Toth v. Disciplinary Bd. of the Supreme Court of North Dakota, 960334

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: PER CURIAM; VANDE WALLE
• Citation: 562 N.W.2d 744
• Parties: JoAnn C. TOTH, Petitioner, v. DISCIPLINARY BOARD OF THE SUPREME COURT OF NORTH DAKOTA, Respondent. Civil
• Docket Number: No. 960334,960334
• Decision Date: 22 April 1997

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562 N.W.2d 744 1997 ND 75 JoAnn C. TOTH, Petitioner,
v.
DISCIPLINARY BOARD OF THE SUPREME COURT OF NORTH DAKOTA, Respondent. Civil No. 960334. Supreme Court of North Dakota. April 22, 1997.

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James S. Hill (argued), of Zuger Kirmis & Smith, Bismarck, for petitioner.

Paul W. Jacobson (argued), Assistant Disciplinary Counsel, and Vivian E. Berg (on brief), Disciplinary Counsel, Bismarck, for respondent.

PER CURIAM.

¶1 Assistant Attorney General JoAnn C. Toth appealed from a Disciplinary Board admonishment, under informal proceedings, for her "misrepresentation" and failure to honor a confidentiality clause in a settlement agreement. We conclude there is no clear and convincing evidence Toth committed a misrepresentation

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within the meaning of N.D.R.L.D. 1.2(A)(3), and we dismiss the complaint.

¶2 Toth represented the State Board of Chiropractic Examiners (Chiropractic Board) in a professional disciplinary action brought against Dr. Jeffry T. Vendsel, a Grand Forks chiropractor. The Chiropractic Board sought to suspend or revoke Vendsel's license, alleging in its October 1993 administrative complaint:

5. On or between January 1989 and March 1993, the respondent engaged in unprofessional, dishonorable, or unethical conduct by willfully sexually abusing patients and committing acts involving moral turpitude. Dr. Jeffry T. Vendsel did engage in sexual acts with female patients. Such acts include caressing his patients['] breasts and buttocks, as well as participating in oral sex and intercourse with patients.

6. In February of 1993, Dr. Vendsel did willfully intimidate a patient by threatening to file a slander lawsuit against her if she discussed the sexual acts which had taken place between them.

Attorneys Shirley Dvorak and Ronald Galstad represented Vendsel in the administrative proceedings.

¶3 In September 1994, the Board and Vendsel entered into a settlement agreement providing for a six-month suspension of Vendsel's North Dakota chiropractic license, followed by reinstatement if Vendsel met a number of conditions. The settlement agreement also contained a confidentiality clause negotiated by the parties' attorneys:

f. This Settlement Agreement is considered confidential except as otherwise provided by North Dakota Law and paragraph (g) of this agreement.

g. The suspension of Dr. Vendsel's license shall be reported by the Board in compliance with the ACA Rules of Ethics. That Dr. Vendsel will report the suspension to the State of Minnesota and if necessary, it will also be reported by the Board.

¶4 In October 1994, Toth received telephone calls, forwarded to her office by the Chiropractic Board's secretary, from members of the Grand Forks media requesting information about the Vendsel matter. Toth visited with the Attorney General and Solicitor General before responding to any questions from the first caller, Rose Brunsvold, a reporter for a Grand Forks television station. Toth said "both agreed that under the open records law I could discuss information consistent with the settlement agreement, and/or I could release copies of the settlement." Toth then answered several of Brunsvold's questions, describing the allegations in the administrative complaint and the terms of the settlement agreement. In describing the allegations of the complaint, Toth told Brunsvold:

That conduct ranged anywhere from touching breasts and nipples to engaging in intercourse. Now I'm not saying that he did that, for example, engaged in intercourse with six of the victims, just that with six people the conduct was anywhere within that range.

¶5 Toth referred reporters to the Grand Forks County State's Attorney regarding possible criminal charges against Vendsel. She also referred them to two attorneys who were representing a former patient of Vendsel in a civil action against him.

¶6 On October 26, 1994, a Grand Forks television station ran the following story on its evening newscast:

Pat Sweeney: Good Evening. A Grand Forks chiropractor has had his license suspended for allegedly sexually abusing patients.

Rose Brunsvold: JoAnn Toth of the North Dakota Attorney General's office says six women complained to the State Board of Chiropractic Examiners that Dr. Jeffry Vendsel engaged in sexual abuse with six female patients or threatened to sue them for libel if they talked about what allegedly happened in his clinic at 2812 17th Avenue South in Grand Forks. Vendsel's license has been suspended for at least six months. In March he must meet several criteria in order to get it back. The complaints range from touching breasts to allegedly engaging in sexual intercourse. A civil law suit was filed against him for malpractice alleging sexual abuse against a

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16 year old girl. It was filed in Grand Forks District Court in August but was settled out of Court in September. Dr. Vendsel could not be reached for comment today.

¶7 Attorney Dvorak filed a grievance with the Disciplinary Board alleging Toth had "flagrant[ly]" violated the confidentiality clause of the settlement agreement. The matter was forwarded to a member of the Inquiry Committee West for investigation.

¶8 Toth filed a response to the complaint claiming she did not violate the confidentiality clause because she "did not initiate contacts with" the press, but merely made appropriate responses "to inquiries from the press" concerning "open records which could rightfully be disclosed." An affidavit of a paralegal employed with the Attorney General's Office who was present during settlement negotiations said the parties understood the confidentiality clause to mean "we would not initiate any contact with the press, but would answer any questions the press asked us if they contacted our office." Attorney Galstad said in a letter to the investigator it was his "understanding of the agreement reached that Ms. Toth would not give out any information regarding this matter unless she received a request pursuant to the North Dakota open records laws and then she would only provide the appropriately requested materials. It was also my understanding that she would not give out any verbal information."

¶9 The Inquiry Committee West found "Toth did not honor a confidentiality provision in a settlement agreement and that this was a misrepresentation" in violation of N.D.R.L.D. 1.2(A)(3), and determined discipline in the form of an admonition was the appropriate sanction. Toth filed a written request for Disciplinary Board review under N.D.R.L.D. 3.1(D)(8). In May 1996 the Disciplinary Board approved the decision of the Inquiry Committee West to issue Toth an admonition. We granted Toth's petition for leave to appeal to this Court under N.D.R.L.D. 3.1(D)(8).

¶10 Both parties assume this Court's standard for reviewing the Disciplinary Board's decision to issue an admonition upon finding a misrepresentation in an informal proceeding is simply to decide whether the Disciplinary Board acted arbitrarily, capriciously, or unreasonably. N.D.R.L.D. 3.1(D)(8),...