Opinion
No. HHB-CV-08 4018603S
December 23, 2009
MEMORANDUM OF DECISION
The plaintiff, Reuben T. Spitz, Ph.D., (Appellant or Spitz), appeals from a final decision dated June 6, 2008, of the State of Connecticut board of examiners of psychology (board) suspending his license, staying the suspension and imposing other penalties such as two years of probation pursuant to Connecticut General Statutes § 19a-17(a) and 20-192.
PROCEDURAL BACKGROUND
On September 27, 2007, the department of public health presented the board with a statement of charges (charges) issued against the plaintiff, license No. 002273, a licensed practicing psychologist. The statement of charges alleges that "in or about September 2004 [appellant] began a personal relationship with LB, a former patient and wife of RB and mother of EB, also former patients. The personal relationship between [appellant] and LB became a sexual relationship in about February of 2005. The sexual relationship between the [appellant] and LB ended in about May of 2006." (Return of Record [ROR], Exhibit 1, ¶¶ 4, 8, and 19, Vol. 2 of 4.) Specifically, the statement of charges alleges the following counts:
In their briefs to this court, the parties refer to appellant's patients and/or relatives by initials and this court will also refer to those parties by initials.
Count One: "In or about September 2003, [plaintiff] began treatment with a male patient, RB. [Appellant's] treatment of RB ended in about May of 2004." (ROR, Exhibit 1, ¶ 3, Vol. 2 of 4.)
Count Two: "In or about September 2003 [appellant] began treatment with RB's wife, LB. [Appellant's] treatment of LB ended in about May of 2004." (ROR, Exhibit 1, ¶ 7, Vol. 2 of 4.)
Count Three: "From about December 2005 through April 2006 [appellant] provided LB with Xanax and/or amphetamines." (ROR, Exhibit 1, ¶ 11, Vol. 2 of 4.)
Count Four: "From about December 2005 through about April 2006 [appellant] conveyed confidential information about at least three of [appellant's other patients to LB." (ROR, Exhibit 1, ¶ 15, Vol. 2 of 4.)
Count Five: "In about October 2003 [appellant] began treatment with RB and LB's minor son, EB. [Appellant's] treatment of EB ended in about June 2004." (ROR, Exhibit 1, ¶ 18, Vol. 2 of 4.)
The statement of charges alleges that "the above described facts constitute grounds for disciplinary action pursuant to the General Statutes of Connecticut, § 20-192, specifically [appellant] . . . acted negligently, incompetently or wrongfully in the course of his profession . . ." (ROR, Ex. 1, ¶¶ 5, 9, 12, 16, and 20, Vol. 2 of 4.)
On October 12, 2007, the department served a notice of hearing and charges on the appellant by certified mail. On the same date, the department presented the board with a motion for summary suspension of appellant's license, which was denied. The appellant filed an Answer to the charges along with three special defenses on November 1, 2007. On the same date, the appellant also filed a motion for a more definite statement, to which the department objected. The board denied the motion on November 14, 2007. On November 16, 2007, the appellant filed a motion for reconsideration and a motion in limine to preclude testimony. On November 27, 2007, the board denied the motion for reconsideration. The motion in limine was rendered moot by appellant calling Dr. Donna DiCello and examining her at the hearing.
An administrative hearing to adjudicate the charges was held before the board on November 28, 2007, February 1, 2008 and April 18, 2008. The board consisted of three psychologists and one lay person, an attorney. The department presented three witnesses: an investigator with the practitioner investigations unit of the department; RB and LB. In addition to testifying on his own behalf, the appellant called two witnesses: his wife and Dr. Donna DiCello. Both parties submitted numerous documents.
