Opinion
No. CV 01-0511526-S
June 17, 2004
MEMORANDUM OF DECISION
This action is an administrative appeal from a decision of the Connecticut Board of Examiners of Psychologists (Board), dated September 28, 2001, to discipline the plaintiff, John D. Ryan (Plaintiff), a psychologist licensed by the state of Connecticut based upon a finding that the plaintiff had engaged in negligent, incompetent or wrongful conduct as a psychologist in violation of General Statutes § 20-192. The disciplinary proceeding arose out of a complaint filed with the department of public health (Department), by the ex-husband (complainant or M.H.) of a woman (L.H.) with whom the plaintiff allegedly had an inappropriate relationship during and/or after counseling. After investigation, the Department brought a disciplinary action in two counts. In the first count of the Second Amended Statement of Charges, the Department charged the plaintiff as follows.
The complainant and L.H. are not identified to protect their privacy and that of their children, all former patients of Plaintiff. See General Statutes § 52-146c.
The second count alleged improper record keeping as grounds for disciplinary action pursuant to General Statutes § 20-192. On December 1, 2000, after close of the evidence, the Board granted the Plaintiff's Motion to Dismiss count two.
1. John Ryan of Southington . . . is, and has been at all times referenced in this Statement of Charges, the holder of Connecticut psychologist license number 001124.
2. During 1992 through about 1996, respondent was employed as a psychologist in Connecticut.
3. From 1992 through 1996, respondent treated L.H., a/k/a S.W., a/k/a S.H. (hereinafter "L.H.").
4. From 1992 through 1996, respondent treated the family of L.H., including her husband, M.H. and their children, S.H., L.H. and A.H.
5. During and/or after the end of L.H.'s treatment, respondent had an inappropriate personal relationship with L.H.
6. The above described facts constitute grounds for disciplinary action pursuant to the General Statutes of Connecticut § 20-192.
The Board conducted the hearings in accordance with chapter 54 of the General Statutes, the Uniform Administrative Procedure Act (UAPA). On September 28, 2001, after seven days of hearings over nearly two years, the Board found the Department had sustained its burden of proof with regard to count one of the Charges.
The Board is statutorily comprised of five members, three of whom are practicing psychologists, and two of whom are public members. General Statutes § 20-186. The Board hearing this matter was comprised of three psychologists and one member of the public.
In reaching its decision, the Board made the following findings of fact. The plaintiff began treating L.H.'s family in 1991. At that time, L.H.'s family consisted of her husband, M.H., Sr. and their children, a son (S.H.), two daughters and another son. S.H. was the first member of the family to be treated. The plaintiff is an expert on learning disability and attention deficit disorder. In December 1992, the plaintiff began individual therapy with L.H. and continued treating her until August 1996. The plaintiff treated L.H.'s family until May of 1997. The last family members to be treated were S.H. and M.H., Sr.
In the spring of 1996 and 1997, the plaintiff and L.H. took bike rides together. From June to October of 1997, L.H. called the plaintiff to his residence on 80 occasions, some of the phone conversations lasted up to seventy minutes. On Christmas day of 1997, L.H. told her husband that she wanted to call the plaintiff. In January 1999, L.H. and M.H. were divorced. In the spring of 1999, the plaintiff, began a sexual relationship with L.H. In October 1999, the plaintiff and L.H. started a business relationship. At the plaintiff's suggestion, L.H. bought the condominium unit where he was living and continued to live. The condominium is the only investment property that L.H. owns. Since L.H. purchased the property she has rented it to the plaintiff for $500 per month.
While the plaintiff had a professional relationship with L.H. and her family, he also had a personal relationship with L.H. that evolved into a romantic relationship. At all relevant times, the plaintiff was aware of Section 4.07 of the America Psychological Association's (APA) Ethical Principles of Psychologists and Code of Conduct (Ethical Principles), which states that psychologists shall not engage in sexual intimacies with former patients or clients for at least two years after cessation or termination of professional services. Section 1.17 of the APA's Ethical Principles states that psychologists shall refrain from entering a personal, financial or other relationship with a patient which may impair the psychologist's objectivity and which may harm or exploit the other person. The plaintiff engaged in a personal relationship with L.H. while L.H. was in a vulnerable situation because of her divorce circumstances and while L.H. was still in therapy with another psychologist. L.H.'s family was harmed by the divorce.
The Board's Memorandum of Decision indicates that it found by a preponderance of the evidence that the plaintiff violated Sections 4.07 and 1.17 of the APA's Ethical Principles and that the plaintiff likewise violated the standard of care.
The Board further found by a preponderance of the evidence that the plaintiff was negligent and used for judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders.
The Board then ordered immediate revocation of the plaintiff's license.
The order of revocation was stayed on December 14, 2001 by the court, Cohn, J., subject to conditions stated in the parties' stipulation, dated December 11, 2001.
This Appeal followed. On appeal, the plaintiff claims that the Board acted illegally. He raises the following procedural and substantive irregularities. (1) the Board failed to give notice of a charge upon which it based its decision; (2) members of the Board predetermined the outcome before the hearings were complete; (3) members of the Board should have recused themselves; (4) the Board relied on improperly admitted evidence; (5) the plaintiff was not permitted to use treatment records of L.H. and M.H.; (6) excessive participation of the Board in the conduct of the hearing; (7) lack of substantial evidence in the record; (8) harshness of the penalty; and (9) violation of the right of free association. Those claims will be addressed in the order presented.
