(concurring) — I concur in the majority’s decision to uphold the Department of Health’s (Department) conclusion that Heinmiller violated subsection (22) of the Uniform Disciplinary Act (UDA), by sending threatening and harassing letters to her former client. Heinmiller sent the letters to M.B. at a time when her professional conduct was governed by the UDA. However, in my opinion, it is extremely problematic to discipline Heinmiller for violating subsection (2) of the UDA for allegedly misrepresenting her past conduct on her licensing application.
However, the Department also based its disciplinary action on Heinmiller’s alleged misrepresentation or concealment of a material fact regarding this past conduct. In my view, this decision of the Department should not be upheld because it erroneously applied a constructive knowledge standard when determining that Heinmiller’s failure to disclose her relationship with M.B. constituted a "[m]is-representation or concealment of a material fact in obtaining a license . . . .” ROW 18.130.180(2).
When Heinmiller applied for a counselor license and certification as a social worker, she was asked the following question:
Within the past ten years, have you engaged in any of the conduct described in the Uniform Disciplinary Act, 18.130.180 RCW, excluding the conduct described in 18.130.180(6) and 18.130.180(23)?
Department of Health Review Judge’s Findings of Fact (Dep’t F of F) 1.2, CP at 10. She responded in the negative. Dep’t F of F 1.2, CP at 10. The Department decided that this response constituted a misrepresentation because it was enough that Heinmiller "should have known” that her past conduct constituted an act of "moral turpitude” *612and "sexual contact with a client” within the meaning of the UDA and thus required disclosure. Dep’t C of L 2.42, CP at 64. In my opinion, however, both the plain language of the statute and the dictates of fair play require that applicants such as Heinmiller have actual knowledge of the falsity of a response before they can be disciplined for misrepresentation.
Absent some ambiguity, courts must give words in a statute their common meaning. E.g., Department of Licensing v. Lax, 125 Wn.2d 818, 822, 888 P.2d 1190 (1995). The majority acknowledges that dictionary definitions of "misrepresentation” and "concealment” suggest that the declarant must have actual knowledge of the material fact in question. See Black’s Law Dictionary 1001, 289 (6th ed. 1990). Majority at 602. They also recognize the utility of dictionaries in ascertaining the common meaning of statutory language. See Garrison v. State Nursing Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976). Majority at 602. Nevertheless, the majority concludes that, as applied to this statute, the common meanings of "misrepresentation” and "concealment” are unsatisfactory.
The majority struggles to circumvent the plain meaning of "misrepresentation” and "concealment” apparently out of fear that a constructive knowledge standard is necessary to ensure that the public is protected from professional incompetence and misconduct. This fear is misplaced.
There is no question that the Department can refuse to license a social worker whose prior track record demonstrates that she is not fit to practice her profession. RCW 18.19.050(1). However, when this is done not because of the person’s past conduct, but based on answers to questions, two basic requirements should be met. First, the questions should be directed to objective facts about which *613there can be little doubt. It is far better to ask, "Have you ever been arrested or charged with a crime?” than to ask, "Have you ever engaged in an act of moral turpitude?” Well crafted questions would focus an applicant’s attention on the specific conduct requiring disclosure and would be more likely to elicit responses which will alert officials to the need for an in-depth investigation before granting a license. This would do more to protect the public from unfit professionals than does requiring applicants to reflect on whether their own behavior constitutes an act of "moral turpitude.”
Second, to discipline a person not because she knew, but because she should have known, that her conduct would be deemed by others to constitute an act of "moral turpitude” makes the Department’s action almost Kafkaesque. What constitutes an act of "moral turpitude” is difficult to ascertain with any precision. Asking an applicant to evaluate her past conduct by such an amorphous concept merely sets a trap which can snare even applicants who attempt to be forthright and honest in their responses. It does nothing to protect the public from unfit applicants.
The inequities created by using a constructive knowledge definition for "misrepresentation” are even more sharply demonstrated by analyzing the Department’s determination that Heinmiller "should have known” that M.B. was still her client when they first had sexual contact. There is some evidence to support the Department’s finding that the social worker/client relationship continued, but at the same time there is evidence that the relationship had ended. Heinmiller and M.B. mutually agreed to end their professional relationship before they had sexual contact. At that point, all formal indicia of a professional relationship were terminated and never resumed. There were no further appointments or payment for services and Heinmiller and M.B. no longer held *614themselves out as having a current professional relationship. It is, thus, understandable how, in total good faith, Heinmiller could answer in the negative when asked whether she had sexual contact with a client.1
If the Department wishes to discipline persons who have been issued a license but are later discovered to have engaged in unprofessional conduct, it can promulgate rules to that effect. RCW 18.19.050(1). Disciplining a person under subsection (2) of the UDA, however, should be reserved for those who have knowingly misrepresented information. This would ensure that subsection (2) is not used as a way for the Department to circumvent its own disciplinary rules, but is instead used as a tool for weeding out dishonest applicants.
For the foregoing reasons, I would adhere to the plain meaning of "misrepresentation” or "concealment” and require that applicants have actual knowledge of the falsity of a response before disciplining them under subsection (2) of the UDA.
Johnson and Alexander, JJ., concur with Pekelis, J.
After modification, further reconsideration denied January 31, 1996.
A well written question on the application such as, "Have you ever had sexual contact with a client or former client?”, would have focused Heinmiller’s attention on the type of conduct which required disclosure.