During the hearing, appellant filed two motions seeking to disqualify two of the four board members. On January 31, 2008, the appellant moved to disqualify James T. Monahan, Ph.D., chairperson of board, claiming bias based on the chairperson's decision to refer to witnesses only by initials to protect their privacy and his interruption of the cross-examination of LB to ask leading questions. On April 18, 2008, appellant moved to disqualify Richard J. Colangelo Jr., attorney and member of the board, claiming bias based on his motion to go into executive session, at the close of the evidence on November 28, 2007, to inquire from the board's counsel whether the board could initiate summary suspension proceedings. The board denied both motions to disqualify. On June 6, 2008, the board issued a decision finding that the department had sustained its burden of proof, by a preponderance of the evidence, as to counts two and five. The board concluded that the appellant had engaged in an inappropriate relationship with LB, his patient, in violation of Conn. Gen. Stat. § 20-192. Based on these violations, the board suspended the appellant's license for a period of two years. The suspension was immediately stayed by the board subject to appellant fully complying with the terms and conditions of probation for two years. The terms of probation required the appellant to undergo regularly scheduled therapy with a licensed psychologist preapproved by the department and his practice to be supervised by a licensed psychologist, pre-approved by the department. Appellant filed his appeal of the board's decision with this Court on July 11, 2008.
The board concluded that the department had failed to meet its burden of proof as to count one, relating to RB as a patient, and count three, relating to dispensing Xanax and/or amphetamines to LB. The board did not render a decision as to count four, alleging the disclosure of confidential patient information to LB, because that count was withdrawn by the department at the hearing on February 1, 2008.
On April 22, 2009, the appellant filed a memorandum of law in support of his appeal, to which the department responded on June 12, 2009. The matter was scheduled for oral argument on August 13, 2009. On August 12, 2009, appellant filed a reply brief. The department filed a motion to strike the reply brief as untimely. After hearing from the parties on August 13, 2009, the court denied the motion to strike and permitted appellant to submit its reply brief while affording the department an opportunity to file a reply. At the conclusion of oral argument, the court set a briefing schedule permitting both sides to file supplemental briefs on or before October 2, 2009. The court noted that additional briefs or late briefs would not be permitted without prior court approval. On October 2, 2009, the department filed a reply brief.
FACTUAL BACKGROUND
The board made the following findings of fact:
1. Reuben T. Spitz of North Stonington is, and has been at all times referenced in the Charges, the holder of Connecticut psychology license number 002273. Resp. Ex. A.
2. At all relevant times [appellant] was in private practice in Waterford and/or North Stonington, Connecticut. Resp. Ex. A.
3. In or about September 2003, [appellant] began treatment with a male patient, RB. [Appellant's] treatment of RB ended in or about May 2004. Resp. Ex. A; Tr. 11/28/07, pp. 77, 79, 87; Tr. 02/01/08, p. 90.
4. During the time frame from October 2003 to May 2004, there was a psychologist-patient relationship between the [appellant] and RB's wife, LB. Resp. Ex. A; Tr. 11/28/07, p. 137; Tr. 02/01/08, pp. 83-86, 90-91.
5. In about October 2003, [appellant] began treatment with EB, LB's minor son. [Appellant's] treatment of EB ended in about June 2004. Resp. Ex. A.
6. In or about September 2004, [appellant] began a personal relationship with LB. The personal relationship between [appellant] and LB became a sexual relationship in about February 2005. The sexual relationship between [appellant] and LB ended in about May 2006. Resp. Ex. A.
7. The evidence is insufficient to establish that from about December 2005 through about April 2006 [appellant] provided LB with Xanax and/or amphetamines.
(ROR, Memorandum of Decision, Vol. 1, p. 5.) Based on these findings, the board concluded that the department had met its burden of proof as to counts two and five of the charges.
DISCUSSION
In this appeal, the appellant argues that the board's decision was made in error of law, arbitrary and not supported by substantial evidence. The appellant specifically alleges: 1) he was provided with inadequate notice of the charges; 2) board chairman Monahan improperly failed to disqualify himself; 3) board member Colangelo demonstrated bias and should have been disqualified; 4) the board violated the Freedom of Information Act; and 5) the board's decision is not supported by substantial evidence. The court will address each claim separately.
