Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors Bd. of Examiners
| Decision Date | 05 November 2014 |
| Docket Number | 14-102 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | GLENN M. HEBERT v. LOUISIANA LICENSED PROFESSIONAL VOCATIONAL REHABILITATION COUNSELORS BOARD OF EXAMINERS AND SY ARCENEAUX |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20064643
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.
Cooks, J., dissents and assigns reasons.
AFFIRMED.
R. Scott Iles
Glenn Hebert
Louisiana Licensed Professional Vocational Rehabilitation Counselors
Sy Arceneaux
This matter is once again before a panel of this court based on the appeal of plaintiff, Glenn M. Hebert (Mr. Hebert), of the trial court's ruling granting summary judgment in favor of both the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners (Board) and Mr. Sy Arceneaux (Mr. Arceneaux) dismissing Mr. Hebert's last remaining claim for abuse of process. For the following reasons, we affirm.
This litigation stems from a complaint made to the Board by Mr. Arceneaux, a vocational rehabilitation counselor (VRC) against Mr. Hebert, who is also a VRC. Mr. Arceneaux alleged that Mr. Hebert violated La. Admin. Code tit. 46, pt. LXXXVI, §1604(A)(6), which provides, "Licensed rehabilitation counselors will not discuss the competency of other rehabilitation counselors or agencies (including judgments made, methods used or quality of rehabilitation plans) in a disparaging way with their clients."1
Mr. Arceneaux stated in his complaint to the Board that Mr. Hebert had written two separate letters to Mr. Arceneaux, which were also sent to his client, Mr. Julius Jeansonne, stating that Mr. Hebert found that the rehabilitation work performed by Mr. Arceneaux on behalf of Mr. Jeansonne was substandard and calling Mr. Arceneaux's services "sham rehabilitation."2
Mr. Arceneaux, after receiving Mr. Hebert's first letter dated February 26,2004, sought to resolve the issue by requesting, in correspondence dated March 22, 2004, that Mr. Hebert rescind his February 26, 2004 correspondence. Mr. Hebert refused to rescind his original correspondence and in an April 1, 2004 response to Mr. Arceneaux, also copying Mr. Jeansonne, stated, "I will not rescind this correspondence since I feel that all of the points in the letter are accurate." On May 15, 2004, Mr. Arceneaux filed an ethical complaint against Mr. Hebert with the Board.
On June 17, 2004, the Ethics Committee of the Board informed Mr. Arceneaux that the Board had accepted his complaint against Mr. Hebert and would allow Mr. Hebert the opportunity to respond before reviewing the complaint and making a determination of what, if any, additional action was required. Mr. Hebert responded on June 23, 2004. In correspondence dated September 20, 2004, the Ethics Committee of the Board found Mr. Hebert in "violation of Canon 4, Rule 4.7 of the LLPVRC Code of Professional Ethics for Licensed Rehabilitation Counselors" and informed him of his right to appeal the decision within thirty days.3
Pursuant to the rules governing ethical complaints, by letter dated September 28, 2004, Mr. Hebert cited Maxie v. Brown Ind., Inc., 95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La. 10/6/95), 661 So.2d 469, and disputed the Ethics Committee's interpretation of the client-counselor relationship, asserting that Mr. Jeansonne was not Mr. Arceneaux's client but that Mr. Arceneaux's true client was the LWCC.4 Mr. Hebert requested and was granted ahearing, which took place on January 6, 2005.
Although the hearing was held as a joint session of both the Ethics Committee and the Board, on April 21, 2005, only the Ethics Committee rendered a decision and recommended to the Board that it sanction Mr. Hebert for a violation of La. Admin. Code tit. 46, pt. LXXXVI, §1604(A)(6). The April 21, 2005 Ethics Committee decision and recommendations were subject to an additional appeals process pursuant to La. Admin. Code tit. 46, pt. LXXXVI, Chapter 17.
Mr. Hebert timely requested an appeal of the April 21, 2005 Ethics Committee's decision and recommendations to the Board. Pursuant to Mr. Hebert's request, an appeal panel was appointed to review the record in this matter. Subsequent to their review of the record, the appeal panel notified the Board that it agreed with the April 21, 2005 decision and recommendations of the Ethics Committee, which then became the final decision of the Ethics Committee.
