L.B. v. State Committee of Psychologists

• Decision Date: 31 October 1995
• Docket Number: No. WD,WD
• Citation: 912 S.W.2d 611
• Parties: L.B., Respondent, v. STATE COMMITTEE OF PSYCHOLOGISTS, Appellant. 50656.
• Court: Missouri Court of Appeals

Page 611

912 S.W.2d 611

L.B., Respondent, v. STATE COMMITTEE OF PSYCHOLOGISTS, Appellant.

No. WD 50656.

Missouri Court of Appeals Western District.

Oct. 31, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 5, 1995.

Application to Transfer Denied

Jan. 23, 1996.

Jeremiah W. (Jay) Nixon, Atty. Gen., Amy Elizabeth Randles, Asst. Attorney General, Jefferson City, for Appellant.

Kent L. Brown, Jefferson City, for Respondent.

Before FENNER, C.J., P.J., BERREY, J. and TURNAGE, Senior Judge.

FENNER, Chief Judge.

The State Committee for Psychologists ("the Committee") appeals the Order of the Circuit Court of Cole County granting a permanent injunction against the Committee from filing a complaint with the Administrative Hearing Commission ("AHC") in order to establish cause to discipline the license of L.B.

In September 1989, the Committee received a complaint alleging that L.B. engaged in a sexual relationship with a patient, and that during that relationship the patient had twice attempted suicide. Though the conduct occurred from 1980 through 1983, it was alleged that the patient was not psychologically strong enough to file a complaint until 1989. The complaint suggested that during individual therapy with this patient, L.B. repeatedly hugged and kissed her, held her on his lap, fondled her, and ultimately invited her to his home where they engaged in sexual intercourse. A subsequent investigation by the Committee allegedly revealed that L.B. had engaged in sexual relationships with at least one other private practice patient and with at least three of his students or supervisees at Southwest Missouri State University.

When L.B. learned of the charges against him, he requested copies of the Committee file and an opportunity to meet with the Committee. Shortly thereafter, L.B. appeared informally before the Committee and offered evidence to refute the allegations. Counsel for L.B. indicated on numerous occasions his client's desire to avoid the filing of a formal complaint with the AHC and solicited settlement offers from the Committee.

The Committee responded on June 28, 1991, with an offer of settlement that recited some of the facts possessed by the Committee concerning L.B.'s conduct. Under the terms of this initial offer, L.B.'s license would be suspended for two years followed by a four year probationary period. During the period of suspension, L.B. was not to engage in "any counseling, guidance, psychotherapy or acts which fall under the definition of the term psychology as set forth in §§ 337.015.3 and 337.015.4, RSMo 1989, whether license is required for such acts or not." The proposal also provided that during the period of suspension and probation, "the scope and nature of [L.B.'s] practice as a professional psychologist will be under review by the State Committee of Psychologists" and that L.B. could not "work in settings that increase the [L.B.'s] risk for sexual misconduct." Further, the proposed agreement specifically stated that "[L.B.'s] work setting must be approved by the State Committee of Psychologists" during the period of suspension and probation. Finally, the proposed agreement required L.B. to notify his patients that his license was under probation during such period, including written verification from each patient of such notification, and prevented L.B. from serving as a supervisor for any psychological trainee, intern, resident, assistant, or any person under supervision during the course of obtaining licensure as a psychologist, professional counselor, or social worker.

The Committee provided specific instructions for acceptance of the initial offer. L.B. was to sign on the space provided on the last page of the document and return it to the Committee, with the agreement taking effect on the date the Committee added its signature to the document. The Committee also provided a July 15, 1991 deadline for acceptance of the offer. L.B. did not accept this offer.

Counsel for L.B. responded to the initial offer of settlement by letter dated July 8, 1991, stating that he had reviewed the proposal with his client, and "[a]fter reviving him, [told] him that this was just the starting point of discussions toward possible settlement...." The letter continued, with L.B. proposing to settle the claims against him by agreeing not to contest certain charges in return for a probationary period retroactive to the date of the alleged violations "solely to get [the] matter concluded without any additional legal and emotional expense." Another letter followed from counsel for L.B. on July 12, 1991, indicating his understanding that the proposal set forth by L.B. in the July 8th letter was being submitted to the Committee for consideration.