I. JURISDICTIONAL BASIS CT Page 1630
Pursuant to § 4-183, the appellant has taken an administrative appeal from a final decision and, because the action of the board adversely affects the plaintiff's license to practice his profession as well as his property, he is aggrieved. State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 300, 524 A.2d 636 (1987) (citations omitted) (Physicians "have a legally protected interest in the practice of medicine"); See also Zabrecky v. Board of Chiropractors, Superior Court, judicial district of New Britain, Docket No. 0702118 (November 19, 1991, Maloney, J.) [ 5 Conn. L. Rptr. 672]; Rucci v. Dept. of Children Families, Superior Court, judicial district of New Britain, Docket No. CV 02 0516990 (November 5, 2003, Peck, J.) ( 36 Conn. L. Rptr. 7) (noting serious consequences to appellant's reputation and employment possibilities that result from the placement of appellant's name on child abuse registry).II. STANDARD OF REVIEW
The proper standard of review of an administrative agency's decision is set forth under the uniform administrative procedures act (UAPA). "The scope of that review is very restricted . . . With regard to questions of fact, it is . . . [not] the function of the trial court . . . to retry the case or to substitute its judgment for that of the administrative agency . . . The substantial evidence rule governs judicial review of administrative fact-finding under UAPA . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review . . . The burden is on the [appellant] to demonstrate that the [agency's] factual conclusions were not supported by the weight of substantial evidence on the whole record . . . Even as to questions of law, [t]he court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of discretion . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001); see also Office of Consumer Counsel v. Dept. of Public Utility Control, 279 Conn. 584, 592-93, 905 A.2d 1 (2006).
III. NOTICE OF THE CHARGES
Appellant argues that this court should reverse the board's decision because he was provided with inadequate notice of the charges against him. He claims that the department "did nothing more than identify the statute . . . but did not identify a specific act of negligence, incompetence or wrongful conduct . . . [and appellant] was left to guess at what the charges were." (ROR, memorandum of law, p. 12.) Specifically, appellant argues that he was not on notice that the board was going to rely on appellant's treatment of her son, EB, and her presence at RB's (her husband) sessions as a basis for concluding that she was appellant's patient. Appellant also argues that the board's denial of his request for a more definite statement denied him adequate notice of and ample opportunity to rebut the findings of fact that the board relied on in reaching its conclusion.
Prior to initiating formal proceedings, the agency must give notice pursuant to § 4-182(c) to afford licensees an opportunity to demonstrate compliance with the alleged statutory violations. See Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 812, 855 A.2d 174 (2004). If the licensee is not able to demonstrate compliance, the agency may issue a formal statement of charges and provide notice in accordance with § 4-177. Id. See § 4-177(a): "[I]n a contested case, all parties shall be afforded an opportunity for a hearing after reasonable notice." The written notice "shall include: (1) a statement of the time, place and nature of the hearing; (2) a statement of the legal authority and jurisdiction under which a hearing is to be held; (3) a reference to the particular sections of the statutes and regulations involved; and (4) a short plain statement of the matters asserted." § 4-177(b).
The statement of charges alleged that appellant acted wrongfully by engaging in an inappropriate sexual relationship with LB, his former patient (as alleged in count two), the wife of a former patient, RB (as alleged in count one) and the mother of a former patient, EB (as alleged in count five). The appellant was aware at the outset that the department was alleging that treatment of EB, LB's 10-year-old son, was also a basis for the alleged wrongful conduct. The statement of charges put the appellant on notice that the board would be asked to consider the appropriateness of his conduct in engaging in a sexual relationship with a former patient, who was also the wife and mother of two of his former patients. See Goldstar Medical Services v. Dept. of Social Services, 288 Conn. 790, 821-25, 955 A.2d 15 (2008); Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 536, 560 A.2d 403 (1989) (notice of improper diagnosis was sufficient for finding of both improper diagnosis and treatment where treatment was "mere surplusage"); see also Jutkowitz v. Dept. of Social Services, 220 Conn. 86, 93, 596 A.2d 374 (1991).
Adequacy of notice depends on whether there is a "variance between the charges made and the conclusions reached by the Board which is sufficiently substantial to violate the rights of [the appellant.]" Levinson v. Board of Chiropractic Examiners, supra, 211 Conn. 535. There was no variance between the allegations of the department and the conclusions reached by the board in this case. Unlike Ryan v. Dept. of Public Health, Superior Court, judicial district of New Britain, Docket No. 01-0511526 (June 17, 2004, Tanzer, J.), a case relied on by the appellant, the department attempted to prove only the conduct alleged in the statement of charges. In Ryan, the court found a variance between the statement of charges alleging an inappropriate relationship with a former patient and the board's subsequent finding of negligent treatment not mentioned in the statement of charges. Id.