The final decision of the Ethics Committee was then submitted to the Board for its consideration. On March 7, 2005, the Board found that a counselor-client relationship existed between Mr. Arceneaux and Mr. Jeansonne, and that the conduct of Mr. Hebert was in violation of La. Admin. Code tit. 46, pt. LXXXVI, §1604(A)(6). The Board also discussed and distinguished Mr. Hebert's contention that the Board was ignoring Louisiana jurisprudence which allegedly supported his conclusion that Mr. Jeansonne was not Mr. Arceneaux's client, relying instead onthe workers compensation statutes and the regulations adopted by the Board governing the client-counselor relationship.
As a result of the ethical violation, the Board issued an official reprimand to Mr. Hebert which required him to complete, within six months of the final administrative decision of the Board, a pre-approved course of study in ethics related to rehabilitation counseling, or risk further sanctions.
Although the final decision of the Board was subject to review pursuant to La.R.S. 49:950 et seq., Mr. Hebert did not appeal the final administrative decision of the Board, but instead filed suit in the Fifteenth Judicial District Court against the Board and Mr. Arceneaux for a writ of mandamus and damages claiming that Mr. Arceneaux and the Board "conspired through an abuse of process to obtain ethical action by way of an ethical complaint." Mr. Hebert sought damages for libel, abuse of process, and dismissal of the ethical complaint.
Mr. Arceneaux filed a motion to strike pursuant to La.Code Civ.P. art. 971. The trial court granted his motion, dismissing Mr. Arceneaux from the litigation. In light of Mr. Arceneaux's dismissal, the trial court also granted the Board's exception of improper venue and dismissed the Board without prejudice but did not address the other exceptions filed by the Board.
Mr. Hebert appealed the trial court's ruling, which resulted in the first opinion in this case by a panel of this court in Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors and Sy Arceneaux, 07-610 (La.App. 3 Cir. 1/23/08), 974 So.2d 824 (Hebert I). In Hebert I, this court reversed the trial court's judgment dismissing Mr. Hebert's claims against Mr. Arceneaux and the dismissal of the Board based on the exception of venue. Hebert I was remanded to the district court in order "to allow Mr. Hebert to amend his pleadings to particularizethe claims and facts demonstrating a constutional deprivation under the color of state law and for further proceedings consistent with this opinion."
The Board and Mr. Arceneaux sought a writ to the supreme court, which ultimately vacated and remanded Hebert I to this court in Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors and Sy Arceneaux, 08-412, (La. 5/9/08), 981 So.2d 21. The opinion on remand instructed that the appellate court's discussion of the constitutionality of the Board's ethical code was not appropriate, as the issue had not been raised by the parties in the district court and such an issue could not be raised for the first time on appeal. Further, "the constitutional challenge must be specially pleaded and the grounds for the claim particularized" in the district court. Id. The Louisiana Supreme Court further instructed this court "to address the applicability of La.Code Civ.Proc. art. 971 based on the showing made, i.e., plaintiff's petition as presently drafted."
In the opinion on remand, Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors and Sy Arceneaux, 07-610 (La. App. 3 Cir. 3/4/09), 4 So.3d 1002, writ denied, 09-750, (La. 5/22/09), 9 So.3d 144 (Hebert II), a panel of this court dismissed Mr. Hebert's defamation claim pursuant to La.Code Civ.P. art. 971. However, the panel allowed Mr. Hebert to maintain his abuse of process claim based on the instructions of the Louisiana Supreme Court requiring this court to "address the applicability of Mr. Arceneaux's motion to strike pursuant to La.Code Civ.Proc. art. 971."
In Hebert II, the panel concluded that Mr. Hebert had alleged in his petition a conspiracy between the Board and Mr. Arceneaux sufficient to state "a claim for abuse of process, the merits of which we are not called on to address at this time." Hebert II, 4 So.3d at 1011. In footnote two, the panel further stated, Hebert II was then remanded to the district court for further proceedings consistent with the opinion.
Subsequent to the remand to the district court, Mr. Hebert again amended his petition to allege a federal civil rights violation. The case was then removed to the United States District Court for the Western District of Louisiana (USDC).
The USDC dismissed Mr. Hebert's civil rights claim and remanded Mr. Hebert's remaining state law claim of abuse of process back to the Fifteenth Judicial District Court. Both defendants, Mr. Arceneaux...
To continue reading
Request your trial