LSBEP to Appeal Judge’s Decision

The Louisiana State Board of Examiners of Psychologists (LSBEP) will appeal a recent decision by District Court Judge Michael Caldwell, who ruled that the board’s process violated the Constitutional rights of a psychologist.

On July 27 the Times asked LSBEP Executive Director, Ms. Jaime Monic, if the Board was going to appeal Judge Caldwell’s decision.

Ms. Monic responded the following day, writing, “The Board thoroughly discussed this matter and the Order from the 19th Judicial District Court at a special meeting held on July 7, 2017. With consideration being given to the costs of a new hearing as well as the Administrative Procedures and other statutorily supported procedures that were followed by LSBEP staff, and in consultation with Attorney Amy Groves Lowe, the Board voted to appeal the decision of the 19th JDC.”

On May 2, Judge R. Michael Caldwell of the 19th Judicial District Court in Baton Rouge said that the procedures leading to the suspension of Dr. Eric Cerwonka’s psychology
license included so many Constitutional violations that the decision could not stand, according to Cerwonka’s attorney, Mr. Lane Roy, in a previous interview.

Judge Caldwell agreed to hear additional arguments from the LSBEP attorney, Ms. Amy Lowe. On June 26 Judge Caldwell heard the additional views but stood firm on his initial opinion, this time using the term, “reeks” to describe some of the process, as described by Mr. Roy.

On July 7 the LSBEP met in a special meeting at Children’s Hospital in New Orleans scheduled from 3:35 to 5:00 pm. According to the agenda the members were to have discussed two matters in executive session from 3:35 to 4:30. The agenda listed the two topics for the closed session as: “1. Review qualifications of applicants for prosecuting attorney. 2. Other in-house personnel matters.”

Also according to the published agenda, the members were then to have discussed the following matters from 4:30 to 5 pm in open session:“1. Prosecuting Attorney Contract 2017-18; 2. Complaints Coordinator II Position 2017-18; 3. 201718 Budget Recommendations; and 4. Eric Cerwonka vs. LSBEP, 19th Judicial District Court Decision.”

At the most recent regular board meeting of the Board, held July 28 at the Baton Rouge office of the LSBEP, Dr. Tom Hannie attended and asked about the appeal. Dr. Kim VanGeffen, Professional Affairs Chair for the Louisiana Psychological Association, was also in attendance. Hannie provided the Times with a recording of the discussion.

Dr. Hannie: “I have questions about that case. As I understand it, the lawyer that was running the trial also had represented Cerwonka in a previous case, and the person who was prosecuting, was a member of the same firm. I’m wondering if the attorneys were committing malpractice by not recusing themselves and if y’all have looked at that?”

Dr. Phil Griffin: “We’ve looked at every aspect of it. I, you know…His attorneys, to me, did a pretty damn good job. I was impressed with Cerwonka’s attorneys. And I don’t know, if there’d have seen something awry … that should have brought that up at the trial, in terms of our prosecuting attorney. Those things, those things quite frankly don’t even enter into what all was going on, why the guy was in the hearing in the first place.”

[Many speaking at same time…]

Dr. Amy Henke: “I would encourage anyone who has questions about these hearings, please come. See what you think. They’re open to the public. Julie was there. I encourage LPA, someone from the association, to see what you think. Watch what we watch, and see what you would do.”

Dr. Kim VanGeffen: “… At least as I understand it, it was not so much the hearing itself, but what led up to the hearing.”

Ms. Monic: “Unfortunately, complaint investigations are confidential. There are avenues for reviewing the board’s policies and procedures. The Inspector General could certainly come in and take a look at that case and how it was handled. That wasn’t an option that was pursued and so now we’re in litigation. Whether or not, as an administrative agency, we acted properly administratively, I believe we did.”

[Many speaking]

Dr. Hannie: “I understand that you, you’re shackled, but when I see that the board is going to appeal I look at the cost of appealing, and sometimes when you appeal, you not only pay your legal fees but you pay the other person’s legal fees and it can get outrageous.” He described an unrelated example where an appeal may be costing $100,000 or more.

“In some of these cases they get six figures, paying on an appeal, just paying the other person’s fees, not just their own.”

Dr. Henke: “We worry about costs too, but our number one charge is public safety. We can’t not pursue something, we can’t just say it’s too expensive–– ‘we’re not going to protect the public on this one because it’s too expensive.’ ”

At the May 12 meeting of the LSBEP, following Judge Caldwell’s initial opinion on May 2, the minutes indicate that the board members discussed the alternatives to either appeal the ruling or to conduct a rehearing of the case involving Dr. Cerwonka. The minutes noted:

“Petition for Judicial Review: Eric Cerwonka vs. Louisiana State Board of Examiners of Psychologists: No. C656587 Section 24 – The Board reviewed the Petition for Judicial Review in this matter and the Summary Report provided by Attorney Amy Groves Lowe concerning the Status Conference held on April 21, 2017. The Board approved moving forward with a judicial review before the 19th Judicial District Court in lieu of rehearing.”

Discussion items for that meeting also included the review of Legal Contracts for 2017–2018. The minutes listed the following:

“1. Taylor, Porter, Brooks & Phillips (TPBP) – By motion of Dr. Griffin, the Board unanimously approved an amendment to the July 1, 2016 – June 30, 2019 contract with TPBP to add an additional $12,000, needed for continued legal services.” Taylor Porter is the firm for the Board’s General Council, which includes Mr. Lloyd Lunceford and Ms. Amy Lowe.

The minutes also noted: “2. Breazeale, Sachse & Wilson (BSW) – The consideration of this contract was tabled until July 2017.” BSW is the firm for Prosecuting Attorney, Mr. James Raines.

And the other items were: “3. Roedel, Parsons, Koch, Blanche, Balhoff & McCollister – The consideration of this contract was tabled until July 2017. 4. Other – The Board designated Dr. Amy Henke and Ms. Jaime Monic to conduct interviews for additional legal counsel for the 2017-18 Fiscal Year.” The Roedel firm is the firm for Ms. Deborah Harkins, the attorney often hired for legislative issues.

According to public records the board has had escalating legal fees which stem primarily from charges from the Board Prosecutor, held at one point 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 from Mr. Raines.

This past legislative session the LSBEP helped pass legislation that removed a oneyear time limit for investigations from the psychology licensing law. The measure also gave the board’s complaints subcommittee the ability to charge fees to psychologists being investigated for activities that do not reach the hearing level.

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