAS CLEARLY PRESENTED TO THE ARIZONA STATE NURSING BOARD AT MEETING MAY 16, 2014. AT THIS DATE YOU READ THE OFFICIAL DOCUMENT TO THE OPEN BOARD THAT THE DISC, IS ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY SWORN TESTIMONY OF PARTICIPANTS TO THE ADMINISTRATIVE HEARING HELD MAY 17, 2012.

THE COMPLETION REFUTES THE INVESTIGATION OF AZ STATE NURSING BOARD. THE COGNIZANT REASON FOR THE MOTION TO RESCIND JANUARY 30, 2014 ORDER OF DENIAL. . . . .

THE ONLY WAY THE INTERIM WILL PROCEED IS WITH RESCIND ORDER OF JANUARY 30, 2014 ORDER OF DENIAL. . . . THE AZ ADMINISTRATIVE [HEARING] BOARD REMANDED AZ STATE NURSING BOARD.

THE ONLY SUBJECT BEFORE THE BOARD MAY 16, 2014 IN DUTY TO PROCESS, WAS ORDER TO RESCIND. TO VIEW AND HEAR THE NOW COMPLETE MATERIAL EVIDENCES OF OFFICIAL SWORN TESTIMONY MAY 17, 2012. HELD IN ILLINOIS.

PLEASE MIND YOURSELF MY PROTECTIVE ABILITIES IN COGNIZANT WON’T FALTER AND WE’RE BOTH REMINDED “PREJUDICIAL TO THE TRUTH ONLY HARMS THE OPERATIVE OF JUSTICE.”[24]

On May 27, 2014, Ms. Putignano sent a second letter to the Board’s attorney, stating as follows: THE EVALUATION OF KRISTEN WILSON APRIL 11, 2014 DID NOT SPEAK TO THE MARCH 20, 2014 MATERIAL EVIDENCES THAT WERE PRESENTED IN A TIMELY MANNER APRIL 2, 2014. THE ONLY REASON UNDERSTOOD TO CANCEL THE ADMINISTRATIVE HEARING. WITHOUT [AN] EVALUATION TO THE NOW COMPLETE SWORN TESTIMONY WITH MATERIAL EVIDENCES THERE CAN BE NO OTHER EVALUATION. THE MEETING WITH MS. WILSON APRIL 11, 2014 ONLY SPOKE TO NURSING, WITH REFERENCES ONLY TO MY ACTUAL WORK EXPERIENCES. THE ACTUAL DISC WILL BE PRESENTED AT A FORMAL TIME TO THE ACTUAL DISCUSSION APRIL 11, 2014.

PLEASE ADVISE.

TO MY BELIEF NOW AZ STATE NURSING BOARD SHALL FIRST, SPEAK TO THE EVIDENCES PRESENTED MARCH 20, 2014. THE REASON FOR YOUR MOTION TO RESCIND THE INVESTIGATION OF MS. RICHTER. . . .[25]

On May 28, 2014, Ms. Putignano sent a similar letter to the Board’s Executive Director.[26] On July 8, 2014, Ms. Putignano sent a third letter to the Board’s attorney, as follows: IF I MAY, WILL YOU PLEASE SCHEDULE A SPECIFIC DATE AND TIME TO RECONVENE THE ADJOURNED SETTLEMENT OF APRIL 2, 2014. THERE IS RISK OF ETHICS VIOLATION. (THE MARCH 20, 2014 MATERIAL EVIDENCES HAVE YET TO PRESENT ITSELF TO THE BOARD) THESE CLEAR AND CONVINCING EVIDENCES (SWORN, OATH TESTIMONIES) NEED EVALUATION (REMAND).