In addition to the statement of charges and its specificity, the appellant was provided with an investigative report detailing the alleged conduct which formed the basis of the charges and the applicable sections of the American Psychological Association's (APA) Ethical Code. (ROR, Dept. Exhibit 2, Vol. 1, pp. 8-16.) The investigative report summarized the factual allegations made by the complaining witnesses, RB and LB, the investigation conducted by the department and the assessments conducted by experts. Attached to the investigative report were numerous exhibits including a May 6, 2007 letter from Dr. Donna H. DiCello, Psy.D., to the department's investigator outlining her assessment of the case and the specific sections of the APA ethical code that she believed the appellant had violated. (ROR, Dept. Exhibit 4, Vol. 1, pp. 222-23.) Among the attachments were also lengthy statements made by LB to investigators and law enforcement regarding the nature of the treatment provided by appellant and their relationship. (ROR, Dept. Exhibit 11, Vol. 1, pp. 55-77.) These allegations were similar to those made as part of the civil suit filed by RB and LB against appellant. (ROR, Dept. Exhibit 3, Vol. 1, pp 17-36.)
Dr. DiCello opined that appellant's conduct raised a number of serious ethical violations, which included an expectation "a psychologist would not commence a sexual relationship with a patient (APA ethics Section 10.05), nor a former patient (APA Ethics Section 10.08) for at least two years after termination of therapy, particularly if there is a likelihood it will harm the patient . . . [nor] with relatives of current therapy clients (APA Ethics Section 10.06). "(ROR, Dept. Exhibit 4, Vol. 1, pp. 222-23.) Thus, Dr. DiCello concluded that "based on the review of documents in the petition and the Ethics Principles of Psychologists and Code of Conduct (APA), that an ethical and appropriate standard of care was not met by the appellant] regarding the care and of [LB, RB] and their minor son. Both [LB and RB] have stated in documents that their mental and emotional health suffered as a result of the actions of [the appellant]. The refutations by [appellant] of the allegations are weak and unconvincing in light of the evidence against him." (ROR, Dept. Exhibit 4, Vol. 1, pp. 222-23.) In addition, the ethical code was cited by RB and LB in their civil complaints against appellant. (ROR, Dept. Exhibit 3, Vol. 1, p. 35.)
Even if the appellant, as a psychologist, was unaware of the relevant sections of the code of ethics governing sexual relationships with former patients, given the investigative report and attachments provided to him prior to the hearing, he can hardly claim that he was "left to guess at what the charges were" and the standards the Board would apply. Further, he called Dr. DiCello as a witness and was free to examine her about her conclusions and/or refute such evidence with additional witnesses.
The standards of practice "are part of the ethics of the profession," and "every member of the profession should be regarded as an expert" with regard to the determination of their meaning. Leib v. Board of Examiners of Nursing, 177 Conn. 78, 89, 411 A.2d 42 (1979).
Appellant was not only on notice of the specific ethical provisions at issue, he called Dr. DiCello as a witness in his case and could have inquired about her opinion relating to violations of those ethical sections and the basis for her conclusions. See Jutkowitz v. Dept. of Social Services, 220 Conn. 86, 94, 596 A.2d 374 (1991) (where defendant introduced evidence to refute the charge, he could not complain that his defense was prejudiced). Thus, even if the appellant had not received prior notice of the ethical provisions alleged to have been violated, having had an opportunity to examine the expert, the appellant cannot claim prejudice.
Appellant also challenges the board's reliance on its own expertise in determining the appropriateness of his conduct and absence of specific regulatory provisions prohibiting the alleged conduct. Unprofessional conduct or conduct that violates the code of ethics "must be determined by those standards that are commonly accepted by those practicing in the same profession." Leib v. Board of Examiners of Nursing, 177 Conn. 78, 88-89, 411 A.2d 42 (1979).
