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Prepared by Jeffrey Fortkamp, Esq., Attorney at Graff & McGovern, LPA

Back in 1964, the U.S. Supreme Court reversed an Ohio Supreme Court opinion and held that a film with an explicit love scene was not obscene. In his now famous statement on pornography, Justice Potter Stewart, concluded: “I know it when I see it, and the motion picture involved in this case is not that.” [Emphasis added.][1]

One could argue the phrase “moral turpitude” has the same elusive, subjective definition: I know it when I see it. [2] Objective definitions are necessary and matter, especially when it comes to obtaining or defending your professional license with a state licensing board, which we do at the law firm of Graff & McGovern, LPA.

The phrase “moral turpitude” is found 86 times in the Ohio Revised Code and 92 times in the Ohio Administrative Code. Two notable examples in the Revised Code include: Section 9.79, which prohibits a licensing authority from refusing to issue an initial license to an individual based on, among other things, a nonspecific qualification such as “moral turpitude” or lack of “moral character;”[3] and, Section 4731.22, which allows the Ohio Medical Board to discipline a physician for criminal acts involving moral turpitude.[4]

In the quest for a definition of moral turpitude, an Ohio physician case from the early 2000’s provides a frequently cited legal definition for the phrase.[5] The physician appealed the state medical board’s decision to revoke his license on the grounds that the physician had plead guilty in federal court to a misdemeanor crime involving moral turpitude for failing to file one quarterly employee tax withholding form and payment. The state appeals court reversed the Board’s decision, holding that:

Acts of moral turpitude, although not subject to exact definition, are characterized by “baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general * * *.” This court has before found that moral turpitude is generally defined as an “[a]ct or behavior that gravely violates moral sentiment or accepted moral standards of [the] community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.”[6]

I will pause for a moment to chuckle at the thought that what was considered base, vile, or depraved almost 25 years ago, let alone over 60 years ago in 1964, may not even cause someone to pause, let alone blush today!

Nonetheless, the explanation above helps, but it is arguably still lacking objectivity, especially in administrative law. In Ohio, administrative actions must be based on reliable, probative, and substantial evidence[7] and judicial review allows a court to “appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence, and weight thereof.”[8] So, I do like the additional instruction provided by the above appeals court in a different case a couple years later, in which the court states “…where moral turpitude is disputed, an independent review of the circumstances underlying criminal convictions is necessary to determine if they manifest the requisite lack of social conscience and depravity beyond any established criminal intent.”[9] In other words, the medical board (and the reviewing court, if necessary) must look not only at the elements of the crime, but also the circumstances surrounding the incident to determine if a crime involves moral turpitude.[10]

As noted above, societal norms are ever changing and evolving (some would say devolving), and thus moral turpitude still seems very subjective, especially when someone’s license and livelihood is on the line. You are not alone if you still feel like the standard is still: “I know it when I see it?” The reality is that licensed professionals will always be held to a higher standard by the public and the agencies that regulate them will earnestly protect the public and profession in their care.

Almost all of Ohio’s health-related licensing boards have in their practice act the ability to sanction the licensee for committing a crime involving moral turpitude. The following summary links to many of the health-related Board websites in the state with a link to the regulated profession’s Ohio Revised Code section referencing moral turpitude):

• State Medical Board of Ohio – Section 4731.22 (B)(13)-(14)
• Ohio Board of Nursing – Section 4723.28 (B)(4) and (6)
• Ohio Board of Pharmacy – Section 4729.16 (A)(2)(a)
• Ohio Board of Psychology – Section 4732.17 (A)(1)-(2)
• Ohio State Chiropractic Board – Section 4734.31 (C)(3)-(4)
• Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board – Section 4755.11(A)(1)
• Ohio Counselor, Social Worker, and Marriage and Family Therapist Board – Section 4757.36[11]
• Ohio State Dental Board – Section 4715.30[12]

With all this in mind, as general advice, if you are arrested or charged with a crime:

1. Remember, as a licensed professional, you are held to a higher public standard and will be expected to conduct yourself to that higher standard – before, during, and after that arrest.
2. Don’t go it alone – get legal help to navigate both the criminal matter and defending your license. Sometimes that can be the same person or firm, but more often you will want a competent criminal defense attorney to assist you with your criminal matter and also engage a law firm like Graff & McGovern, LPA to assist you with defending your professional license with a state licensing board.
3. Be proactive. If arrested or charged with a crime, immediately notify your state licensing board that this has happened. If contacted by your state licensing board regarding an arrest or criminal conviction, you can respectfully say you are willing to discuss this matter (good to be cooperative), but state that you would like to have legal counsel participate – like the good folks at the law firm of Graff & McGovern, LPA.

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[1] For a brief summary of the case and link to the full US Supreme Court Decision, visit the ACLU Ohio website (https://www.acluohio.org/cases/jacobellis-v-ohio-378-us-184-1964/); by linking to this website, we are not endorsing the ACLU or its legal work – only that it has a concise summary of the case in which it filed an amicus brief.

[2] While this article is focused on the application of the phrase “crimes involving moral turpitude” in the administrative law setting, there is a parallel debate in immigration law, in which the same phrase has been debated for over one hundred years – see “Crimes Involving Moral Turpitude”: The Constitutional and Persistent Immigration Law Doctrine, Craig S. Lerner, Harvard Journal of Law & Public Policy, Vol. 44 No. 1, p. 72-144.

[3] Ohio Revised Code § 9.79(C)(1)

[4] Ohio Revised Code § 4731.22(13) and (14). The revised code permits the Ohio Medical Board to discipline a physician for, among other reasons, “(13) A plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a misdemeanor involving moral turpitude” or a “(14) Commission of an act involving moral turpitude that constitutes a misdemeanor in this state, regardless of the jurisdiction in which the act was committed” [emphasis added].

[5] Rossiter v. Ohio State Medical Bd., Franklin App. No. 01AP-1252, 2002-Ohio-2017 (Rossiter I). The case was remanded for reconsideration of the penalty. On remand, Rossiter v. State Medical Bd. of Ohio, 155 Ohio App.3d 689 (Rossiter II), the Board imposed the same penalty due to other convictions related to tax matters and the appeals court affirmed.

[6] Rossiter v. Ohio State Medical Bd., Franklin App. No. 01AP-1252, 2002-Ohio-2017 (internal quotes and ellipses omitted). An ironic side note on this matter, the double whammy for the physician is case that he tried to solve his tax situation without professional help and similarly chose to represent himself without counsel in the legal case.

[7] Our Place, Inc. v. Ohio Liquor Control Commission, 63 Ohio St. 570, 589 N.E.2d 1303 (1992).

[8] Eckley v. Ohio State Racing Comm., 10th Dist. Franklin No. 20AP-548, 2023-Ohio-2401, para. 10.

[9] Ansar v. State Med. Bd. of Ohio, 2008-Ohio-3102, at paragraph 30.

[10] Id. at para. 31.

[11] The Revised Code does not reference “crimes of moral turpitude” in the section regarding the discipline of professionals licensed under this section, rather the code does reference felonies (4757.36(C)(5)), misdemeanors committed in the course of practice (4757.36(C)(7)), and fail to comply with codes of ethical conduct established by administrative rule and define unprofessional conduct (4757.36(C)(3)).

[12] The Revised Code does not reference “crimes of moral turpitude” in the section regarding the discipline of dentists, rather the code generally references felons and misdemeanors committed in the course of practice (Section 4715.30(A)(4) and (5)), as well as “Engaging in lewd or immoral conduct in connection with the provision of dental services” (Section 4715.30(A)(7)).