NO WRITTEN CONSENT EVER EXISTED FOR PSYCHOLOGIC EVALUATION REPORTED TO THE BOARD MAY 16, 2014 FROM MS. KRISTEN WILSON, ARBITRARY/INTERIM UNUSUAL PUNISHMENT ORDER. . . .[27]

Ms. Putignano did not undergo a psychological evaluation by a Board- approved evaluator. On July 30, 2014, the Board issued an order denying Ms. Putignano’s application for certification as a CNA, citing A.R.S. § 32-1601(22)(i) (effective August 2, 2012), as well as the other grounds charged in the February 6, 2014 Order of Denial.[28] The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on October 29, 2014, and December 5, 2014. Ms. Putignano testified on her own behalf and submitted eight exhibits.[29] The Board submitted 23 exhibits and presented the testimony of three witnesses: (1) Ms. Nicpan, Ms. Putignano’s former supervisor at 24/7 Able; (2) Ms. Richter, the assigned senior investigator; and (3) Ms. Smith, the Board’s Associate Director. Hearing Evidence Ms. Nicpan testified that 24/7 Able employed Ms. Putignano as a caregiver under Ms. Nicpan’s supervision in March 2012. Ms. Putignano’s job responsibilities included taking care of the client nonmedically, providing custodial care, such as dressing, grooming, and bathing, performing light housekeeping, and providing medical reminders and routine monitoring, including checking the client’s blood sugar. Ms. Nicpan testified that she instructed Ms. Putignano that the results of monitoring were to be reported to the client’s wife, but that Ms. Putignano refused and became argumentative towards the client’s wife. Ms. Nicpan testified that as an employee, Ms. Putignano started out good, but then became very controlling and had difficulty accepting direction. As a result, 24/7 Able terminated Ms. Putignano’s employment. Ms. Putignano testified that she was required to comply with the Illinois administrative code that governed CNAs and that her refusal to violate the code resulted in her termination by 24/7 Able in Illinois. Ms. Putignano did not explain what administrative code provision required her to withhold information from the client’s wife or to refuse to follow her supervisor’s express instructions. Ms. Putignano testified that the administrative law judge in the unemployment proceeding upheld her appeal of 24/7 Able’s termination for cause and seemed to argue that the administrative law judge’s decision required the Board to grant her application for certification. The Administrative Law Judge attempted to explain that the issue of whether the Board should grant her application for certification to practice in Arizona was not the same issue as whether she should be allowed to collect unemployment benefits in Illinois, as follows: Ms. Putignano, you understand that I am aware that you appealed the termination and -- to the unemployment board, and under the statutes that govern unemployment in Illinois, your appeal was upheld. The statutes at issue in this case are the Arizona statutes relating to certified nursing assistants.

Self-represented litigants frequently think that somehow written statements and documentation in other proceedings are entitled to far more weight than in-person testimony subject to cross- examination because people can always lie. That's not the way the law treats it.

If you dispute what -- the basis of your termination from 24/7 Able, and if you dispute the significance that the Board attaches to such termination, the only way or the best way that you can make me aware of that dispute is to testify on your own behalf, subject to cross-examination in this hearing. And I am looking forward to hearing that testimony.

But it doesn't -- the fact that you made contrary statements or that you disputed it in writing to the Illinois unemployment insurance board, certainly, I can note that, and I am aware that you prevailed on your appeal; however, that does not resolve the issue in this hearing.

MS. PUTIGNANO: All right. Let's see. That's all of the same situation. I just want, you know, I can -- I just wanted to hear –

THE COURT: And I look forward to hearing your testimony on that.

MS. PUTIGNANO: Okay. Thank you.

THE COURT: But I can't just accept written statements in a collateral proceeding that did not involve the same issues as this one.

MS. PUTIGNANO: Okay. I also -- let's see, the document sent to the administrative law judge, May 14th, 2014, proof of transmittal, and proof that the judge stated did not receive the evidences. And I also have who I had spoken with at the IDES and telephone number. So that's a very important point, not receiving evidences, and that's also in the transcript.