There is no requirement, as argued by the appellant, that there be a statute or specific section of the code that provides that attendance of a spouse constitutes treatment of that spouse or that treatment of a minor constitutes treatment of his parents. Id., 90. ("It cannot be expected of a legislature that it should forbid specifically all improper practices likely to occur. No matter how specific the standard or standards are stated, there is almost always a penumbra which requires the administrative agency to exercise a judgment as to whether the facts before it fall within or outside the legislative design.") Members of the Board, three of whom are psychologists, are presumed to be experts in determining the meaning of the code of ethics and acceptable conduct and entitled to rely on that expertise without hearing expert opinion evidence. See Jutkowitz v. Dept. of Social Services, 220 Conn. 86, 110-11, 596 A.2d 374 (1991); Levinson, supra, 211 Conn. 526-36; Jaffe v. State Dept of Health, 135 Conn. 339, 349-50, 64 A.2d 330 (1949); see also Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 783, 761 A.2d 257 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001).
On the basis of its specialized professional knowledge and recognized principle within the practice of psychology, the board concluded that LB's presence alone would establish that a psychologist-patient relationship existed between the appellant and LB. (ROR, memorandum of decision, Vol. 1, p. 6.) See also Leib v. Board of Examiners of Nursing, supra, 177 Conn. 88-89. The evidence, including appellant's admissions, establish that LB attended RB's treatment sessions. It is the proper function of the board to determine whether appellant's admission that LB was present during a session with RB constituted treatment of LB to prove the allegation of wrongful conduct in count two.
More importantly, contrary to appellant's claim, the board concluded that LB was herself a patient and did not rely exclusively on her attendance of RB's sessions to find the existence of a psychologist-patient relationship. Specifically, the board addressed appellant's denial that he provided individual therapy to LB or family therapy to RB, LB and EB. However, the board did not agree with appellant's claims and added as part of their findings of the psychologist-patient relationship that "additionally, LB testified that she received treatment from the [appellant] during this time period." (ROR, memorandum of decision, Vol. 1, p. 6.) Indeed, both LB and RB testified that they attended joint marriage counseling sessions with the appellant and that both were receiving treatment from the appellant. (ROR, transcript, November 28, 2007, Vol. 3, pp 77-8, 83, 88, 137-9, 172-4.)
The board also appropriately applied its specialized knowledge and recognized principles within the practice of psychology to conclude that when "a minor is treated, the parent is part of the treatment" and hence a psychologist-patient relationship exists between the clinician and the parent. (ROR, memorandum of decision, Vol. 1, p. 7.) In this case, the board heard ample evidence that LB would meet with appellant prior to or after the sessions with her son to discuss his treatment and the family dynamics. (ROR, transcript, November 28, 2007, Vol. 3, pp. 175-76; transcript, February 1, 2008, Vol. 4, pp. 21-23; Vol. 1, p. 55.)
Further, LB signed both an acknowledgment of patient doctor relationship and a psychotherapist patient services agreement with the appellant for treatment of her son. (ROR, Appellant Exhibit D, Vol. 1, pp. 169-71.) These documents included waivers to permit the appellant to speak with LB about her son's treatment and condition. As the board noted in its decision, even the appellant conceded "treat[ing] minors . . . would always be an occasion for me to obviously speak to the parents and get information from them . . . [and] its no question that, at least from my perspective, that whenever there's any kind of emotional distress with a minor, that family dynamics plays a role, so it was a matter of inquiring from [LB], you know, certain information, as to what was going on." (ROR, transcript, February 1, 2008, Vol. 4, pp. 85-86.) The board had the expertise and was qualified to determine whether under these facts, the appellant acted wrongfully or in violation of the code of ethics and standards of practice.
Based on their expertise, appellant's admissions and other evidence presented, the board correctly concluded that a psychologist-patient relationship existed with LB by virtue of appellant's treatment of her 10-year-old son. Likewise, the board correctly concluded that the patient relationship existed based on appellant's treatment of LB individually and in joint sessions with her husband. Since the sexual relationship between appellant and LB began within two years of the end of her and her son's treatment, the board appropriately found appellant violated the applicable standard of care, as codified in section 10.008 of the APA's ethics code.