1. The plaintiff claims the Board based its decision to revoke the plaintiff's license in part upon findings and conclusions not set forth in the Department's Statement of Charges.Before ordering that the plaintiff's license be revoked, the Board stated as follows.
[A]fter considering all the factors the Board concludes that respondent-violated section 4.07 of the APA's Ethical Principles. While respondent claims that he complied with the APA's Ethical Principles by waiting two years before engaging in sexual intercourse with L.H., any such technical compliance is below the standard of care. The APA's Ethical Principles requires a two year waiting period so that the transference phenomenon will dissipate during that time frame.
A preponderance of the evidence also establishes that respondent was negligent and used poor judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders.
The plaintiff argues that the Statement of Charges does not contain allegations which would put him on notice of a claim that he was negligent by treating L.H. in individual therapy or that he exceeded the area of his expertise.
"No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of his license." General Statutes § 4-182(c).
In the present case, the plaintiff was charged with having an inappropriate personal relationship with a patient. The record indicates the following. On December 30, 1999, a First Amended Statement of Charges was filed. The plaintiff filed a Motion for More Definite Statement, which was denied on January 27, 2000. Hearings commenced on January 28, 2000. A Second Amended Statement of Charges was filed on November 13, 2000, which made a technical correction. Throughout the trial, the plaintiff's counsel objected when a line of questioning went beyond the claims set forth in the Statement of Charges. At no time did the Department seek to amend the Statement of Charges to add a charge that the plaintiff was negligent by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders or that he practiced in an area of psychology for which he is not qualified. Rather, the Department's attorney maintained the position that "[w]hat we're trying to prove is exactly what's stated in the Statement of Charges, an inappropriate relationship."
Reasonable notice of an administrative hearing requires that a detailed statement of the matters asserted be provided to the person against whom action is sought. If the original statement is insufficient to provide notice, a more definite and detailed statement is to be furnished upon application. General Statutes § 4-177(b)(4).
At one point in the hearing, the following colloquy occurred:
ATTORNEY FOR THE BOARD: I would like to ask the Department, the allegation in count one is that the Respondent had an inappropriate personal relationship with L.H. I have allowed you a little latitude here, but I'm really not clear as to how the Respondent is put on notice if you're trying to establish what I think you're trying to establish, which is that perhaps he should not have seen her individually. I'm not sure how that's included in this Statement of Charges.
ATTORNEY FOR THE DEPARTMENT: Individual therapy, if it did occur during that point in time, was an indication, according to the Department's allegations, of the beginning of an inappropriate relationship during therapy. So during individual therapy sessions, the inappropriate relationship began.
In Wasfi v. Dept. of Public Health, 60 Conn. App. 775, 777, 761 A.2d 257 (2000), a claim of lack of notice was made. The court stated that the department's statement of charges "put the plaintiff on notice that the Board would investigate his deviation from the standard of care when he mis-diagnosed and misrepresented the dog's injuries and when he misrepresented the treatment of those injuries." Wasfi v. Dept. of Public Health, supra, 785. Although the plaintiff in Wasfi claimed that the statement of charges did not put him on notice that the Board would consider the appropriateness of the gauge of the suturing material used in the treatment of the dog, the court disagreed and held that the plaintiff was on notice that the Board, consisting of a majority of experts, would use its own expertise in determining whether the plaintiff's alleged acts conformed to the standard of care. Id., 786.
Similarly, Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 533, 560 A.2d 403 (1989), the respondent chiropractor claimed that the charges against him lacked the specificity required by the state and federal due process clauses and by the notice provision of the UAPA. In the first count, the charge stated a failure to diagnose properly. Levinson v. Board of Chiropractic Examiners, supra, 510-11. The board found that Levinson negligently failed to diagnose or treat the patient properly. Id., 514-15. The court acknowledged that the question of treatment was not included in the charge, but that the finding of negligent treatment was "mere surplusage." Id., 536. The court stated that the essential determination is whether there is "a variance between the charges made and conclusions reached by the board which is sufficiently substantial to violate the rights of [the] plaintiff." Id., 535.
In Jutkowitz v. Department of Social Services, 220 Conn. 86, 93, 596 A.2d 374 (1991), the court rejected a claim of insufficient notice and found Jutkowitz was fairly apprized of the facts or conduct that served as the basis for the department's charge where the language in the count informed him that the charge arose from his prescribing coccygeal-meningeal manipulation and that his conduct was alleged to be in violation of certain provisions of the General Statutes. Although the court noted that the legal basis for the allegation "could have been expressed in clearer terms, "it concluded that "the notice provided was sufficient to satisfy the requirements of due process." Jutkowitz v. Department of Social Services, supra, 93. The court went on to state: "Even if we were to conclude that the . . . count failed to provide adequate notice to the plaintiff, our disposition of this issue would be the same because the plaintiff did not suffer material prejudice as a result of this alleged procedural deficiency . . . The plaintiff introduced evidence to attempt to show that the coccygeal-meningeal manipulation was taught at a chiropractic college and that the use or prescription of this procedure would not constitute incompetent practice. The plaintiff, therefore, cannot now complain that his defense was prejudiced by any alleged deficiency in notice." (Citations omitted.) Id., 94.
In Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 536-37, 79 A.2d 350 (1951), the state commissioner of health charged a physician with improper conduct and after a protracted hearing the board found him guilty of five charges and recommended that his license be revoked. The question on appeal was whether the board acted illegally. Adam v. Connecticut Medical Examining Board, supra, 537. In sustaining the appeal, the Supreme Court concluded that the plaintiff physician was subjected to a hybrid accusation not found within the then applicable statute. Id., 538-39. "He was charged, in part, with `wanton negligence' in the practice of his profession." Id., 538. The court stated that "[t]his charge finds no sanction whatsoever in the statute." Id. The court further concluded that "the findings of guilt based on negligence, characterized as gross, wanton or otherwise, were unlawful. In using them to reach a conclusion of guilt on the charge of unprofessional conduct, the board acted illegally." Id., 540.