Moving along. This is the table of contents that was before and was admitted into the record at the end of the transcript, all the documents I presented. And I make a note here for my further testimony of C3, 24/7 Able Care, description of violations, that was the complaint for –

THE COURT: And, again, I am looking forward to hearing your testimony, but we are spending a lot of time on these documents that are really not dispositive. I appreciate that you went through a great deal of effort in your unemployment insurance appeal in Illinois, and that you ultimately prevailed on that appeal, and -- and that is amply demonstrated in the record at this hearing. It is somewhat peripheral – not somewhat -- it is peripheral to the issues in the appeal here.

MS. PUTIGNANO: Okay. And May 21st, board of review, proof that I sent a document there, May 21st, '12. It's a very important document asking for the transcripts before it goes to the board of review. Last paragraph, that I was threatening to have me fired if had that notarized.

The next one is a board of review decision. I highlighted -- I underlined the most important points and, again, to inform the client's wife what the blood sugar was. I'm quite aware they're considering that the incident.

MS. CAMPBELL: Your Honor, we've been through this quite a bit. The Board of Review decision, I think, speaks for itself. It actually says that the claimant is not eligible for benefits. And, therefore, the Board of Review denied the ALJ's initial decision to deny benefits to Ms. Putignano in this case.

The documents do speak for themselves. Your Honor has admitted this exhibit. I'm not sure that additional testimony in this collateral matter is relevant.

MS. PUTIGNANO: Well, it's relevant because it was Election Day I was taken off the property. The claimant had sought to have subpoenas issued regarding the case.

THE COURT: Okay. I -- it speaks for itself. It's in the record.

MS. PUTIGNANO: Thank you.

THE COURT: You don't need to read it to me.

MS. PUTIGNANO: Okay. And it was affirmed, so everything there is believable.

THE COURT: Okay. Do you want to testify about what happened at Able or are you going to waive your right to tell your side of the story about that, and instead rely on the documents that I have admitted?

MS. PUTIGNANO: Please excuse me, Your Honor.

THE COURT: Again, I'm inviting you to testify. You don't need to be excused.

MS. PUTIGNANO: Okay. Well, let me -- all right. I'll start with my testimony. The reason I became a certified nurse assistant is from living 40 years working with the Bell System in communications and data entry. And looking out for myself and looking out for the elderly, I knew that they would be not considered given the vast communications that were now becoming apart of the useful people's lives. That's to my sincere and truthful reasoning for leaving the corporate, if you will, world. I did not make it a career. My documents had proved extensively my social commitment and my civic duty to the community.

And given that Ms. Richter – I decided -- I decided how -- realizing that they were going to open up a tremendous investigation upon me, I decided that I would choose the communication of writing. And because I have court cases that I have put through with Illinois, particularly McQuade 18 U.S.C. 2520, balancing singular privacy rights with the need for effective law enforcement. I chose to write call [phonetic] before I would call them so there would be no misinterpreta-tion or misinformation to what I was speaking to or making sure there was no tracking.

I lived in the State of Georgia for a considerable time, transferred from Illinois Bell to Southern Bell 1974 in my 20s. And have worked religiously to preserve behavioral, interdisciplinary merit, invited to the state of Georgia to speak to mental health by my state senator.

MS. CAMPBELL: Your Honor, relevancy.

THE COURT: Sustained.

MS. PUTIGNANO: From this point, I'm known to my Georgians as an outstanding citizen and called upon many times speak to issues that they know I will give them good information.

MS. CAMPBELL: Your Honor, relevancy. This isn't about her citizenship, this is about her failure –

MS. PUTIGNANO: I'm opening up the State of Georgia.

MS. CAMPBELL: -- failure to comply with the Board's requests for information during its investigative process, her conduct while employed as a caregiver at Able and Ready, and her failure to comply with the Board's interim order for psychological evaluation.

THE COURT: Sustained.