While the appellant denied treating LB, he admitted treating RB and EB and to engaging in a sexual relationship with LB. Appellant also admitted LB was present during two sessions with RB (ROR, transcript, February 1, 2008, Vol. 4, p. 80) but claimed that neither her attendance at RB's treatment or that of her son amounted to treatment of LB. The board was free to disregard appellant's expert opinion and rely on its own, or that of the other expert opinions submitted. Wasfi v. Dept. of Public Health, supra, 60 Conn.App. 786 ("[A]fter hearing plaintiff's testimony that he used nylon to repair the tendons in the dog's leg, the board, without needing expert testimony, and on the basis of its own experience, was competent to determine whether the plaintiff's choice of suturing material complied with professional standards of care").
Given that the APA code of ethics only precludes a psychologist from entering into a sexual relationship with a relative of a current patient and does not contain the two-year limitation on relationships with a patient's relatives, the board did not find the department sustained its burden as to the allegation relating to the treatment of RB alone as set forth in count one. (ROR, Memorandum of Decision, Vol 1, p. 6.)
IV. CLAIMS OF BIAS
Appellant raises several claims of bias against two board members. First, he claims that board chairman Monahan's decision to refer to the witnesses by their initials reflects a preexisting bias of the chairman "in which he cared more about treating the complaining witnesses with kid gloves than in preserving the rights of the appellant in a fair hearing." Reply Memorandum at pg. 7. Second, appellant argues that chairman Monahan's interruption of his cross-examination of LB to ask leading questions also displays his bias. Finally, he claims that board member Colangelo's request to go into executive session establishes his preexisting bias.
Absent countervailing proof, "members of administrative boards acting in an adjudicative capacity are presumed to be unbiased." Jutkowitz v. Dept. of Social Services, supra, 220 Conn. 100; see also Pet v. Dept. of Health Services, 228 Conn. 651, 677, 638 A.2d 6 (1994); Rado v. Board of Education, 216 Conn. 541, 556, 583 A.2d 102 (1990). The party claiming bias carries the burden of proving the disqualifying interest and/or actual bias. Pet v. Dept. of Public Health, supra, 228 Conn. 677. To prove bias as a ground for disqualification, "the plaintiff must make a showing at the hearing that the hearing officer had prejudged adjudicative facts that were in dispute." (Internal quotation marks omitted.) Elf v. Dept. of Public Health, 66 Conn.App. 410, 426, 784 A.2d 979 (2001).
The chairman's decision to refer to the witnesses by initials was intended to protect the identity of individuals whose mental health records would be discussed in a public forum, with media and video coverage. (ROR, transcript, November 28, 2007, Vol. 3, p. 161.) As the presiding officer, the chairman, pursuant to Conn. State Agencies Regs. § 19a-9-25, may set the procedures and make such rulings in the underlying proceeding before the board. When challenged as to why he was not proposing to refer to the appellant by initials, the chairman responded that appellant was not a patient and, as such, was not covered by the psychiatric or psychological privilege. The chairman's actions were designed to balance the interest in holding public hearings and protecting statutory privacy rights relating to disclosure of psychological records, including records of a minor's treatment.
Likewise, the admission of the civil complaint (ROR, Dept. Exhibit 3, Vol. 1, pp 28-44), over appellant's objection, was not in error or indicative of bias. See Jutkowitz v. Dept. of Social Services, supra, 220 Conn. 108 (administrative boards are not strictly bound by the rules of evidence).
Appellant also claimed, based on Conn. Gen. Stat. § 52-146(c), that LB and RB had waived confidentiality by introducing their psychological condition as an element of a claim or defense. While they may have waived their privacy rights as it concerned their civil complaints, they did not file this action and were witnesses in this case.
Appellant also claims that the chairman was biased because he interrupted appellant's counsel's cross-examination of LB to ask leading questions. While appellant points to other instances of alleged inappropriate cross-examination, he focuses on the cross-examination of LB. Specifically, he claims that when LB was confronted with a prior inconsistent statement, the chairman interrupted to ask leading questions suggesting appellant coached LB as to the contents of the statement.
After being confronted with an email memorandum where she stated she was never a patient of appellant and that he in no way contributed to her decision to divorce, the following exchange occurred:
Mr. Colangelo: Who did you send it to?
LB: Dr. Spitz.
Mr. Colangelo: Dr. Spitz?
LB: Yes.
Mr. Colangelo: Why?
LB: Because he asked me to help him refute my ex-husband's complaint.
Mr. Colangelo: Well, so what was your relationship with him at that time?