The Adam court stated: "A complaint by the department of health need not be phrased with the precision of a well-drafted pleading. It must, however, be based on the statute. Nor need a hearing before the board be marked with the formality with which a judicial trial is conducted. It is sufficient if he who is under charges has a reasonable opportunity to hear and be heard on them and if the proceedings are conducted in a fair and impartial manner . . . The informalities to which we refer must not be permitted, however, to prejudice the rights of parties. If this occurs, the court is available to rectify the wrong." (Citations omitted.) Id., 540.
In Wasfi v. Dept. of Public Health, supra, 60 Conn. App. 775, and Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. 508, the allegations of the statement of charges concerned mis-diagnosis, an aspect of service rendered to a patient within the realm of the patient-doctor relationship. In Jutkowitz v. Department of Social Services, supra, 220 Conn. 86, the allegations made specific reference to the challenged treatment procedure. In those cases there was not "a variance between the charges made and conclusions reached by the board which is sufficiently substantial to violate the rights of either plaintiff." Levinson v. Board of Chiropractic Examiners, supra, 535. By contrast, a charge of negligent treatment and practice in an area for which one is not qualified is substantially at variance with a charge of an inappropriate personal or sexual relationship.
In this case, the applicable statute, General Statutes § 20-192, specifically provides as a ground for the imposition of a sanction against a psychologist license holder that he "practiced in an area of psychology for which he is not qualified." The Board's finding that the "respondent was negligent and used poor judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders" is akin to the hybrid findings in Adam v. Connecticut Medical Examining Board, supra, 137 Conn. 535. Here, the plaintiff was neither charged with the statutory ground of practicing in an area of psychology for which he is not qualified nor provided with a statement of facts to support finding him negligent for doing so. The Statement of Charges simply does not provide notice of such a claim and an opportunity to defend such a claim. As such it does not comport with due process requirements or the requirements of General Statutes § 4-182(c).
General Statutes § 20-192 provides in relevant part:
The board may take any action set forth in section 19a-17, if the license holder: Has been convicted of a felony; has been found by the board to have employed fraud or deceit in obtaining his license or in the course of any professional activity, to have violated any provision of this chapter or any regulation adopted hereunder or to have acted negligently, incompetently or wrongfully in the conduct of his profession; practiced in an area of psychology for which he is not qualified; is suffering from physical or mental illness, emotional disorder or loss of motor skill, including but not limited to, deterioration through the aging process or is suffering from the abuse or excessive use of drugs, including alcohol, narcotics or chemicals.
(Emphasis added.)
General Statutes 4-182(c) provides in pertinent part: No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.
In Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. 534, the Supreme Court noted that the notice requirements in § 4-182(c) are stricter than those in General Statutes § 4-177(b) because the former proceeding involves a "more compelling private interest." When the potential result of an agency proceeding is the suspension of a license upon which a person depends in earning his or her living, "due process requires that the notice given must advise the party of the facts or conduct alleged to be in violation of the law and must fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law." Levinson v. Board of Chiropractic Examiners, supra, 535, quoting Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 47, 327 A.2d 588 (1973).
The Department argues, however, that the Board found it had sustained its burden of proof with regard to count one based on its finding that the plaintiff engaged "in personal, sexual and business relationships while transference phenomenon was still effective." Therefore, the Department argues the Board's statement that "the respondent was negligent and used poor judgment by treating [L.H.] in individual therapy when his expertise is in learning disabilities and attention deficit disorders" was not critical to the Board's finding of a violation of the standard of care. It was, as in Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. 536, "mere surplusage."
The Department contends then that the plaintiff cannot demonstrate that he was prejudiced in any way by the Board's consideration of this issue as there is ample evidence in the record to support the Board's overall conclusion that the plaintiff engaged in an inappropriate relationship with a former patient without consideration of whether he practiced outside of his area of expertise. Even if that is so, the Board expressly stated in its Memorandum of Decision that it ordered the license revocation "based upon the record in this case, the above findings of fact and the conclusions of law," which included the conclusion that the plaintiff was "negligent and used poor judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders." The plaintiff in this case, unlike the plaintiff in Jutkowitz v. Department of Social Services, supra, 220 Conn. 86, did not have an opportunity to be heard and to defend that charge or its inclusion in the findings and conclusions that underlie the Board's imposition of the sanction of revocation. Therein lies the prejudice and the problem. See generally Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles, supra, 165 Conn. 44. Thus, it cannot be determined how much, if any, impact the conclusion by the board that the plaintiff was negligent in treating beyond his expertise had on its decision to revoke the plaintiff's license. See Murphy v. Berlin Board of Education, 167 Conn. 368, 377, 355 A.2d 265 (1974) ("[w]e cannot determine from the record whether the board would indeed have made the same decision had it considered only evidence relevant to the complaint of which [the plaintiff] in fact had proper notice").
The decision of the Board did not conform to the requirements of due process and § 4-182(c) because the plaintiff did not have notice of that charge. Accordingly, the court sustains the appeal. Before determining, however, the nature of relief in this appeal, pursuant to General Statutes § 4-183(k), the court must first address the other claims of error raised in the appeal.
