Let’s say you are an Illinois doctor, nurse, real estate broker or other licensed professional. Let’s say you have an exemplary and spotless record, with commendations and accolades from superiors, praise from patients or clients, and nothing but exceptional and professional performance over many years of practicing your chosen profession.
Let’s also say that you are a vocal white supremacist.
Being a white supremacist, you took a trip down to Charlottesville, VA a few weeks back to participate in the “Unite the Right” rally that has shaken the nation. While you were chanting and marching with torch in hand – without ever breaking the law – someone snapped a picture of you, put it on the internet and it went viral. One of your patients saw the picture and filed a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR).
Is your professional license now in danger because you have been outed as a white supremacist?
Many participants in the Charlottesville march have since been fired from their jobs after they were identified on social media. In the vast majority of states, private employers are well within their rights to fire an employee for being a white supremacist and/or Trump supporter, expressing other political or social views, or for pretty much any reason other than race, sex, religion, and other protected classes.
But the IDFPR is a governmental body, which means that the First Amendment is implicated in any adverse action based on the exercise of a professional’s free speech rights. But the question of whether and how personal, off-the-clock, and non-criminal conduct can lead to professional license disciplinary action is still tricky.
The laws and rules governing all professions in Illinois contain many specific bases for disciplinary action, almost all of which are based on acts and omissions directly related to their professional responsibilities. But some licensing acts and underlying rules contain vague and ambiguous language which could theoretically be used by IDFPR to institute disciplinary proceedings for private conduct.
For example, a nurse is subject to disciplinary action under Section 70-5(b)(7) of the Illinois Nurse Practice Act for “engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public…”
Note that this section of the Act doesn’t discuss deceiving, defrauding or harming a patient, it talks about “the public.” Is chanting racist slogans “dishonorable” or “unprofessional” conduct likely to “harm” the public? The IDFPR (and most other folks) may see it that way, even if the Board may ultimately be thwarted by the First Amendment if they try to discipline a licensee on that basis. But politics and free speech issues aside, other private conduct can put licensed professionals at risk for disciplinary action.
In Texas, for example, licensing boards have taken a very aggressive approach towards off-the-clock, legal, and harmless conduct which they believe implicates professional “fitness” or “judgment.” As one attorney in Texas described it, using such private conduct as the basis for discipline means that “anything you could do at any point could be considered unprofessional. They really do believe they have the ability to legislate morality.”
In Illinois, all kinds of personal conduct could arguably be scrutinized if a particular investigator or regulator at the IDFPR decides to look at things through that prism. Sexual conduct, controversial parenting techniques, a screaming tirade at a store clerk, internet searches – all legal, all having nothing to do with job performance – they may be fair game.
It would be serious overreach by the IDFPR if they were to take action based on such conduct, but as I have written before, the disciplinary process in Illinois can be manifestly unfair and stacked against you. Experienced and aggressive prosecutors have your license in their sights, and the hearing officer who will determine your fate is bringing their own biases to your case.
Everything we do in life has consequences. While those consequences should not include loss of your professional license for personal and legal conduct, Illinois licensees should be aware that IDFPR may think differently.
Louis Fine: Chicago Professional License Defense Attorney
As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.
Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.