Can the Mississippi Board of Pharmacy erase records of discipline it previously imposed?

Plain-English summary

The Mississippi Board of Pharmacy's executive director asked whether the Board could expunge records of its prior disciplinary actions. She clarified that "expunge" meant complete removal of all such records, rather than modification of a disciplinary order.

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 (Miss. Code Ann. § 73-21-71 et seq.) gives the Board detailed disciplinary tools: refusal, suspension, reprimand, revocation, restriction of license. The AG found no express or implied authority in the Act to expunge its prior disciplinary actions.

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 public-records retention laws: true expungement of Board records could violate them. It said the office was not aware of a way to remove disciplinary actions reflected in the Board's official minutes.

The AG noted that § 73-21-103(2) allows a person whose license, registration, or permit was suspended, revoked, or restricted to petition at reasonable intervals for reinstatement. After investigation and hearing, the Board may grant or deny the petition or modify its original finding if circumstances have changed sufficiently. That authority differs from complete removal of discipline records.

What this means for you

For the Mississippi Board of Pharmacy

The AG applied the general rule that public boards have only powers granted expressly or by necessary implication. It examined the Pharmacy Practice Act's disciplinary provisions and found no authority for this Board to expunge its disciplinary records. The opinion did not examine other licensing boards' statutes.

For licensees with past discipline

Under this opinion, the Board cannot erase a past disciplinary action from its records. The option the AG did identify is a petition under § 73-21-103(2) following suspension, revocation, or restriction of a license, registration, or permit. After investigation and hearing, the Board may "modify its original finding to reflect any circumstances which have changed sufficiently to warrant such modifications."

For board attorneys and administrators

The opinion holds that expungement is outside the Board's authority. It also flags public records retention duties under § 25-61-1 et seq. and says the AG's office is unaware of a way to remove discipline reflected in Board minutes. A footnote adds that the AG cannot interpret the Board's regulations in an official opinion.

For legislators

The AG found no expungement authority in the existing Pharmacy Practice Act. Its criminal-record analogy cites courts declining to extend expungement beyond instances the Legislature authorized.

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 opinion addresses the requested complete removal of all Board disciplinary records. It does not decide whether partial redaction is allowed in a different situation.

Q: Can the Board change an earlier disciplinary finding when circumstances change?
A: Under § 73-21-103(2), someone whose license, registration, or permit was suspended, revoked, or restricted may petition for reinstatement at reasonable intervals. After investigation and hearing, the Board may grant or deny the petition or modify its original finding if circumstances have changed sufficiently. The opinion does not address completion orders or public licensee profiles.

Q: Could the Board's regulations grant expungement authority where the statute does not?
A: The AG found no authority to expunge either directly under the Pharmacy Practice Act or through the Board's regulatory authority under § 73-21-81. A footnote says the office cannot interpret the Board's regulations in an official opinion and did not analyze them.

Q: What is the criminal-expungement parallel the AG drew?
A: The AG's footnote says criminal-record expungement is traditionally permitted only when the Legislature expressly authorizes it, and cites courts declining to recognize an inherent power to expunge criminal records. The AG used that history as an analogy while analyzing this Board's statutory authority.

Q: Did the AG decide whether a court could expunge professional discipline?
A: No. The opinion concerns the Board of Pharmacy's authority. Its footnote discusses judicial expungement of criminal records, but does not decide whether a court could order expungement of professional discipline.

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, but not for erasure.

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: Express or necessarily implied powers. Public boards have only authority expressly given by statute or arising by necessary implication. The AG quoted this rule from Golding v. Salter (1958).

Principle 2: Strict construction against the asserted right. The AG quoted Hemphill Constr. (2000), citing City of Jackson v. McMurry (1974): powers are construed most strongly against an asserted right when it is not clearly given.

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)

The AG cited that criminal-record law as an analogy in its analysis of the Board's authority under the Pharmacy Practice Act.

The public-records point appears in a footnote: the Board must comply with applicable laws governing maintenance and retention of public records, and true expungement could violate them.

The AG added that its office was not aware of a way to remove disciplinary action reflected in the Board's official minutes.

Section 73-21-103(2) permits the Board to modify an original finding after investigation and hearing if circumstances have changed sufficiently. The AG distinguished that authority from expungement of the Board's records.

Citations and references

Statutes:

• Miss. Code Ann. § 25-61-1 et seq., public-records provisions
• 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 73-21-81¹, 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