General Statutes § 4-183(k) provides: "If a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action, or orders the agency to take such action as may be necessary to effect the particular action."
2. The plaintiff claims board members may have improperly predetermined the outcome before the hearings were completed.
The only "evidence" pointed to by the plaintiff in support of this charge is that one of the professional board members, Dr. Liza Thayer, stated on two occasions that the APA's Ethical Principles state that "at least two years" must pass after termination of therapy before a sexual relationship between a therapist and a former patient may ever occur. The plaintiff also points to Dr. Thayer's statement that if twenty years had passed there would never have been a hearing and claims that this statement implied that Dr. Thayer and "perhaps other members of the Board had predetermined the question of an ethical violation."
The plaintiff's allegations of predetermination are without merit. The plaintiff cites Marmah, Inc. v. Greenwich, 176 Conn. 116, 405 A.2d 63 (1978), a case that is distinguishable on its facts. In Marmah, Inc., the zoning board delayed hearing a site plan application several times, and, during the period of continuance, orchestrated a change in the zoning regulations that would preclude the approval of the plan. Marmah, Inc. v. Greenwich, supra, 122-23. The Court found support in this record for the conclusion that the commission acted with predisposition and predetermination. Id., 123-24.
In contrast, in the case before the Board, Dr. Thayer's comments do not indicate predetermination but rather her knowledge of the APA's Ethical Principles in play — Sections 4.01 and 1.17.
Furthermore, the fact that Dr. Thayer and/or other members of the Board held an opinion on the applicable standard of care is not grounds for disqualification. In Breiner v. State Dental Commission, 57 Conn. App. 700, 705, 750 A.2d 1111 (2000), Breiner claimed that opinions on a standard of practice expressed by two expert members of the Dental Commission made the hearing an exercise in futility. The court disagreed: "Absent countervailing proof, members of administrative bodies acting in an adjudicative capacity are presumed to be unbiased. Jutkowitz v. Dept. of Health Services, [ supra, 220 Conn. 100]. `[T]o prove bias as a ground for disqualification, the plaintiff must show more than an adjudicator's announced previous position about law or policy . . . He must make a showing that the adjudicator has prejudged adjudicative facts that are in dispute.' (Citations omitted; emphasis added; internal quotation marks omitted.) Clisham v. Board of Police Commissioners, [ 223 Conn. 354, 362, 613 A.2d 254 (1992).] The bias must be so prevalent that it is `too high to be constitutionally tolerable.' (Internal quotation marks omitted.) Id." Breiner v. State Dental Commission, supra, 705-06. The court also stated that "[e]very member of a profession is presumed to know the governing standards of practice." Id., 708, citing Altholtz v. Dental Commission, 4 Conn. App. 301, 315, 493 A.2d 917 (1985). Here, Dr. Thayer's statements do not indicate any prejudgment of the facts of this case. They simply reflect her knowledge of the applicable APA code provisions.
Finally, the plaintiff waived any right to complain about alleged predetermination by one or more members of the Board because he failed to raise the issue at the hearing and ask for their recusal. "[T]he failure to raise a procedural claim or the failure to utilize a remedy available to cure a procedural defect can constitute a waiver of the right to object to the alleged defect." Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 462, 767 A.2d 732 (2001).
3. The plaintiff claims two Board members may have possessed knowledge about the plaintiff or this case from sources outside the context of the administrative hearing and should have been recused.First, the plaintiff claims that Dr. Joseph DeVito, one of the psychologists on the Board, should have recused himself because he had special insight or knowledge with regard to the plaintiff's previous employment. This claim is based on Dr. DeVito's question to the plaintiff whether he had been supervised by a person named Lynn Pico almost twenty years earlier. The plaintiff points to nothing else in the record or in the decision that would support his claim that Dr. DeVito's inquiry about a possible common acquaintance was used in any manner in the decision making of the four member Board.
Furthermore, the plaintiff waived the right to complain about any purported defect in the underlying proceeding. The plaintiff had every opportunity at the hearing to ask Dr. DeVito why he was asking about Lynn Pico and to make a motion to recuse Dr. DeVito if there was an issue of actual bias based on his responses. See Henderson v. Department of Motor Vehicles, 202 Conn. 453, 521 A.2d 1040 (1987) (dismissing an appeal based on a claim of ex parte communication for failure to use remedies available to him before the agency).
The plaintiff, during the pendency of this appeal, issued a production request and a notice of deposition for Dr. DeVito. The Department's objection was sustained.
A more perplexing claim concerns the disqualification of Dr. Thayer. The plaintiff claims that Dr. Thayer should have recused herself because she was associated with Dr. Jeffrey Zimmerman, who provided counseling to M.H. and L.H. during the course of and in connection with their divorce. The record discloses that three days prior to the first hearing before the Board, counsel for the plaintiff wrote to the board liaison stating that she had come across an agreement between the complainant, M.H., and his wife, L.H., to attend counseling with Dr. Thayer and that if Dr. Thayer did provide counseling to the complainant it presented a problem with her sitting on this matter. A copy of the agreement was attached. At the beginning of the hearing before the Board, Dr. Thayer reviewed the letter of the plaintiff's counsel and the attached agreement and was asked if she had provided counseling to the complainant and L.H. Dr. Thayer responded, "I have never provided any counseling. We could stop there."
The defendant claims that the plaintiff waived his rights to now claim that Dr. Thayer should have been recused because he did not make further inquiry in the matter, especially of L.H., who later appeared as a witness before the Board. The plaintiff claims that he had no reason to question L.H. further on the subject during her testimony at the hearings because he relied on the assertion by Dr. Thayer. The plaintiff claims that it was in preparing this appeal that he learned of the affiliation between Dr. Thayer and Dr. Zimmerman.
