Fred H. Wright, Ph.D. v. Tennessee Board of Examiners in Psychology

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST 3, 2004 Session

FRED H. WRIGHT, Ph.D v. TENNESSEE BOARD OF EXAMINERS IN

PSYCHOLOGY

Direct Appeal from the Chancery Court for Davidson County

No. 02-3172-1 Irvin H. Kilcrease, Jr., Chancellor

No. M2003-01654-COA-R3-CV - Filed December 28, 2004

The Tennessee Board of Examiners in Psychology received a complaint from the patient of a

psychologist alleging the psychologist breached the ethical duty of confidentiality by disclosing

information to the patient’s sister. During the course of the investigation, the psychologist revealed

that he had disclosed confidential information about the same patient to another psychologist

romantically involved with the patient. The board filed charges against the psychologist alleging

violations of the ethical rules governing confidentiality and documentation of therapy. Following

an administrative hearing, the board placed the psychologist’s license on probation for two years

subject to two conditions: (1) he complete twenty hours of continuing education training and (2) his

practice be supervised during the two year probationary period by another psychologist. In addition,

the board assessed a $1,000.00 civil penalty against the psychologist. The psychologist appealed the

board’s decision to the Chancery Court of Davidson County which affirmed the board’s decision.

The psychologist appealed to this Court. We affirm.

Tenn. R. App. P.; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY

M. KIRBY , J., joined.

Erskine P. Mabee, Chattanooga, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Sue A. Sheldon, Senior Counsel, Nashville, TN,

for Appellee

OPINION

Factual Background and Procedural History

Fred H. Wright, Ph.D. (“Appellant” or “Dr. Wright”) has been a licensed psychologist

practicing in the State of Tennessee (the “State”) since May of 1973, with a majority of his

professional career spent practicing in Chattanooga, Tennessee. Except for the present action, the

State has never taken disciplinary action against Dr. Wright or his license.

Dr. Wright began treating C.W.B.1 in 1976 following her release from a mental health

facility. When C.W.B. came into Dr. Wright’s care, she presented mental health problems related

to depression, suicidal ideation, and violent eruptions against her husband. During the course of

treatment, Dr. Wright tried to meet with C.W.B. on a weekly basis, but their visits were not

consistent because C.W.B. lived outside Tennessee. Dr. Wright treated C.W.B. from 1976 until

1997, approximately twenty-one years, which he described as the longest therapeutic relationship

he ever had with a patient.

In November 1997, C.W.B. abruptly ended her relationship with Dr. Wright. Just prior to

ending their relationship, C.W.B. learned that Dr. Wright received a telephone call from C.W.B.’s

sister asking his opinion as to whether C.W.B. would qualify for Social Security disability benefits.

C.W.B. and her sister had a relationship which Dr. Wright described as “terrible, hostile.” Dr.

Wright conveyed to C.W.B.’s sister that he felt C.W.B. could qualify for disability benefits and

commented on C.W.B.’s psychological and physical status. Dr. Wright admits that C.W.B. did not

give him prior authorization to reveal to the sister that he was C.W.B.’s treating psychologist or to

discuss her treatment with the sister. In fact, Dr. Wright received telephone calls from C.W.B.’s

mother during the course of treating C.W.B., but he refused to reveal any information to the mother.

According to Dr. Wright, he felt that, by speaking with C.W.B.’s sister, he could ameliorate any

animosity between them.

After learning of Dr. Wright’s conversation with her sister, C.W.B. filed a complaint against

Dr. Wright with the Tennessee Board of Examiners in Psychology (the “Board”). During the course

of the Board’s investigation, Dr. Wright voluntarily disclosed to the investigator that he had

previously discussed C.W.B. with a fellow psychologist as well. Apparently C.W.B. had been

engaged in a romantic relationship with another psychologist, Dr. Jim Pruett (“Dr. Pruett”). Dr.

Pruett called Dr. Wright and asked, “Is she capable of killing me?” Dr. Wright assured Dr. Pruett

that he did not feel C.W.B. was capable of murder.

During the course of the investigation, the Board’s investigator also arrived at the conclusion

that Dr. Wright had failed to maintain adequate records on C.W.B. during the course of her

1

For purposes of this appeal we will refer to the patient by her initials in order to protect her confidentiality

and privacy.

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treatment. On May 2, 2002, the Tennessee Department of Health (the “Department”) filed a Notice

of Charges and Memorandum for Assessment of Civil Penalties against Dr. Wright. The Department

alleged that Dr. Wright’s conduct constituted violations of the Tennessee Psychology Practice Act,

codified at section 63-11-101 et seq. of the Tennessee Code, as well as specific rules governing

confidentiality.

