Can a Mississippi licensing board expunge (erase) records of past discipline against a licensee?

Plain-English summary

Pharmacists who have been disciplined by the Mississippi Board of Pharmacy sometimes want their records cleared, especially after they have completed remediation, kept their license, and worked clean for years. Susan McCoy, the Board's executive director, asked the AG: does the Board have authority to expunge those past disciplinary records, in the sense of erasing them from the Board's files?

The AG's answer was no.

Mississippi law follows a settled rule: public boards have only the powers expressly given to them by statute, or those arising by necessary implication. Powers are construed strictly against the asserting party. The Pharmacy Practice Act (Section 73-21-71 et seq.) gives the Board detailed disciplinary tools: refusal, suspension, reprimand, revocation, restriction of license. It does not give the Board power to expunge past discipline. The AG read this as a deliberate legislative choice; if the legislature had wanted to empower expungement, it would have said so.

The AG drew on the criminal expungement parallel: in criminal law, expungement is purely statutory. Mississippi courts have repeatedly refused to extend expungement to cases the legislature has not specifically authorized. By analogy, an administrative board cannot create its own expungement authority where the legislature has not granted it.

The AG also flagged two practical problems. First, public records retention laws (Section 25-61-1 et seq.) impose duties on the Board to maintain records. A wholesale erasure could violate those laws. Second, disciplinary actions are often reflected in the Board's official minutes; even if the Board could erase a separate disciplinary file, the minutes themselves could not be retroactively redacted.

But the door is not totally closed. The AG noted that Section 73-21-103(2) lets the Board modify a prior order when circumstances change. A pharmacist whose license was suspended can petition for reinstatement; a pharmacist with a restriction can ask for the restriction to be lifted; the Board can change the substance of an old order. What it cannot do is pretend the order never existed.

What this means for you

For Mississippi licensing boards generally

This opinion's reasoning applies broadly, not just to the Pharmacy Board. Most Mississippi professional licensing boards (medicine, nursing, real estate, contractors, etc.) are creatures of statute with similar powers-only-as-expressly-granted limits. If your board's enabling statute does not authorize expungement, you cannot expunge.

When a licensee asks you to expunge a record, the right answers are:
- "We have no statutory authority to erase the record."
- "We can consider modifying the order if circumstances have changed."
- "We can publish a notation that the discipline has been completed."
- "Beyond that, you may need to ask the legislature to provide expungement authority."

For licensees seeking to clear their record

If you have a past disciplinary action on your license:
- The Mississippi Board cannot make it go away.
- You can petition for reinstatement, reduction of restrictions, or other modification under your board's rehabilitative provisions.
- For reputation purposes, you can document your post-discipline track record (continuing education, clean compliance, completion of any required remediation).
- For purposes of national reporting (NPDB for medicine, similar databases), state-board discipline that has been reported cannot be erased even if the state board could erase its own records.

If your board's enabling statute lacks expungement authority, the long-term fix would be a legislative amendment authorizing expungement under specific conditions. That is the only path to true erasure.

For board attorneys and administrators

Build into your standard licensee communications:
- Discipline cannot be expunged. The record is permanent.
- Modification of orders is available under specific statutory provisions (e.g., Section 73-21-103(2) for pharmacy).
- Records retention is governed by state law and federal reporting obligations may also apply.

When responding to records requests for old discipline files, do not redact or destroy historical disciplinary records based on a request to "expunge." That is not a power the board has.

For pharmacists in particular

Section 73-21-103(2) gives you a real tool. If your license was suspended, revoked, or restricted, you can petition the Board at reasonable intervals for:
- Reinstatement
- Modification of the original finding "to reflect any circumstances which have changed sufficiently to warrant such modifications"

That is meaningful relief. It is not erasure, but it can change a "Suspended" order into a "Suspension Lifted with Conditions Met" order. Future readers of the file will see both.

For employers checking pharmacist credentials

When you check a pharmacist's history with the Board, you will see:
- Active discipline (current orders)
- Historical discipline (past orders, even if modified or completed)

Both are part of the licensee's record. Modification or reinstatement does not erase the history.