On December 4, 2002, and on January 13, 2003, the court heard evidence outside the record in accordance with a motion submitted by the plaintiff. Board member Dr. Thayer and L.H. gave testimony to the court. Based on the evidence taken outside the record, the court finds that Dr. Thayer, a professional member of the board, was contacted by attorney Jennifer Davis with a referral of M.H. and L.H. to the Peace Program, a counseling service conducted by Dr. Thayer and her partner, Dr. Zimmerman, for couples going through divorce. Attorney Davis mentioned that the referral might involve issues that could come before the Board. At that point, Dr. Thayer stopped the referral and told the attorney to call Dr. Zimmerman. Not all referrals follow up and participate in the Peace Program. Attorney Davis did not tell Dr. Thayer the names of the couple being referred or the name of the person or persons who might be involved in the issues that could come before the Board. It was the practice of Dr. Zimmerman not to share any information with Dr. Thayer about a case that had some potential to come before the licensing board. Dr. Thayer never received any information from Dr. Zimmerman or his files or anyone else in her practice regarding the referral or the persons or family members involved in the plaintiff's proceeding.
General Statutes § 4-183(i) provides: "The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the agency are not shown in the record or if facts necessary to establish aggrievement are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs."
The plaintiff sought to supplement the record in this appeal by submitting an affidavit of L.H. That motion was denied, however, the plaintiff was granted leave to supplement the record with testimony of L.H. A hearing was held before the court, Levine, J., at which both L.H. and Dr. Thayer appeared and testified. Subsequently, this appeal was transferred to the undersigned. The parties have agreed that the matter of Dr. Thayer's recusal could be determined by the undersigned on the transcripts and in connection with the hearing on the merits of the appeal.
On January 28, 2000, at the beginning of the hearing before the Board, when Dr. Thayer was shown the letter of the plaintiff's counsel and the referral agreement, there was no reference in the materials indicating the identity of either attorney Davis or the complainant. When Dr. Thayer stated that she had not provided counseling, the plaintiff's counsel did not object further to Dr. Thayer's participation.
The referral call was made around October 19, 1999. The hearings before the Board began on January 28, 2000, and the letter raising the questions of the referral was shown to Dr. Thayer on that date. At the time of her answer that she never provided counseling, there is no indication in the record that Dr. Thayer had any knowledge that M.H. and L.H. were being counseled by Dr. Zimmerman. Subsequently, probably after M.H. and L.H. had testified before the Board, Dr. Thayer saw both of them in the office and recognized them: M.H. and L.H. attended about 22 to 25 sessions with Dr. Zimmerman from November of 1999 to May of 2001. M.H. and L.H. attended numerous counseling sessions with Dr. Zimmerman in offices shared by Dr. Thayer and Dr. Zimmerman. Dr. Thayer's salary is based on payments to the practice. Counseling ended before the Board rendered its decision on September 28, 2001. Dr. Thayer did not disclose to the Board or to counsel that M.H. and L.H. were being counseled by Dr. Zimmerman, her co-founder and partner in the Peace Program, or that she had observed them in her office because she did not want to reveal confidential information about them. Nor did Dr. Thayer recuse herself from hearing and deliberating in this matter.
The plaintiff claims that Dr. Thayer should have recused herself or been disqualified. She asserts that the standard for recusal of an administrative adjudication is "the appearance of impropriety." This is not the standard established by the Connecticut Supreme Court. "It is presumed that members of administrative boards acting in an adjudicative capacity are unbiased. Petrowski v. Norwich Free Academy, 199 Conn. 231, 236, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S.Ct. 42, 93 L.Ed.2d 5 (1986); see Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). The party who contends that an adjudicator is biased bears the burden of proving the disqualifying interest. Schweiker v. McClure, 456 U.S. 188, 196, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982); Petrowski v. Norwich Free Academy, supra." Jutkowitz v. Department of Social Services, supra, 220 Conn. 100. "The applicable due process standards for disqualification of administrative adjudicators do not rise to the height of those prescribed for judicial disqualification . . . The canons of judicial ethics go far toward cloistering those who become judges, the ultimate arbiters of constitutional and statutory rights, from all extraneous influences that could even remotely be deemed to affect their decisions. Such a rarefied atmosphere of impartiality cannot practically be achieved where the persons acting as administrative adjudicators, whose decisions are normally subject to judicial review, often have other employment or associations in the community they serve. It would be difficult to find competent people willing to serve, commonly without recompense, upon the numerous boards and commissions in this state if any connection with such agencies, however remotely related to the matters they are called upon to decide, were deemed to disqualify them. Neither the federal courts nor this court require a standard so difficult to implement as a prerequisite of due process of law for administrative adjudication." (Citation omitted.) Id.
In Jutkowitz v. Department of Social Services, supra, 220 Conn. 99, the plaintiff contended that one of the Board members should have recused himself because one of the plaintiff's patients whose treatment gave rise to the disciplinary action consulted a member of the same chiropractic group as the Board member. The consultant chiropractor, Lawlor, was instrumental in the filing of the charges against the plaintiff. Id., 99-100. The court concluded that the "tenuous relationship" between the chiropractors did not require recusal of the Board member. Id., 100.