On August 7, 2002, the Board conducted a hearing pursuant to the Tennessee Uniform

Administrative Procedures Act (“UAPA”), codified at section 4-5-101 et seq. of the Tennessee

Code.2 Dr. Wright appeared before the Board pro se. At the administrative hearing, Dr. Wright

freely admitted that, by speaking with the sister and fellow psychologist regarding C.W.B., he

breached the ethical rules governing psychologist/patient confidentiality. In addition, Dr. Wright

freely admitted that he failed to satisfy the requirements in the psychology profession regarding

documentation of therapy in the case of C.W.B. In fact, Dr. Wright also stated that he presently

treats thirty-five to forty patients, and he admitted that, over the past twenty-one years, he failed to

adequately document their therapy as well.

At the conclusion of the administrative hearing, the Board issued an order containing its

findings of fact, conclusions of law, and policy statement. The Board’s order contained, in relevant

part, the following sanctions:

1. Respondent’s license to practice as a psychologist in the State

of Tennessee is hereby placed on PROBATION for a period

of two (2) years, subject to the following terms and

conditions:

(a) Supervision. Within thirty (30) days from the

date of the entry of this Order, Respondent

must provide to a representative of the Board

the name and curriculum vitae of a

supervising psychologist (“Supervisor”). . . .

The Supervisor shall monitor

Respondent’s practice with respect to

documentation practices and ethical decision

making. Any and all costs relating to this

supervision shall be the sole responsibility of

the Respondent.

Respondent shall submit or cause to be

submitted reports from the Supervisor

regarding Respondent’s performance by June

30th and December 31st of each year. Failure

2

The Tennessee Psychology Practice Act provides that “[a]ll proceedings for disciplinary action against a

licensee or certified person under this chapter shall be conducted in accordance with the Uniform Administrative

Procedures Act, compiled in title 4, chapter 5.” T EN N . C O D E A N N . § 63-11-216 (2003).

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to submit or have such reports submitted in a

timely manner shall be considered a violation

of this Order.

....

The foregoing requirement for

supervision of Respondent’s practice shall

remain in effect for the duration of the

probationary period of two (2) years under this

Order.

(b) Continuing education. Within the two (2)

year probationary period, Respondent shall

complete twenty (20) hours of continuing

education in the areas of ethics and

professional risk management.

2. Respondent is hereby Ordered to pay two (2) Type B Civil

Penalties in the amount of Five Hundred Dollars ($500.00),

for a total of One Thousand Dollars ($1,000.00) in civil

penalties, representing two (2) violations of the Tennessee

Psychology Practice Act or regulations or both in such a

manner as to impact directly on the care of patients or the

public. . . .

Dr. Wright subsequently filed, pursuant to section 4-5-322 of the Tennessee Code, a Petition for

Review and for Stay of Final Order in the Chancery Court of Davidson County.3 Dr. Wright alleged

that the Board violated section 4-5-322(h)(3) through (5) of the Tennessee Code by rendering an

arbitrary and capricious decision not supported by the evidence, as well as section 4-5-314 of the

Tennessee Code by failing to make specific findings of fact, failing to set forth specific conclusions

of law, and failing to identify an independent policy reason for both. On May 12, 2003, the chancery

court issued a Memorandum Opinion, which it later incorporated into a Final Order, affirming the

decision of the Board.

Dr. Wright, pursuant to section 4-5-323(a) of the Tennessee Code, appealed the decision of

the chancery court to this Court, presenting the follow issues, as we perceive them, for our review:

3

The chancellor entered an order on November 21, 2002, pursuant to section 4-5-322(c) of the Tennessee Code,

staying the Board’s decision as to the probation of Dr. W right’s license, the supervision of Dr. W right’s practice, and

the $1,000.00 civil penalty. Following the issuance of the chancery court’s order, Dr. W right filed a motion, pursuant

to Rule 62 of the Tennessee Rules of Civil Procedure, asking the chancellor to stay enforcement of the Board’s sanctions.

Despite the Board’s objection, the chancery court entered an order continuing the stay from its prior ruling with the

condition that Dr. W right post a bond in the amount of $1,000.00 to be forfeited in the event of future ethical violations.

The chancery court did not stay the requirement that Dr. W right complete twenty hours of continuing education. At the

time this case was heard on appeal, Dr. W right had completed the continuing education requirement.