MS. PUTIGNANO: To the six requests -- well, the three requests from Ms. Richter for the questionnaire. The first one was letter of investigation November 16, January 29, 2013, July -- and then after I received my Department of Public Safety Level 1 federal clearance, July 16th, so at that point, I realized that the federal law was to protect -- federal law to protect me. And I pretty much assumed, if you will, that they would choose the arbitrary path to that, even after receiving good documentation and knowing that I was working with the legislative in Georgia to see that the databases are accurate and that the states are not allowing information being sent out, scanned out on people's lives.

THE COURT: Okay. There has been a federal regulation cited and you seem to be making legal argument based on Georgia and perhaps Arizona statute. I don't know if the federal regulation governs these things.

Although, not infrequently in hearings, witnesses are asked about the meaning of specific statutes, it's not really appropriate.

What the evidentiary portion of a hearing is about is what happened. And if there are legal arguments about the application of particular federal regulations or statutes or other state statutes or the Arizona statutes and regulations, they were cited in the order of denial, but, really, we're looking at behavior and events.

If you wish to make legal arguments based on other statutes, the time to do so is either in your oral closing argument at the end of the hearing; or if you wish, you may ask me to hold the record open for you to submit written legal memoranda after the hearing. But citation of legal authority and statutes is generally not appropriate during the fact-finding portion of a hearing.

MS. PUTIGNANO: If you, please, Judge Mihalsky, because my record is only in one state of Georgia and they were 30 years ago, it's clear -- well, the point I'm making is, December 6th, within a legible time, I gave documentation and let them – let Ms. Richter know specifically that I was working with and was chosen from the state of Georgia to work – to preserve what is truthful, of course, but still, we must maintain the privacy of the person. And I was the -- and I was the author to my record, no one else.

THE COURT: And I believe that I told you in the last hearing, that Arizona law governs your application. And if you want to make a legal argument to the contrary that this matter should be governed by Georgia law, you may do that in your closing argument or in a -- a written legal memoranda.

MS. PUTIGNANO: Okay.[30]

Ms. Putignano testified consistently with her correspondence to the Board before the hearing. On the first day of hearing, when the Board’s attorney asked Ms. Putignano about the “miniscule misdemeanor” referenced in her correspondence, Ms. Putignano continued to insist that the expungement of her criminal conviction in Georgia and ABF’s decision to grant a fingerprint clearance card precluded the Board from any further inquiry: Q. Now in this December 6, 2012 letter, you refer to, "Pleased -- " I'm on the very first paragraph here, first sentence, "Pleased to notify you the state of Georgia under law has placed my records minuscule misdemeanor to be expunged when first my written request is submitted to local agencies." What minuscule misdemeanor are you referring to, there, ma'am?

A. The DPS of the state of Arizona has cleared me with fingerprint clearance card of April 27, 2013.

Q. You are not answering my question. What miniscule misdemeanor are you referring to there?

A. Again, the Department of Public Safety has cleared me with the fingerprint card.

THE COURT: I'm going to instruct you to answer the question. What minuscule misdemeanor were you referring to?

THE WITNESS: I cannot, I will not – The hearing violates the state of Georgia. I will not answer. That's dissemination of the law. That will be dissemination. If you read to the next paragraph, it says -- and this is a hearing with regard to my license or employment, so it's against Georgia law. It's a disseminated call, disseminated question, Your Honor, Judge. Thank you.

THE COURT: Okay. The witness will not answer your question.[31] . . . .

Q. I want to go back to your October 18, 2012 letter from the GBI.

A. Yes.

Q. It says, "The arrest date of 6-14-84 has been successfully expunged and will not appear on your criminal history for employment, licensing or permit. You may obtain a copy of your criminal history. Keep in mind some employers use private companies to obtain criminal history records." It does reflect there was an arrest on 6-14-84. Can you tell me what that arrest was for?