For Mississippi legislators

If a stakeholder argues that some types of minor discipline (a single reprimand decades ago, a single non-clinical violation that was promptly cured) should be eligible for expungement, the legislative path is open. The 2021 opinion makes clear that boards cannot create that authority on their own; legislative action would be needed. Any expungement statute should specify:
- Which kinds of violations qualify
- How many years post-completion before expungement is available
- What process governs the petition
- What records are reachable (the order itself, internal files, NPDB reporting, the minutes)
- Any consumer-protection caveats (so a serial violator cannot serially expunge)

Common questions

Q: What does "expunge" actually mean in this context?
A: Black's Law Dictionary defines it as "to remove from a record, list, or book; to erase or destroy." The AG read it as wholesale erasure of information. That broad reading is what the Board lacks authority to do.

Q: Can the Board redact some details while keeping the basic record?
A: The AG opinion does not address partial redaction. The Board may have discretion to redact certain confidential personal information from public-facing records under public records law. But true expungement (erasing the existence of the discipline) is what the Board lacks authority to do.

Q: What happens if the licensee successfully completes all conditions and the Board issues a "completion" order?
A: That is fine. The Board can issue an order acknowledging completion, modify the original order to reflect changed circumstances, and update its public-facing licensee profile. The original discipline still exists in the record; it is just paired with the completion notice.

Q: Could the Board's regulations grant expungement authority where the statute does not?
A: The footnote in the opinion was explicit: "This office cannot, by official opinion, interpret regulations promulgated by a state agency." But the underlying principle is that regulations cannot exceed the statutory grant. So if the statute does not authorize expungement, the Board cannot grant itself that power by regulation.

Q: What is the criminal-expungement parallel the AG drew?
A: Mississippi courts have held that expungement of criminal records is "an act of legislative grace" (Polk v. State, 2014). Where the legislature has authorized expungement, courts can grant it; where the legislature has not, courts cannot create their own expungement authority (Caldwell v. State, 1990; Turner v. State, 2004; Hentz v. State, 2014). Same principle for administrative agencies.

Q: Can the licensee sue to get the record expunged anyway?
A: Generally no. Without statutory authority, courts cannot grant expungement of professional discipline either. The licensee's remedy is legislative.

Q: What does Section 73-21-103(2) actually let a pharmacist do?
A: A pharmacist whose license has been suspended, revoked, or restricted can petition the Board at reasonable intervals for reinstatement. After investigation and hearing, the Board may grant or deny the petition, OR modify its original finding to reflect changed circumstances. So a pharmacist can ask for restoration AND for changes to the substance of the original order.

Q: What about the NPDB and other national databases?
A: Some discipline must be reported to national databases. Even if Mississippi could expunge its own state records (which it cannot for pharmacy), the federal database reporting persists separately. Discipline once reported is part of the licensee's national record.

Q: How does this affect a pharmacist applying for licensure in another state?
A: Other states will see Mississippi's reported discipline. The Mississippi Board's inability to expunge means those other states will continue to see the original discipline (perhaps with modifications). The pharmacist should be prepared to explain the discipline and any subsequent rehabilitation in any out-of-state application.

Q: Could a pharmacist negotiate a private settlement that includes the Board agreeing not to disclose past discipline?
A: No. Even if the Board agreed to such a clause (it shouldn't), public records law would override the private agreement. The discipline is on the public record.

Background and statutory framework

Mississippi licensing boards are statutory creations. The legislature creates them in enabling acts, defines their powers, and limits what they can do. Two foundational principles:

Principle 1: Expressed-or-necessarily-implied powers. Public boards have only the authority expressly given by statute or arising by necessary implication. Courts cite Golding v. Salter (1958) for this. The "necessary implication" test is narrow: a power is necessarily implied only when it is essential to carry out an expressly granted power. Convenient additions are not necessarily implied.

Principle 2: Strict construction against the asserted right. Where the statutory grant is ambiguous, courts construe strictly against the agency claiming the power. Hemphill Constr. (2000) cites City of Jackson v. McMurry (1974) for this. So an agency cannot read general "carry out the chapter" language as authorizing every conceivable convenient action.

Applied to the Pharmacy Board: the Pharmacy Practice Act lists the Board's disciplinary tools (suspend, refuse, reprimand, revoke, restrict). It also gives the Board power to modify orders under specific circumstances. Notably absent: any power to expunge.