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I. Whether the Tennessee Board of Examiners in Psychology rendered an arbitrary and

capricious decision, characterized by an abuse of discretion, by handing down sanctions

against Dr. Wright that were clearly excessive given his unblemished record as a

psychologist practicing in the State of Tennessee;

II. Whether the decision reached by the Tennessee Board of Examiners in Psychology is

supported by substantial and material evidence given that the patient did not testify at the

hearing, and the administrative panel did not adequately discuss the factors set forth in Tenn.

Comp. R. & Reg. 1180-1-.10 (2002);

III. Whether the Tennessee Board of Examiners in Psychology failed to adequately identify

independent policy reasons for its findings of fact and conclusions of law and the sanctions

imposed against Dr. Wright; and

IV. Whether the proceedings before the administrative panel were unlawful because a portion

of the proceedings was held outside the presence of Dr. Wright and was not recorded.

For the reasons set forth herein, we affirm.

Standard of Review

“The scope of review in the trial court of an order of an administrative agency is defined

in [section 4-5-322(h) of the Tennessee Code],” Metro. Gov’t of Nashville & Davidson County v.

Shacklett, 554 S.W.2d 601, 604 (Tenn. 1977), which provides:

(h) The court may affirm the decision of the agency or remand the

case for further proceedings. The court may reverse or modify the

decision if the rights of the petitioner have been prejudiced because

the administrative findings, inferences, conclusions or decisions are:

(1) In violation of constitutional or statutory

provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of

discretion; or

(5) Unsupported by evidence which is both substantial

and material in the light of the entire record.

In determining the substantiality of evidence, the court shall take into

account whatever in the record fairly detracts from its weight, but the

court shall not substitute its judgment for that of the agency as to the

weight of the evidence on questions of fact.

Tenn. Code Ann. § 4-5-322(h) (2003). The statute makes clear that judicial review of the agency’s

decision is not de novo in the chancery court. Shacklett, 554 S.W.2d at 604. The scope of review

in this Court is the same as in the chancery court, and we must review the case under the same

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statutory criteria. Humana of Tenn. v. Tenn. Health Facilities Comm’n, 551 S.W.2d 664, 668 (Tenn.

1977); see also Mosley v. Tenn. Dep’t of Commerce and Ins., No. M2003-01998-COA-R3-CV, 2004

Tenn. App. LEXIS 784, at *19 (Tenn. Ct. App. Nov. 22, 2004) (citation omitted); Estate of Street

v. State Bd. of Equalization, 812 S.W.2d 583, 585 (Tenn. Ct. App. 1990) (citations omitted). “Our

review of a trial court’s decision with respect to agency findings is essentially a determination of

whether the trial court correctly applied the standard of review set forth [in section 4-5-322(h) of the

Tennessee Code].” Wilson v. Univ. of Tenn. at Chattanooga, No. M2000-02573-COA-R3-CV, 2001

Tenn. App. LEXIS 942, at *10–11 (Tenn. Ct. App. Dec. 28, 2001).

The Board’s Selection of Sanctions Against Dr. Wright

We begin with Dr. Wright’s argument that the sanctions imposed by the Board are

arbitrary and capricious, as well as clearly excessive, in light of the facts presented to the Board. Dr.

Wright points to his more than forty years of professional practice without a disciplinary infraction

related to confidentiality until C.W.B. filed the complaint at issue with the Board. Dr. Wright

characterizes his breach of confidentiality in regard to C.W.B.’s sister as a “spur of the moment

response” that was “meant to allay some of the fears and animosity of the family situation.” At the

hearing before the Board, Dr. Wright readily admitted to the two breaches of confidentiality

regarding C.W.B., but on appeal he contends that the sanctions imposed by the Board are not

warranted given the following facts: (1) there has been no showing of continuous ethical violations,

(2) there is no history of sustained complaints for similar violations, (3) there is no evidence that

such conduct will continue in the future, and (4) since the violations occurred in 1997, there have

been no subsequent ethical violations of any kind.

In reviewing the Board’s decision, this Court “shall not substitute its judgment for that of the

agency as to the weight of the evidence on questions of fact.” Tenn. Code Ann. § 4-5-322(h)(5)

(2003) (emphasis added). However, “agency decisions with adequate evidentiary support may still

be arbitrary and capricious if caused by a clear error in judgment.” Jackson Mobilphone Co., Inc.

v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110 (Tenn. Ct. App. 1993). In determining whether

the Board’s decision in this case was “arbitrary and capricious,” we are mindful that:

A reviewing court should not apply Tenn. Code Ann. § 4-5-

322(h)(4)'s "arbitrary and capricious" standard of review

mechanically. In its broadest sense, the standard requires the court to

determine whether the administrative agency has made a clear error

in judgment. American Paper Inst. v. American Elec. Power Serv.