A. Again, that's dissemination. It is now expunged. It is no longer -- it's nonexistent.

Q. Were you arrested on June 14, '84?

A. Again, it's a dissemination of a documentation that the GBI said is expunged.

Q. Will you please tell me what you were arrested for on June 14 of '84?

THE COURT: Ms. Putignano, it's not my job to give you legal advice. You are representing yourself here. And based on my experience as an Administrative Law Judge in Arizona, I don't want you to jeopardize an opportunity for licensure because you have a well-founded but perhaps erroneous belief in the law, especially since you came from another state. In administrative law, generally, expunged convictions are still – the conviction will not form a basis for license denial. However, the facts that gave rise to the arrest or conviction are still fair game. And the Fifth Amendment and the right against self-incrimination doesn't apply in administrative proceedings. And a person's refusal to answer questions about her criminal background may be, actually give rise to an inference. And so I want you to just -- I don't know if that's where we are going with that line of questioning. If the conviction was expunged, I don't know, but I assume it was not for murder or anything, any major crime. And it was a long time ago. But it's still fair game under Arizona law, the facts of it. Not the conviction. And that's all I'm going to say. And I have probably crossed the line on that. But because you are representing yourself, I don't want you to forego an opportunity.

MS. PUTIGNANO: Okay. Thank you, Judge Mihalsky. At this time that would be the author -- I am the author of my record, and Georgia allows me to refuse.

MS. CAMPBELL: Your Honor. I have asked, she's refused to answer, obviously –

THE COURT: That's what the record reflects.

MS. CAMPBELL: Thank you, Your Honor.[32]

On the second day of hearing, Ms. Putignano continued to argue that the Georgia expungement, the ABF’s issuance of the fingerprint clearance card, and her first-level administrative appeal of the denial of unemployment benefits in Illinois after the 24/7 Able’s termination of her employment prevented the Board from making any further inquiry into her criminal offenses or her termination from 24/7 Able or from denying her application. Ms. Putignano questioned Ms. Smith about whether she was aware of Ms. Putignano’s correspondence with the Board, resulting in the following exchanges: Q. You were made aware that I was -- October 22nd, to the exact date, October 22nd, 2012, was the date that DPS denied my fingerprint – denied my fingerprint clearance --

MS. CAMPBELL: Okay. Your Honor, I'm going to object.

THE COURT: Okay.

MS. CAMPBELL: This proceeding is not about -- and Ms. Putignano has -- has inflated these issues in previous days' testimony, so I just want to make sure we're square going forward. This proceeding is about the nursing board's denial of her CNA -- application for certification as a CNA; it is not about her fingerprint clearance card.

MS. PUTIGNANO: Your Honor –

THE COURT: I believe that we did spend some time on this in the previous hearing. There is nothing that -- I mean, this is a fact that is now in evidence, that you had a hearing before the Fingerprint Board and that you were given a fingerprint clearance card. And that, I don't think, is disputed.

However, the Board is governed by different statutes, different considerations. And although certainly you may make legal argument or factual argument from the fact of having been granted a fingerprint clearance card, I do ask that you confine your questions to the matters at issue in this hearing, which is whether you are qualified under the Board's statutes and regulations to be licensed as a certified nursing assistant.

MS. PUTIGNANO: All right. I, then, now have just one question.

BY MS. PUTIGNANO:

Q. Did you read the restrictive letter to Ms. Wilson?

A. I'm aware that you sent a letter to Ms. Wilson. I'm not sure what your question -- I mean, yes, I did read it -- I read a letter you sent to Ms. Wilson. I'll -- I'll put it that way.

MS. PUTIGNANO: No more questions.[33]