The AG opinion analogizes to criminal expungement law. Mississippi courts have been emphatic that:
- Expungement is "statutory by nature" (Smith 2012)
- Expungement is "an act of legislative grace" (Polk 2014)
- Courts have "no inherent authority to expunge records" (Turner 2004)
- The legislature has authorized expungement only "in limited cases" (Caldwell 1990)

If the judiciary, which has inherent constitutional powers, lacks inherent power to expunge, then a creature-of-statute administrative board surely cannot have inherent expungement power.

The public records retention angle is also significant. Section 25-61-1 et seq. (Mississippi Public Records Act and related provisions) imposes duties to maintain certain records. The state archives system has retention schedules. Erasing public records can violate those laws.

The AG's reference to the Board's official minutes is a practical observation. Even if the Board could erase its disciplinary case files, the disciplinary action was likely recorded in the minutes (per Mississippi's strong "boards speak through their minutes" rule). Minutes are historical records that cannot be retroactively rewritten.

The Board's modification authority under Section 73-21-103(2) is a real but narrower remedy. It allows the Board to update old orders to reflect changed circumstances. That is meaningful relief for a pharmacist who has rehabilitated. But it is not erasure.

Citations and references

Statutes:
- Miss. Code Ann. § 25-61-1 et seq., Mississippi Public Records Act
- Miss. Code Ann. § 73-21-71 et seq., Mississippi Pharmacy Practice Act
- Miss. Code Ann. § 73-21-81, Board's general authority to administer and enforce
- Miss. Code Ann. § 73-21-97, grounds and procedures for discipline
- Miss. Code Ann. § 73-21-97(1), specific disciplinary actions
- Miss. Code Ann. § 73-21-103, post-discipline procedures
- Miss. Code Ann. § 73-21-103(2), petition for reinstatement and modification

Cases:
- Golding v. Salter, 107 So. 2d 348 (Miss. 1958), public boards have only expressly granted powers
- Hemphill Constr. Co., Inc. v. City of Laurel, 760 So. 2d 720 (Miss. 2000), strict construction against asserted right
- City of Jackson v. McMurry, 288 So. 2d 23 (Miss. 1974), same
- Hentz v. State, 152 So. 3d 1139 (Miss. 2014), expungement is statutory
- Caldwell v. State, 564 So. 2d 1371 (Miss. 1990), legislature authorizes expungement in limited cases
- Ferguson v. Miss. Dep't of Pub. Safety, 278 So. 3d 1155 (Miss. 2019), expungement is legislative
- Polk v. State, 150 So. 3d 967 (Miss. 2014), expungement is legislative grace
- Turner v. State, 876 So. 2d 1056 (Miss. Ct. App. 2004), no inherent power to expunge

Prior AG opinions:
- MS AG Op., Kipp (Oct. 26, 2018), strict construction of agency powers
- MS AG Op., Smith (Aug. 10, 2012), expungements are statutory by nature
- MS AG Op., Seymour (Aug. 30, 2018), AG cannot interpret state agency regulations

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/S.-McCoy-June-22-2021-Expunging-Records-of-Board-Imposed-Disciplinary-Actions.pdf

Original opinion text

June 22, 2021

Ms. Susan McCoy
Executive Director
Mississippi Board of Pharmacy
6360 I-55 North, Suite 400
Jackson, Mississippi 39211

Re: Expunging Records of Board-Imposed Disciplinary Actions

Dear Ms. McCoy:

The Office of the Attorney General has received your request for an official opinion.

Issue Presented

Can the State Board of Pharmacy ("Board") expunge records of disciplinary action imposed by the Board?

Brief Response

No. There is no authority for the Board to expunge records of its prior disciplinary action.

Legal Analysis

"Public boards created by legislative act have only such powers and authority as are expressly conferred by law, or as arise by necessary implication." Golding v. Salter, 107 So. 2d 348, 354 (Miss. 1958). "Such powers are to be construed most strongly against an asserted right, if the right is not clearly given." Hemphill Constr. Co., Inc. v. City of Laurel, 760 So. 2d 720, 723 (Miss. 2000) (citing City of Jackson v. McMurry, 288 So. 2d 23 (Miss. 1974)); MS AG Op., Kipp at *1 (Oct. 26, 2018).

