In an ironic twist of events, the Louisiana State Board of Examiners of Psychologists (LSBEP) has shepherded a bill through the legislature giving them more time to investigate complaints and more authority to charge fees. At the same time a District Court Judge has ruled that the board’s investigation and complaints subcommittee blatantly violated a defendants’ constitutional rights of Due Process.
“It is a huge issue and a major decision,” said Lane Roy, attorney for defendant Dr. Eric Cerwonka, “because it flies in the face of the procedure that we know this board has used time and again.”
The most recent hearing was held on Monday, June 26, with Judge R. Michael Caldwell of the 19th Judicial District Court in Baton Rouge. This latest ruling followed a May 2 review where Caldwell informed both sides that he considered the LSBEP procedures to violate Constitutional rights of the defendant.
On May 2 the LSBEP attorney, Ms. Amy Lowe, urged Judge Caldwell to allow her to present additional arguments and Caldwell agreed.
However, Mr. Roy did not see any meaningful additions presented by Ms. Lowe at the recent June 26 hearing. “She had nothing,” said Mr. Roy. “Zero.”
Mr. Roy also told the Times that Judge Caldwell used the term “reeks” three times at the June 26 hearing to describe his [Caldwell’s] views.
“The Judge ruled in open court and he used the phrase three times–– ‘This matter reeks with denials of Constitutional rights. I don’t care what he did or didn’t do. I can’t put up with this. As a Judge, I can’t,’ reported Mr. Roy. “He [Caldwell] was resolute. He said it was not a close call. That it was basic.”
Mr. Roy also said that the issues ruled on by Judge Caldwell are so basic that there is no possibility that the LSBEP attorneys do not know of these requirements.
“These are good people from good firms,” said Roy. “They all know the laws in these areas. What it tells me, is that they are bold enough to do it anyway.”
“The statute gives the board authority, but how can you have an administrative person, staff workers, who decide, who make decisions that affect the livelihood of people?” said Roy. “It’s the first step in taking the legs out from under the defendant. The defendant is concerned with their livelihood and ability to make a living, and can lose employment, before anyone on the board has even heard their case.”
“They run the costs up so high,” said Roy, “and put them [defendants] under political pressure and economic pressures. In Baton Rouge, where all the boards are, it is a cottage industry for attorneys.”
The Times asked Mr. Roy if he thought that the LSBEP would appeal. “She [Ms. Lowe] said she would appeal. I can’t imagine that this board would appeal, but I’ve been surprised by their decisions before.”
The District Court is not a court of publication explained Roy, but the Appeals Court is. Decisions handed down from the Appeals Court are widely distributed. “If they go to the Court of Appeal, they invite everyone to see their mistakes.”
On May 2, Judge Caldwell mentioned some of what he viewed as Constitutional violations, such as the hearing officer being the law partner of the board attorney and also someone entering Cerwonka’s home illegally to attempt to gather evidence. Another of these issues was that Cerwonka had previously been a client of the LSBEP prosecuting attorney, Mr. James Raines.
Mr. Roy noted in a Pre-Hearing Memorandum, “The prosecuting attorney for the Board had represented Dr. Cerwonka in a hotly contested custody dispute, had obtained much personal information about his then client, and provided information obtained to his Board client, all without authority or consent.”
“The Administrative Law Judge, Lloyd Lunsford, the person who at the hearing made all rulings on questions of law, admissibility of evidence, what was relevant and not relevant, and generally acted as ‘judge’ at the hearing, was and still is the law partner of Amy Lowe, who represented the Board at the hearing and who in fact, is representing the Board in this appeal,” wrote Roy in the memorandum.
Mr. Roy said in an interview with the Times, “It doesn’t mean that the board can’t go back and do it again. They have to do it in the correct way. My opinion is that if they do that, they will not be successful,” he said.
“The interest is not to police the profession, it is some other interest,” said Roy. “Some say it is political, but whatever the interest is, it is not to police the profession.
” The Complaints Committee of the LSBEP is a subcommittee that operates without direct oversight of the board members. The reason for this is so board members will avoid being exposed to information prior to disciplinary votes.
The Policy & Procedures for investigations have been changed dramatically over the last decade, so that once staffed by experienced psychologists and past board members, now there is a Private Investigator and a Prosecutor.
According to public records the board has had escalating legal fees which stem primarily from charges by the Board Prosecutor, held currently by Mr. James Raines. Over 2015 to 2016, and into January 2017, Mr. Raines prosecuted 16 cases. Three of these 16 cases amounted to $146,987 of charges for Mr. Raines.
After seeing the legal charges in this case, Mr. Roy said in a previous interview, “I was shocked at these fees. I’ve never seen these types of fees. It clearly is punitive,” he said. “I’m convinced that they don’t want anybody to appeal.”
Mr. Roy said that he has a good deal of experience with boards and that costs average around $10,000. A previous review of public documents suggested that fees for the Cerwonka case had come to $78,000 for the LSBEP. Mr. Roy noted a total of over $100,000 was closer.
During the recent legislative session, the LSBEP put forth legislation, SB 37 now Act 234, that removed a one-year limit on investigations from the psychology law. The measure also provided for fees to be charged for the investigations subcommittee. The bill was eventually amended so that the subcommittee fees would be capped at $10,000.
The Times asked for comments by the LSBEP after Judge Caldwell’s latest ruling, but has not received comments by publication time. The LSBEP has a policy of no interviews with the press.
[Editor’s Note: See “Judge Says Psych Board Procedures Unconstitutional,” in June issue of the Times. Also see “What’s Behind Door No. SB 37?” in the April Times.]