In this case, the defendant argues that the plaintiff's charge of bias against Dr. Thayer because of her alleged association with a psychologist who may have counseled plaintiff's former patient and her ex-husband is similarly far too tenuous to satisfy the "actual bias" standard. In Jutkowitz, the evidence in the record supporting the conclusion that the plaintiff's rights to a fair trial and due process were not violated by Passero's refusal to recuse himself showed that Passero and Lawlor were both members of a service corporation that paid the expenses of operating the building where its five chiropractor members worked. Id., 101. Each of these chiropractors acted as independent subcontractors and paid rent to the corporation to cover the cost of maintaining the facility. Id. Each had separate practices and collected their own fees. Id. The group was not a professional corporation, and there was no sharing of income or funds between the members. Id. Passero never discussed this case with Lawlor and he first learned of Lawlor's involvement in this matter at the initial hearing. Id.
The evidence in the record in this case, the facts found by the Board and the nature of the charges against the plaintiff make this situation far less tenuous than, simply, as characterized by the Department, an "alleged association with a psychologist who may have counseled plaintiff's former patient and her ex-husband" Nor is this question of recusal simply one of whether there was direct or indirect pecuniary gain to Dr. Thayer as a result of M.H. and L.H.'s counseling with Dr. Zimmerman in the Peace Program. As a co-founder of the Peace Program, Dr. Thayer knew when she observed M.H. and L.H. in her office that they were participating in a program established to deal with high conflict divorces. At that point. Dr. Thayer became privy to information directly related to the claims and charges in the proceeding before her. Pivotal claims findings in the proceeding concerned harm to the family and the vulnerability of L.H. as a consequence of an acrimonious divorce. Thus, the claim of disqualification and recusal is far from tenuous in this case. That said, however, the plaintiff has failed to sustain his burden to prove under the standard set forth above that he was prejudiced when the decision was rendered in this matter. Dr. Thayer testified and I credit her testimony that she and Dr. Zimmerman did not discuss M.H. and L.H., that she did not have access to Dr. Zimmerman's files and that she did not tell the Board that her partner treated M.H. and L.H. because of a concern over confidentiality. (Although she did have the option of recusal without stating a reason.) Moreover, the fact that Dr. Thayer felt that she could not recuse herself because it would lead to a breach of confidentiality persuades me that she did not reveal to the Board anything about M.H. and L.H's counseling with Dr. Zimmermann in the Peace Program. I also credit her testimony that she decided the case against the plaintiff solely on the evidence. The plaintiff has failed to prove that Dr. Thayer "had a disqualifying interest sufficient to overcome the presumption of honesty and integrity . . ." Petrowski v. Norwich Free Academy, supra, 199 Conn. 238.
5. The plaintiff claims the Board accepted and relied upon improperly submitted evidence.
It is the plaintiff's position that if the sexual contact occurred more than two years following termination of therapy then there was no violation of the standard of care. The plaintiff contends, therefore, that only evidence from the two-year time period after the end of therapy is relevant to the Board's inquiry into the ethical violation and that the Board erred in admitting a copy of a statutory warranty deed showing that in October of 1999, L.H. purchased the condominium in which the plaintiff was living.
The plaintiff's argument ignores subpart (b) of Section 4.07 of the APA Guidelines, which directs an assessment of factors to aid in a determination of whether a sexual relationship between a therapist and a former patient after the two years of termination of therapy was exploitive. The Board's acceptance of evidence of a financial transaction that occurred only several months after the beginning of the sexual relationship was relevant to the Board's assessment of whether this relationship was exploitive.
The plaintiff also argues that the Board should have excluded the testimony of a former neighbor of L.H. based on a determination that it was irrelevant before it even heard the testimony. This argument is again based on the plaintiff's position that any evidence after the two-year period is irrelevant to a finding of a violation of the APA's Ethical Principles. Although the UAPA, General Statutes § 4-178(1), provides that an agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence, there is often no way to determine before the testimony is given that it will, in toto, be irrelevant. In the case of L.H.'s former neighbor, it was clear from his testimony on cross-examination that he was unable to identify the plaintiff from a photograph. The Board apparently assessed the weight to be given to that testimony as it made no reference whatsoever to it in its decision. The plaintiff has not shown he was harmed.
6. The plaintiff claims he was hampered in his defense because he was denied access to the treatment records of M.H. and L.H.
The plaintiff claims he was unable to rebut M.H.'s testimony regarding the date when treatment terminated because L.H.'s therapy records were not released. Although L.H. refused to authorize release of her records, she appeared before the Board and testified as to when her treatment with the plaintiff ended. Furthermore, although the plaintiff claims it was impossible to defend himself because he could not state conclusively when the last date of treatment with L.H. occurred without his records, the Board, in its finding, credited the plaintiff's testimony about when L.H.'s therapy ended. The plaintiff was not harmed.
The plaintiff claims he was hampered in his ability to cross-examine the complainant, M.H., because he was denied access to psychiatric records of M.H. The record indicates that during his testimony M.H. was asked by the plaintiff's counsel if he would provide an authorization to allow her to take a look at those records and he responded "yes." The plaintiff does not claim that he tried to subpoena, the records and was refused. He cannot claim harm.
7. Plaintiff claims the Board did not remain neutral during the course of the hearings in this matter.
The plaintiff claims the Board allowed an additional direct examination of him by the Department after it had rested. The plaintiff also claims the Board took on the role of the Department and its questioning was in the nature of cross-examination of several witnesses.