Ms. Smith testified that the Board performs a criminal background check of applicants for a CNA certificate because they will serve a vulnerable population who may not be able to articulate what happened under the CNA’s care or to defend themselves. The CNA will have access to patients’ and their family members’ confidential information, including social security numbers and dates of birth. The Board needs to know that an applicant will not take advantage of a vulnerable person if she is certified as a CNA. Ms. Smith testified that a CNA needs to be able to effectively communicate and report a patient’s status to supervising nurses, doctors, and family members who are involved in the patient’s care. A CNA often provides the most direct, hands-on care of a patient and is responsible for tracking the patient’s vital signs and well-being. Ms. Smith testified that it is very important for a CNA to be able to follow directions and to communicate her observations. Ms. Smith testified that she was present for the hearing and reviewed the Board’s exhibits, including Ms. Putignano’s correspondence. Ms. Smith testified that Ms. Putignano’s correspondence and testimony were hard to understand and referred to numerous irrelevant documents. Based on what she heard and read, Ms. Smith had concerns about Ms. Putignano’s ability to communicate and to follow directions. CONCLUSIONS OF LAW This matter lies within the Board’s jurisdiction under A.R.S. § 32- 1606(A)(8). Ms. Putignano bears the burden of proof to establish by a preponderance of the evidence that she is qualified to be a CNA in Arizona and that, therefore, the Board erred in denying her application.[34] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[35] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[36] Ms. Putignano’s conduct that led 24/7 Able to terminate her employment in March 2012, violated her supervisor’s express instruction to share the client’s blood sugar test with his wife, who was involved in the client’s care. Although Ms. Putignano insisted that an Illinois regulation required her to violate her supervisor’s instruction and to exclude the client’s wife from knowing his condition, she did not provide any regulation that justified her misconduct. Ms. Putignano’s defiant behavior while working as a CNA for 24/7 Able in March 2012, constituted unprofessional conduct under A.R.S. § 32- 1601(18)(d) (effective September 30, 2009),[37] specifically, A.A.C. R4-19- 814(29) (effective January 31, 2009).[38] A.R.S. § 13-904(E) provides that a person who has a prior misdemeanor conviction may not be categorically disqualified from employment by the state or any of its agencies. However, the statute also provides that such a person may be denied employment or a certificate to engage in an occupation “by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the . . . certificate is sought.” In licensing or certification proceedings, such as this one, “‘preclusion from certain types of employment is not the kind of penalty or disability which is eliminated by expungement. Such preclusion is intended for the protection of the public, not as further punishment . . . .’”[39] Whatever crime that Ms. Putignano was arrested for or convicted of in the early 1980’s in Georgia may bear a reasonable relationship to her qualifications to provide care to vulnerable patients in Arizona.[40] Therefore, under Arizona law, the Board is authorized to require Ms. Putignano to disclose the nature of the acts that formed the basis of her prior conviction, even after the conviction has been expunged.[41] Because acts still occurred, even if certain legal consequences of the judgment have been obviated, the facts underlying the conviction are a fair area of inquiry for the Board. Ms. Putignano’s insistence that she was not legally required to comply with the Board’s requirement that she complete an Court and Conviction Questionnaire was based on her sincere but mistaken understanding of Arizona law. Members of regulated professions are presumed to know the law and will be bound by statutes and regulations that regulate their profession: [T]here is no general due process requirement that the government give notice of the enactment of legislation, criminal or otherwise. . . . The promulgation of a law by a legislature in accordance with its constitutional obligations is deemed to constitute adequate notice to all. . . . As our supreme court has explained: "The administration of justice, the law itself as a practical system of the regulation of human conduct, requires that some fundamental assumptions should be made as postulates. The most important of all these is the assumption that all persons of sound and mature mind are presumed to know the law." Merrill v. Gordon, 15 Ariz. 521, 532, 140 P. 496, 500 (1914) (citation and internal quotation omitted); see also State v. Morse, 127 Ariz. 25, 31, 617 P.2d 1141, 1147 (1980) ("It is generally accepted that ignorance, or lack of knowledge, of the law which forbids the conduct with which one is charged is no defense.").

