Louisiana Psychology Board Procedures Deemed Unconstitutional

“Another ASPPB-Driven Psychology Board Busted Abusing Psychologists Constitutional Rights

Full Credit to Source: The Psychology Times June 2017  | Independent Voice for Psychology and Behavioral Sciences in Louisiana
 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, said Cerwonka’s attorney, Mr. Lane Roy to the Times in an interview this week.

The Louisiana State Board of Examiners of Psychologists conducted a hearing in January and decided to take away Dr. Cerwonka’s Louisiana license, after an investigation process that appears to have resulted in over $75,000 of legal fees by the LSBEP Prosecutor and general council. The May 2 hearing was preliminary to Dr. Cerwonka’s appeal of the Board’s decision, made sometime in February. Mr. Roy was requesting a “Motion to Stay,” so that Cerwonka could retain his license until the Court could hear the appeal.“It was all at the sidebar,” Roy said. “Without me bringing up anything, he [Judge Caldwell] called us up and said, ‘I read the briefs and I read the pleadings. I just can’t send this up to the Court of Appeals, the violations of Due Process are rampant.’ Roy reported.

The Judge 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. Issues were listed in a Pre-Hearing Memorandum by Mr. Roy. One of these was that Cerwonka had previously been a client of the LSBEP prosecuting attorney, Mr. James Raines.

Also attending the May 2 review by Judge Caldwell was LSBEP attorney Ms. Amy Lowe. According to both Roy and Cerwonka, Ms. Lowe appeared concerned about Judge Caldwell’s viewpoint and remarked to him that a large amount of money had been spent by the state for the proceedings against Cerwonka. Roy told the Times that Judge Caldwell replied to Ms. Lowe that he [Caldwell] understood that the costs were a concern, however, “He said, ‘My hands are tied. There’s no way we’re going to be able to sustain it.” Cerwonka said that the Judge commented that if the board wanted to develop a Constitutionally allowed process and retry him, they could.

At the May 2 review, Judge Caldwell was scheduled only to hear the arguments about the Motion to Stay. Judge Caldwell granted the motion and reinstated Cerwonka’s license. Cerwonka is also licensed in New York. According to both Roy and Cerwonka, both who were present, Ms. Lowe insisted on a briefing, presumably in hope of countering Judge Caldwell’s conclusions regarding Due Process violations. Roy said that Judge Caldwell agreed to a briefing, which is taking place this week, but Caldwell said that it would not help Lowe unless something dramatic was produced. Caldwell said the decision to vacate the decision by the psychology board would likely stand, this according to Mr. Roy.

After seeing the legal charges in this case, “I was shocked at these fees,” Roy told the Times. “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. In a Pre-Hearing Memorandum, one of the documents Judge Caldwell reviewed to reach his views, Mr. Roy argued that there were procedural violations in the prosecution of Cerwonka.

“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. “A review of the record will show that in fact Mr. Lunsford allowed the Board to put on anything it wanted to put on while restricting on numerous occasions evidence or other testimony on the part of Dr. Cerwonka. There was even a questioning by Ms. Lowe and not surprisingly, Mr. Lunsford made no adverse rulings on admissibility of his law partner’s questioning.”

Mr. Roy continues in the 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 Memorandum also lists a number of other complaints, including the charge that the board prosecuting attorney obtained confidential patient records without authority or consent, that the board ruled on the basis of information about a previous girl-friend while that had not been part of the complaint against him, that the board’s complaint coordinator instituted a suspension without Board authority and did so “ten minutes after Dr. Cerwonka refused to resign his license and requested an evidentiary hearing.”

Mr. Roy also wrote that the Board’s investigator persuaded the previous girl-friend, who had a contentious breakup, to enter Cerwonka’s home to take photographs and that these included staged images. The complaint also states that the investigator had another individual obtain, illegally from Cerwonka’s office, files, phone, and computer information without authority.Cerwonka told the Times that Judge Caldwell commented that this was similar to the dental board case, known as Haygood v. LA State Board of Dentistry, heard in the Court of Appeal of Louisiana, Fourth Circuit, in 2012.

In that finding, Judge T erri Love, writing for the Appeals Court, said, “After conducting a de novo review, we find the combination of the Board’s general counsel’s roles of prosecutor and adjudicator violated Dr. Haygood’s due process rights. We find the Board improperly combined the prosecutorial and judicial functions by allowing its general counsel, Mr. Brian Begue, to serve as the prosecutor, general counsel, panel member, and adjudicator for the proceedings against Dr. Haygood. […]” 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 for disciplinary votes.

The subcommittee handles disciplinary matters until a complaint rises to the level of a hearing or other recommendation, including Consent Orders.The Policy and Procedures 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 from 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 from Mr. Raines.

No comments were able to be obtained from the LSBEP because of a policy of no interviews with the press.

ASPPB did not response to our request to comment at the time of publication.

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