A meeting between counsel for each party apparently occurred on July 31, 1991 (it is unclear whether L.B. or a representative of the Committee was in attendance at this meeting). Counsel for the Committee followed up this meeting with a letter on the same date, stating the following [M]y understanding of [L.B.'s] "counteroffer" to be considered by the State Committee of Psychologists ... is as follows:

[L.B.'s] psychologist license be [sic] suspended for two (2) years followed by five (5) years probation. The period of suspension is stayed or suspended subject to [L.B.'s] successful completion of the five year probation period.

In addition, [L.B.] agrees to all of the terms of discipline as set out in the original offer ... except for [the requirement] that he inform his clients/patients that he is under probation with the Committee.

Counsel for the Committee requested that L.B. notify her if any part of her understanding was incorrect.

Counsel for L.B. responded by letter dated August 1, 1991. The substance of this response is as follows:

Just so there is no misunderstanding, what I would recommend to [L.B.] to resolve this complaint is as follows:

1. He would not contest a violation consistent with his testimony before the [Committee].... The wording must be such so as to make clear he denies all charges and will not contest this one violation only to conclude the matter and avoid additional legal expenses. All other charges would be dismissed.

2. The imposition of any suspension of his license would be suspended pending successful completion of a five-year probationary period.

. . . . .

4. During this five-year probationary period he would not supervise post-masters or post-doctoral students for licensure purposes.

How the preceding plugs into terms A through O on pages 15 through 19 [excepting the term requiring him to notify his patients of his suspension and receive a written verification of such notification] would seem to be just a matter of wording.

It appears from the record that no further written communications occurred between the parties until October 1991.

On October 18, 1991, counsel for the Commission informed L.B. that the Commission had voted to provide a counteroffer in an attempt to reach a consent agreement (necessarily implying that L.B.'s offer of settlement had been rejected). The counteroffer consisted of two alternative terms:

1. Agree to suspend imposition of sentence and five years probation. The agreement would include allegations involving the dual relationship with [client 1] and the bartering relationship with [client 2], an attorney (who was also a patient); OR

2. Agree to a two year suspended execution of sentence with five years probation, but include only the allegation of the relationship with [client 1].

This offer was also unacceptable to L.B. On November 15, 1991, a letter from L.B.'s counsel to counsel for the Committee provided a new counteroffer of settlement:

[L.B.] would enter into an agreement by which he does not contest, although he also does not admit any liability for, the charge relating to his relationship with [client 1]; imposition of any discipline, particularly any suspension, would be suspended and in essence he would serve a probationary period of five years.

The details and exact wording of the ultimate agreement need to be worked out but I believe ... we understand our respective positions and will be able to draft an appropriate agreement accordingly.

The letter concluded with L.B. expressing his hope to have the matter concluded by the end of the year. At this point, there is no indication from L.B. that he objected to provisions requiring Committee approval of his work setting.

On December 20, 1991, counsel for the Committee wrote L.B. and informed him that his latest counteroffer had been rejected and that the previous offer of the Committee was being re-extended. L.B. responded by letter dated January 13, 1992, that does not expressly reject or accept the Committee's offer, but lays out further concerns with the settlement as proposed As to some of the other details, I would make the following observations preliminary to getting together to try to work out the total agreement:

1. The allegations which he will not contest are those as to [client 1], his current wife, who actually was a supervisee and not a student of his. This distinction is important because of his continuing relationship with the college, one which he does not want affected by the disposition herein.

2. As a result of this concern expressed above, execution of the final agreement will be conditional upon review and confirmation by the college that it will in no way jeopardize his position there.

3. All other pending complaints will be dismissed with prejudice and no existing complaints may serve as a basis for a claim that the terms of probation had been breached.

4. The agreement and terms of probation shall not be construed to take away any other legal rights [L.B.] might have.

. . . . .

6. The general terms of the agreement would be couched along the lines of my letter of October 18, 1991.

This is the first occasion on which L.B. mentioned needing to clarify the terms...