This concept of ignorance of the law being no excuse is codified in Arizona in A.R.S. § 13-204(B) (2001). See 1 Rudolph J. Gerber, Criminal Law of Arizona § 1-204(B) (2d ed. 1993) ("The underlying assumption of this section is that the content of the criminal law approximates the average person's actual assessment of tolerable behavior and that the citizenry knows everything needed to obey the law.").[42]

Under this well-established authority, Ms. Putignano’s fervently held but legally erroneous belief does not excuse her failures to cooperate with the Board’s investigation and to provide a completed Court and Conviction Questionnaire for the offenses that she committed in the 1980’s, for which the convictions were later expunged. Therefore, Ms. Putignano’s repeated refusals to provide any explanation of the offenses constitute unprofessional conduct under A.R.S. § 32-1601(22)(d) (effective August 2, 2012),[43] specifically, A.A.C. R4-19-814(23)(a) and (c),[44] and A.R.S. § 32-1602(22)(j).[45] Ms. Putignano’s repeated refusals between November 2012, and July 2014, to provide an explanation of the facts that led to her 1980’s arrests or convictions based on her mistaken understanding of Arizona law exemplifies that same kind of attitude and behavior that led 24/7 Able to terminate her employment in March 2012. The Board’s requirement in May 2014, that she undergo a psychological evaluation to see whether she could follow direction was not unreasonable. Although Ms. Putignano could refuse to undergo the evaluation, her refusal to comply with the Board’s order constitutes unprofessional conduct under A.R.S. § 32-1601(22)(i) (effective August 2, 2012).[46] The Board’s statutory responsibility is to “to more effectively protect the public health safety and welfare.”[47] Ms. Putignano’s behavior before and during the hearing shows that she is not willing to subject herself to anyone’s direction and that she cannot communicate relevant information, even if she is directed to do so. At this time, therefore, the Board did not err under A.R.S. §§ 32-1646[48] and 32-1663(A)[49] by denying Ms. Putignano’s application to be a CNA. RECOMMENDED ORDER In light of Applicant Dorothy “Dottie” Putignano’s failure to establish by a preponderance of the evidence that she is qualified to receive CNA certification at this time, it is recommended that the Board affirm its denial of Ms. Putignano’s application for a CNA certificate in Case No. 15A-1207125-NUR-res. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, January 7, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Joey Ridenour, RN, MN, Executive Director State Board of Nursing ----------------------- [1] See the Board’s Exhibit 1. [2] See the Board’s Exhibit 2 at 9. [3] The Board’s Exhibit 3 at 13. [4] The Board’s Exhibit 3 at 15. [5] The Board’s Exhibit 4 at 53. [6] The Board’s Exhibit 5 at 55. [7] The Board’s Exhibit 6 at 59. [8] Id. [9] The Board’s Exhibit 7 at 62. Ms. Putignano disclosed at the hearing that she is 64 years old. [10] The Board’s Exhibit 8 at 71. [11] Id. at 72. [12] Id. at 73. [13] See id. at 74. [14] The Board’s Exhibit 9 at 76. [15] See the Board’s Exhibit 10 at 84. [16] The Board’s Exhibit 10 at 89. [17] See the Board’s Exhibit 11. [18] See the Board’s Exhibit 12 (the vote was 8 votes to deny, with two Board members who were absent). [19] See the Board’s Exhibit 13. [20] See the Board’s Exhibit 14. [21] See the Board’s Exhibit 15. [22] See the Board’s Exhibit 16 at 115-116. A.R.S. § 32-1664(F) provides as follows: On determination of reasonable cause the board, or if delegated by the board the executive director, may require a licensee, certificate holder or applicant to undergo at the expense of the licensee, certificate holder or applicant any combination of mental, physical or psychological examinations, assessments or skills evaluations necessary to determine the person's competence or ability to practice safely. These examinations may include bodily fluid testing and other examinations known to detect the presence of alcohol or drugs. If the executive director orders the licensee, applicant or certificate holder to undertake an examination, assessment or evaluation pursuant to this subsection, and the licensee, certificate holder or applicant fails to affirm to the board in writing within fifteen days after receipt of the notice of the order that the licensee, certificate