The Board's actions at the hearing were in compliance with the UAPA. The UAPA provides at General Statutes § 4-177c(a): "In a contested case, each party and the agency conducting the proceeding shall be afforded the opportunity (1) to inspect and copy relevant and material records, papers and documents not in the possession of the party or such agency, except as otherwise provided by federal law or any other provision of the general statutes, and (2) at a hearing, to respond, to cross-examine other parties, intervenors, and witnesses, and to present evidence and argument on all issues involved." (Emphasis added.) General Statutes § 4-178(5) provides that " a party and such agency may conduct cross-examinations required for a full and true disclosure of the facts. . ." (Emphasis added.)
An examination of the transcripts of the hearing demonstrate that the Board did engage in a probing examination of all of the witnesses in the case on whether there was a violation of the APA Guideline regarding sexual relations with a former patient, the ultimate issue in the case.
The Board also allowed the Department to ask questions on redirect that it failed to ask the plaintiff on direct. This ruling by the Board did not prejudice the plaintiff and allowed the Board to have a fully developed record before it on which to make its determination. Furthermore, under the UAPA provisions cited above, the Board could have sustained the objection to further questioning by the Department's attorney and then the Board itself could have asked the plaintiff the questions the Department neglected to ask in order to fully develop the record. The plaintiff was not prejudiced by this procedure as he was allowed to respond to the issues raised by the additional questioning.
When an agency acts in a quasi-judicial capacity, proceedings before it are "necessarily informal. It was not necessary for it to follow technical rules of pleading and procedure . . . The test of the action of the [agency] is whether the plaintiff had a reasonable opportunity to hear and to be heard upon the charges preferred against him and whether the proceedings were conducted in a fair and impartial manner." (Citations omitted.) Conley v. Board of Education, 143 Conn. 488, 494, 123 A.2d 747 (1956).
8. The plaintiff claims that there is not substantial evidence in the record to support the Board's decision to revoke the plaintiff's license.
General Statutes § 4-183(j) provides that the reviewing court "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." The credibility of witnesses and the determination of issues of fact are matters within the province of the administrative agency. Fishbein v. Kozlowski, 48 Conn. App. 552, 554-55, 711 A.2d 733 (1998), aff'd, 252 Conn. 38, 743 A.2d 1110 (1999). With regard to questions of fact, it is not the function of the trial court to retry the case or substitute its judgment for that of the administrative agency. Id., 555.
The appropriate inquiry for a reviewing court is whether the agency's decision is supported by substantial evidence. Pet v. Department of Public Health, 228 Conn. 651, 667-68, 638 A.2d 6 (1994). The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can reasonably be inferred. Id., 668.
A review of the record before the Board demonstrates that the Board's decision is supported by substantial evidence. The findings of fact are set forth above and there is substantial evidence to support those findings. Several witnesses testified, including the plaintiff, M.H., L.H., the plaintiff's therapist and expert, and an investigator hired by M.H. "In determining whether an administrative finding is supported by `substantial evidence,' a court must defer to the agency's right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part." Briggs v. State Employees Retirement Commission, 210 Conn. 214, 217, 554 A.2d 292 (1989).
A review of the record and the conclusions reached by the Board indicates that it relied on at least part of the testimony of most of the witnesses. It determined that respondent violated the standard of care by engaging in a sexual relationship with L.H. and it considered all the factors enumerated in Section 4.07 of the APA's Ethical Principles, to wit: (1) the amount of time that has passed since therapy; (2) the nature and duration of the therapy; (3) the circumstances of termination; (4) the patient's personal history; (5) the patient's current mental status; (6) the likelihood of adverse impact on the patient and others; and (7) any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post-termination sexual or romantic relationship with the patient.
At the hearing relating to the question of the disqualification/recusal of Dr. Thayer, Judge Levine raised the question and solicited response from the parties as to whether the APA's Ethical Principles of Psychologists and Code of Conduct are incorporated by reference, by statute or regulation, into the provisions of section 20-192, or whether there is other authority for their incorporation. In response, the plaintiff now takes the position that the Code does not constitute evidence of the standard of practice because it has not been incorporated, that he was not given notice by the Board of its use as the standard of practice. This court declines to review these claims for the reason that the record is replete with instances wherein — throughout the proceedings before the Board — both the plaintiff and the Department have relied upon and pointed to the APA's Ethical Principles of Psychologists and Code of Conduct as evidence of the standard of practice. The Department's and the plaintiff's interpretation of the APA provisions may conflict but there was no conflict as to their relevance and applicability in assessing the conduct of the plaintiff. "A party to an administrative proceeding cannot be allowed to participate fully at hearings and then, on appeal, raise claims that were not asserted before the [agency] . . . [Parties will not be permitted] to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial." (Internal quotation marks omitted.) Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 612 A.2d 739 (1992).
In addition to the testimony of the witnesses, the Board relied on its own expertise, as it is entitled to do, in concluding that because the plaintiff's personal relationship with L.H. commenced prior to the termination of therapy and continued until the date on which they had sexual intercourse, the transference phenomenon was an active factor in their relationship at all times. And that although formal therapy terminated approximately two years before the sexual relationship commenced, in fact, no time elapsed between the termination of the therapeutic relationship and the commencement of a personal relationship.
Additionally, there is support for the findings that L.H. was vulnerable, was in the process of a difficult divorce, and was still in individual therapy with another psychologist and that the plaintiff treated L.H. and her family, L.H. underwent a traumatic divorce, L.H. began a personal relationship with respondent that culminated in a sexual relationship, and L.H.'s family was harmed by the divorce. The Board's decision that the plaintiff violated the applicable standard of care is based on substantial evidence in the record and upon the expertise of the Board.