LB: We were having an intimate sexual relationship.
Chairperson: Right, so he — you were being coached to — to be inconsistent and to lie?
LB: We were on the telephone when I was writing this document, this email.
Chairperson: Right.
LB: I was on the phone with Dr. Spitz.
Chairperson: So you are aware that — that the statements are inconsistent and conflicting?
LB: Absolutely.
Chairperson: And so you's saying to the Board that that — you knew that you were doing that deliberately under the — under the coaching of the Respondent?
(ROR, transcript, November 28, 2007, Vol. 3, p. 210.)
Under the UAPA, an agency conducting the hearing "may conduct cross-examinations required for full and true disclosure of the facts." Conn. Gen. Stat. § 4-178(5). Appellant failed to raise an objection to the chairman's questioning of witnesses and, as such, has waived his right to object to it at this stage. See Jutkowitz v. Dept. of Social Services, supra, 220 Conn. 95; see also Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 631-32, 613 A.2d 739 (1992).
Even assuming the appellant had preserved the claim, such efforts would be unavailing. A review by the court of the colloquy between the chairman and witnesses, does not warrant a finding that the chairman was biased. While the chairman asked LB leading questions about whether appellant coached her to provide a statement refuting RB's complaint, the allegation of coaching was previously made by LB. In her statement of June 5, 2006, LB stated that "[appellant] gave her a copy of her husband's complaint and asked [her] to refute the claims." (ROR, Dept. Exhibit 11, Vol 1, p. 110.) Among the allegations in the investigative report was the claim by LB that "on May 23, 2006, [appellant] visited LB in her home and they had . . . sexual intercourse for the last time. [Appellant] told her of her husband's lawsuit and asked her to email him a statement refuting her husband's allegations explaining it would help him settle the lawsuit and save his career." (ROR, Dept. Exhibit 2, Vol 1, p. 9.) A copy of the email LB sent to appellant, at a separate email account he created to facilitate their illicit communications, was introduced into evidence. (ROR, Vol. 1, pp. 58, 198; transcript, February 1, 2008, Vol. 4, p. 61.) After the chairman's questioning, appellant continued the cross-examination of LB. The cross-examination does not suggest bias on the part of the chairman but an effort to achieve full disclosure of the facts.
Appellant also claims that by moving to executive session to inquire about summary suspension, board member Colangelo was biased and should have recused himself. At the conclusion of the hearing on November 28, 2007, Mr. Colangelo moved to executive session to obtain legal advice as to whether the board had the authority on its own motion to summarily suspend the plaintiff's license in this matter. A similar motion filed by the department at the outset of the hearing had been denied by the board. Believing the board had acted improperly, the appellant filed a complaint with the freedom of information commission (FOIC or Commission). After a hearing on April 14, 2008, the FOIC concluded the board had violated the act and there was not a valid basis to go into executive session. The FOIC did not declare the prior proceedings null and void but ordered the board to prepare minutes and reconstruct what occurred in executive session. Appellant claims Mr. Colangelo's actions suggested he had pre-determined the issues and was biased against him.
At a hearing on appellant's motion to disqualify him, Mr. Colangelo explained his actions as follows: "[W]hen I saw the complaint and then I saw your answer and I noticed that you admitted everything in count one except the last paragraph or number five it led [sic] me to believe that, hey, you're admitting all of the facts. So is there a way or is there a reason or is there a possibility that this person should be summarily suspended based on your admissions." (ROR, transcript, April 18, 2008, Vol. 4, p. 9.) He further stated that he had no hostility towards the appellant and had an open mind. Id., p. 8. When Mr. Colangelo inquired of counsel for the factual basis that established he had predetermined the matter, counsel indicated he was "inferring it." Id., p. 7. Mere suspicion of bias is insufficient to establish actual bias. See Rado v. Board of Education, supra, 216 Conn. 561. Appellant has failed to meet his burden of establishing actual bias to overcome the presumption that administrative board members acting in an adjudicatory capacity are not biased.