In a telephone conversation with you subsequent to your submittal, you confirmed that your use of the term "expunge" relates to the complete removal of all records of Board disciplinary action, rather than merely modifying a disciplinary order issued by the Board. Black's Law Dictionary defines the term "expunge" as "[t]o remove from a record, list, or book; to erase or destroy." Expunge, Black's Law Dictionary (11th ed. 2019). The term envisions a wholesale erasure of information or documentation.

The Mississippi Pharmacy Practice Act (the "Act") governs the practice of pharmacy in the state of Mississippi and created the Board. Miss. Code Ann. § 73-21-71 et seq. Within the Act, the Mississippi Legislature has set forth, in detailed manner, the process by which licensed pharmacists are to be disciplined by the Board and what events or conduct warrant such discipline. Miss. Code Ann. §§ 73-21-97–103. Section 73-21-97(1) provides that the Board may "refuse to issue or renew, or may suspend, reprimand, revoke or restrict the license, registration or permit" for specific conduct. Subsection (2) further provides: "In lieu of suspension, revocation or restriction of a license as provided for above, the board may warn or reprimand the offending pharmacist." Id. There is no provision within the Act that expressly or impliedly authorizes the Board, either directly or through the Board's regulatory authority set forth in Section 73-21-81[^1], to expunge prior disciplinary action.[^2]

Accordingly, it is the opinion of this office that the Board lacks authority to expunge Board-imposed disciplinary discipline.[^3]

Notably, the Board enjoys broad authority to administer and enforce the provisions of its enabling legislation, including the process of licensee discipline. See Miss. Code Ann. § 73-21-81. The Board is not wholly without power to alter prior Board-imposed discipline, and it may, for example, modify its orders upon a change in circumstances, in accordance with Section 73-21-103(2):

Any person whose license, registration and/or permit has been suspended, revoked or restricted pursuant to this chapter, whether voluntarily or by action of the board, shall have the right to petition the board at reasonable intervals for reinstatement of such license, registration and/or permit . . . Upon investigation and hearing, the board may, in its discretion, grant or deny such petition, or it may modify its original finding to reflect any circumstances which have changed sufficiently to warrant such modifications . . . .

Miss. Code Ann. § 73-21-103(2) (emphasis added).

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General

[^1]: This office cannot, by official opinion, interpret regulations promulgated by a state agency. MS AG Op., Seymour at *1 (Aug. 30, 2018). Accordingly, this opinion does not analyze any of the Board's regulations governing licensee discipline.

[^2]: In the context of expunging criminal records, expungement is traditionally only permissible where explicitly authorized by the Legislature. MS AG Op., Smith at *1 (Aug. 10, 2012) ("Expungements are statutory by nature and relate generally to specific convictions that may be expunged."); Hentz v. State 152 So. 3d 1139, 1140 (Miss. 2014) (quoting Caldwell v. State, 564 So. 2d 1371, 1372 (Miss. 1990)) ("The Mississippi Legislature has 'authorized expungement of criminal offender records in limited cases . . . .'"); Ferguson v. Miss. Dep't of Pub. Safety, 278 So. 3d 1155, 1157 (Miss. 2019) (quoting Polk v. State, 150 So. 3d 967, 970 (Miss. 2014)) ("Expungement from official records [of] all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto, is an altruistic objective for the legislative branch to contemplate and prescribe."); Polk, 150 So. 3d at 968 ("[E]xpungement is an act of legislative grace."). When asked to extend the judicial authority to expunge records beyond those instances specifically allowed by statute, Mississippi courts have declined to do so, holding that there is no inherent authority to expunge records. Turner v. State, 876 So. 2d 1056, 1059 (Miss. Ct. App. 2004) (citing Caldwell, 564 So. 2d at 1373).

[^3]: Additionally, the Board is bound to comply with applicable laws governing the maintaining and retention of public records. See e.g., Miss. Code Ann. § 25-61-1 et seq. Any true expungement of Board records could violate such laws. Moreover, this office is not aware of a way to facilitate the removal of disciplinary action reflected within the Board's official minutes.