holder or applicant intends to comply with the order, the executive director shall refer the matter to the board to permit the board to determine whether to issue an order pursuant to this subsection. At each regular meeting of the board the executive director shall report to the board data concerning orders issued by the executive director pursuant to this subsection since the last regular meeting of the board and any other data requested by the board. [23] See the Board’s Exhibit 17. [24] The Board’s Exhibit 19 at 131. [25] The Board’s Exhibit 20 at 137. [26] See the Board’s Exhibit 21 at 141. [27] The Board’s Exhibit 22 at 146. [28] See the Board’s Exhibit 18. [29] The Administrative Law Judge sustained the Board’s objections based on relevancy to five of Ms. Putignano exhibits. Ms. Putignano failed to submit the document identified as Exhibit A, the transcript of the May 17, 2012 hearing in Case No. 1222904 before the Illinois Department of Employment Security Appeals Division, apparently regarding Ms. Putignano’s claim for unemployment insurance after 24/7 Able terminated her employment. The six exhibits are included in the electronic record but are not considered in this decision. [30] Reporter’s Transcript 12/5/2015 page 136, l. 6 to page 144, l. 15. [31] Reporter’s Transcript 10/29/2014 at page 38, l. 12, to page 39, l. 14. [32] Reporter’s Transcript 10/29/2014 at page 42, l. 23 to page 44, l. 21. [33] Reporter’s Transcript 12/5/2014 page 119, l. 4 to page 120, l. 20. [34] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [35] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [36] Black’s Law Dictionary at page 1220 (8th ed. 1999). [37] Former A.R.S. § 32-1601(18)(d) defined “unprofessional conduct” to include “[a]ny conduct or practice that is or might be harmful or dangerous to the health of a patient or the public.” [38] A.A.C. R4-19-814(29) provides that “[f]or purposes of [former A.R.S. § 32-1601(18)(d)], a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public and constitutes a basis for disciplinary action on a certificate includes. . . [p]racticing in any other manner that gives the Board reasonable cause to believe that the health of a patient, resident, or the public may be harmed.” [39] Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 469 ¶ 21, 974 P.2d 443, 448 (App. 1998) (quoting Adams v. County of Sacramento, 1 Cal. Rptr. 2d 138, 143-44 (App. 1991)). [40] See also A.R.S. § 13-907(A) (providing that a conviction that has been set aside may be admissible in a subsequent prosecution or considered by an agency in issuing, suspending, or revoking a license). [41] See Russell, 193 Ariz. at 470 ¶ 27, 974 P.2d at 449. [42] State v. Soltero, 205 Ariz. 378, 380 ¶¶ 7 and 8, 71 P.3d 370, 372 (App. 2003) (some citations omitted). [43] The Arizona legislature amended A.R.S. § 32-1601 to change the numbering of the subsection that defines unprofessional conduct at the times Ms. Putignano submitted her application and the Board denied her application. See Laws 2012, Chap. 152, § 1. The definitions in current A.R.S. § 32-1601(22) are identical to the definitions that were set forth in former section A.R.S. § 32-1601(18). [44] A.A.C. R4-19-814(23)(c) further defines a practice or conduct that is or might be harmful or dangerous to the health of a patient or the public for a CNA as follows: Failing to cooperate with the Board during an investigation by: a. Not furnishing in writing a complete explanation of a matter reported under A.R.S. § 32-1664; . . . . c. Not completing and returning a Board-issued questionnaire within days . . . . [45] A.R.S. § 32-1601(22)(j) defines “unprofessional conduct” to include “[v]iolating this chapter or a rule that is adopted by the board pursuant to this chapter.” [46] A.R.S. § 32-1601(22)(i) defines “unprofessional conduct” to include “[f]ailure to comply with a board order.” [47] Laws 1982, Ch. 190, § 1. [48] A.R.S. § 32-1646(A)(4) allows the Board to regulate CNAs by “[d]eny[ing] certification . . . if a nursing assistant commits an act of unprofessional conduct. . . .” [49] A.R.S. § 32-1663(A) concerns disciplinary action and provides that “[i]f an applicant for licensure or certification commits an act of unprofessional conduct, the board, after an investigation, may deny the application or take other disciplinary action.”

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