Appellant's reliance on Chisham v. Board of Police Commissioners, 223 Conn. 354, 613 A.2d 254 (1992), is misplaced. In Chisham, the board member whose disqualification was sought had previously lead efforts to remove Chisham as police chief and made public statements to a newspaper reporter about Chisham's conduct during the pendency of the removal hearing. Id., 367-68. As such, the Court concluded that the board member had prejudged the matter and Chisham had proven actual bias. Id., 373-74.
V. VIOLATION OF FREEDOM OF INFORMATION ACT
Appellant claims that the board's violation of the freedom of information act (FOIA) adversely affected his substantial rights under the UAPA and this appeal should be sustained. However, since the commission has the statutory authority to impose sanctions and or otherwise remedy the wrong, a violation of FOIA does not create a private right of action. See Pane v. Danbury, 267 Conn. 669, 841 A.2d 684 (2004) (FOIA does not provide a litigant with a private right of action for FOIA violations). Pursuant to § 1-206(b)(2), the commission has broad authority to impose sanctions including declare null and void any action taken at any meeting which a person was denied the right to attend. The Commission may also impose a civil penalty of "not less than twenty dollars nor more than one thousand dollars." § 1-206(b)(2). Any party aggrieved by a decision of the commission may appeal that decision under the procedures of the UAPA.
In this case, the commission did not find the violations warranted declaring the prior proceedings of the board null and void. The commission found that the board had violated FOIA by not stating the reason for going into executive session. While denying the appellant's request to declare the proceedings null and void, the commission ordered that the board provide minutes of the discussion that occurred in executive session and encouraged the board members to attend a FOIA workshop. (FOIC final decision, pp. 2-3, attached to brief of defendant.) Appellant should not obtain a result in this court that he could not obtain directly from the commission.
VI. SUFFICIENCY OF EVIDENCE
Appellant argues that the board's finding that LB was a patient is not supported by the substantial evidence in the record. Specifically, appellant points to the lack of medical records of treatment of LB and that "there is not a scintilla of evidence to support that LB was ever a patient of appellant." As noted above under the standard of review, appellant has the burden of proving that the board's factual conclusions are not supported by the weight of the substantial evidence on the record. See MacDermid, Inc. v. Dept. of Environmental Protection, supra, 257 Conn. 137.
In this case, there was substantial evidence to support the board's finding that there was a psychologist-patient relationship between appellant and LB. LB and RB both testified that they attended joint marriage counseling sessions with the appellant. (ROR, transcript, November 28, 2007, Vol. 3, pp. 77-78, 83, 88, 137-9, 172-4.) In addition, as noted by the board in its decision, there was evidence, including testimony from LB, that she received treatment from the appellant beyond those sessions she attended with her husband and son.
The absence of medical records of the treatment of LB or a form acknowledging the psychologist-patient relationship is not dispositive of the issue. There was evidence in this case that appellant was concerned about other clinicians learning of his contact with LB outside treatment sessions. When asked why she took Xanax from the appellant rather than seeing a psychiatrist for medication management, LB testified that "[she] was not seeing a psychiatrist at the time . . . and the [appellant] advised [her] not to because of the nature of their relationship" and concern that another doctor might make a complaint to the board. (ROR, transcript, November 28, 2007, Vol 1, pp 141, 171-72.) In fact, she noted that her prior psychiatrist objected to the nature of their relationship and "felt that it was extremely inappropriate for the [appellant] to be engaging in communication with me outside of scheduled counseling sessions." Id.
Given, appellant's concerns regarding knowledge by others of the nature of his relationship with LB, it is not surprising that medical records of her treatment would not exist. Their absence, in light of the substantial evidence establishing appellant's treatment of LB, does not refute the existence of the patient relationship. This court will not substitute its judgment for that of the board. The board's findings were supported by the substantial evidence in the record.
A review of all the medical records allegedly pertaining to the treatment of RB, submitted into evidence, suggest appellant kept scant records of his treatment of RB. Resp. Ex. D, Vol. 1 at pp. 130-33.
CONCLUSION
In sum, the board's findings of fact and decision to suspend appellant's license but stay the suspension and impose two years of probation was supported by substantial evidence in the record. The court finds that the board did not act unreasonably, arbitrarily, in abuse of discretion or in error of the law. Under the circumstances, this court is not allowed to substitute its judgment for that of the board. For the above reasons, the administrative appeal is dismissed.