The plaintiffs claim that the Board is not qualified to utilize its expertise on a standard of care issue in the profession of psychology is not supported by the UAPA or applicable case law. General Statutes § 4-178 authorizes an agency to evaluate evidence in light of its "experience, technical competence, and specialized knowledge . . ." "Administrative boards comprised of at least a majority of member experts in their field, as this Board was, are presumed `competent to determine the issues upon the basis of their knowledge and experience'; Jaffe v. State Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949); and are entitled to decide the issues before them without expert testimony." Wasfi v. Dept. of Public Health, supra, 60 Conn. App. 783; see also Jutkowitz v. Department of Health Services, supra, 220 Conn. 111; Pet v. Department of Health Services, supra, 228 Conn. 666.
8. The plaintiff claims his right to freedom of association has been violated.
The plaintiff claims that is so because the Board based its decision in part upon the finding that he and L.H. took bike rides together. He relies without discussion upon the first amendment to the United States constitution and article first, §§ 4, 5 and 14, of the Connecticut constitution. The argument, however, rather than being of constitutional dimension, seems to boil down to a challenge to the sufficiency of the evidence to support the Board's findings and conclusions and the appropriateness of the sanction it imposed. The plaintiff argues that "[s]imply because Dr. Ryan and [L.H.] were members of the same bike club does not indicate there was an inappropriate relationship." He further argues that "[i]n determining an appropriate sanction, the Board must balance an individual's freedom of association with the claimed violation of this profession."
The plaintiff cites no case law for his claim that a psychologist has an unfettered right to associate with anyone he chooses, without regard for the therapeutic relationship, and despite the APA's Ethical Principles, which clearly discourage psychologists from multiple relationships. See, e.g., Section 1.17 (Multiple Relationships), which clearly places restrictions on a psychologist's freedom of association by instructing psychologists to avoid having contact outside the therapy setting with patients whenever practically feasible.
The plaintiff's failure to adequately brief its constitutional claim compels the conclusion that he has abandoned it. See Milner v. Commissioner of Correction, 63 Conn. App. 726, 735 n. 7, 779 A.2d 156 (2001); Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999).
NATURE OF REMAND
At the hearing on the merits, this court asked counsel to state their respective positions on an appropriate remand order and to address the court's concern about the difficulty in ferreting out the impact of the Board's conclusion that the plaintiff was negligent and used poor judgment in treating beyond the area of his expertise on the sanction the Board chose to impose. Of course, the plaintiff's counsel argued that the appeal should be sustained without remand, and counsel for the Department argued that the appeal should be dismissed, but, that if there were to be a remand, it should be limited to a rehearing on the issue of the sanction. The parties were requested to provide the court with authorities for their respective positions. No such authorities have been submitted and none directly on point have been found by this court.
General Statutes § 4-183(j) provides: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment."
General Statutes § 4-183(k) provides: "If a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action, or orders the agency to take such action as may be necessary to effect the particular action."
Given the sufficiency of the evidence with respect to the findings and conclusions of the Board that the plaintiff violated Section 4.07 of the APA's Ethical Principles, which states that psychologists shall not engage in sexual intimacies with former patients or clients for at least two years after cessation or termination of professional services, and Section 1.17 of the APA's Ethical Principles, which states that psychologists shall refrain from entering a personal, financial, or other relationship with a patient which may impair the psychologist's objectivity and which may harm or exploit the other person, and that the plaintiff likewise violated the standard of care, the appropriate action is to remand this case for the Board to determine what impact, if any, the conclusion that the plaintiff was negligent and used poor judgment by treating L.H. in individual therapy when his expertise is in learning disabilities and attention deficit disorders had on its decision to revoke the plaintiff's license and to consider the sanction to be imposed. It is presumed that on remand the board will be so constituted as to conduct an impartial hearing. See Clisham v. Board of Police Commissioners, 223 Conn. 354, 375, 613 A.2d 254 (1992).
Given that the issue of sanctions is yet to be decided, the court will not review the claims by the plaintiff that the Board's revocation of the plaintiff's license is not consistent with its past decisions and therefore an abuse of its discretion and that a practitioner's license can only be revoked in a final decision which is effective upon the date of approval by the Board if the practitioner presents a clear and immediate danger to the public health and safety if allowed to continue to practice.
CONCLUSION AND ORDERS
The court finds that substantial rights of Plaintiff have been prejudiced because the decision of the Board is in violation of constitutional and statutory provisions and was made upon unlawful procedure because Plaintiff was not provided with proper notice of the charges against him. The appeal is sustained, and the case is remanded to the Board for a rehearing limited, in light of this decision, to the issue of the sanction imposed by the Board. The court leaves it to the members of the Board, in light of this decision, to determine the configuration of the Board for the purpose of rehearing.
The court orders a continuation of the stay of revocation of Plaintiff's license ordered by the court, December 14, 2001, upon the same conditions stated in the parties' stipulation dated December 11, 2001, pending the final outcome of a rehearing and any appeals therefrom. General Statutes § 4-183(f). Any questions concerning the terms of the stay should be directed to the trial court. Dragan v. Connecticut Medical Examining Board, 24 Conn. App. 662, 670 n. 6, 591 A.2d 150 (1991), rev'd on other grounds, 223 Conn. 618, 613 A.2d 739 (1992).
General Statutes § 4-183(f) provides: "The filing of an appeal shall not, of itself, stay enforcement of an agency decision. An application for a stay may be made to the agency, to the court or to both. Filing of an application with the agency shall not preclude action by the court. A stay, if granted, shall be on appropriate terms."
BY THE COURT
Tanzer, Judge