Corp., 461 U.S. 402, 413, 103 S.Ct. 1921, 1928, 76 L.Ed.2d 22

(1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.

402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971). An arbitrary

decision is one that is not based on any course of reasoning or

exercise of judgment, State ex rel. Nixon v. McCanless, 176 Tenn.

352, 354, 141 S.W.2d 885, 886 (1940), or one that disregards the

facts or circumstances of the case without some basis that would lead

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a reasonable person to reach the same conclusion. Wagner v. City of

Omaha, 236 Neb. 843, 464 N.W.2d 175, 180 (1991); Ramsey v.

Department of Human Servs., 301 Ark. 285, 783 S.W.2d 361, 364

(1990).

Id. at 110–11.

The Board concluded that Dr. Wright violated section 63-11-215(b)(1) of the Tennessee

Code by engaging in “unprofessional, dishonorable, and unethical conduct.” Tenn. Code Ann. § 63-

11-215(b)(1) (2003). In addition, the Board found that Dr. Wright violated the following ethical

rules governing the psychology profession:

(1) General Standards. These general standards are applicable to

the professional and scientific activities of all licensees or

certificate holders.

....

(w) Documentation of professional and scientific

work.

1. Licensees or certificate holders

appropriately document their

professional and scientific

work in order to facilitate

provisions of services later by

them or by other professionals,

to ensure accountability and to

meet other requirements of

institutions or the law.

....

(4) Privacy and confidentiality. These standards are potentially

applicable to the professional and scientific activities of all

licensees and certificate holders.

....

(b) Maintaining confidentiality. Licensees or

certificate holders have a primary obligation

and take reasonable precautions to respect the

confidentiality rights of those with whom they

work or consult, recognizing that

confidentiality may be established by law,

institutional rules or professional or scientific

relationships.

Tenn. Comp. R. & Reg. 1180-1-.09 (2002).

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This Court extends substantial deference to the selection of an appropriate sanction by an

agency charged with the regulation of professional conduct. See McClellan v. Bd. of Regents of State

Univ., 921 S.W.2d 684, 693 (Tenn. 1996) (stating that “[t]he appropriate remedy is peculiarly within

the discretion of the [agency]”). The legislature vested the Board with the power to:

(1) Deny an application for a license or certificate to any applicant;

(2) Permanently or temporarily withhold issuance of a license or

certificate;

(3) Suspend, limit or restrict a previously issued license or certificate

for such time and in such a manner as the board may determine;

(4) Reprimand or take such action in relation to disciplining an

applicant or licensee or certified person as the board in its discretion

may deem proper; or

(5) Permanently revoke a license or certificate.

Tenn. Code Ann. § 63-11-215(a) (2003). The scope of our review of the sanctions selected by the

Board in this case can be stated as follows:

The general rule that the courts will not ordinarily review the

exercise of discretion entrusted to administrative bodies applies with

respect to various discretionary acts of administrative bodies, such as

in connection with licenses, permits, or certificates.

Judicial review of the imposition of sanctions, including the

assessment of penalties, by an administrative agency exercising

discretionary power, extends, and is limited to, the determination of

whether there has been an abuse of discretion, and whether the agency

has made an allowable judgment in its choice of remedy. The court

may not interfere with the sanction or penalty, or set it aside, unless

there has been an abuse of discretion, it is unwarranted in law or

without justification in fact, or the penalty is so clearly

disproportionate to the offense or completely inequitable in the light

of the surrounding circumstances as to constitute an abuse of

discretion, or be shocking to the sense of fairness. Since it is the

responsibility of the agency and not of the court to impose a sanction

or assess a penalty, the court should not substitute another one for that

imposed by the agency which is within the allowable limits of the

statute.

73A C.J.S. Public Administrative Law and Procedure § 417 (2004); see also Woodard v. U.S., 725

F.2d 1072, 1077 (6th Cir. 1984).

At the close of the administrative hearing, the Board engaged in a lengthy discussion of the

appropriate penalty for Dr. Wright’s conduct, particularly regarding the form of supervision to

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impose upon Dr. Wright. It is true, as Dr. Wright points out, that during their deliberations one of

the Board members noted the isolated nature of the alleged violations. However, the Board members

also expressed concerns over the seriousness of the ethical breaches and the apparent inability on

Dr. Wright’s part to recognize appropriate professional boundaries with his patients. Some board

members did not feel the breaches of confidentiality were “spur of the moment incidences,” and they

questioned Dr. Wright’s approach to the confidentiality and documentation rules governing the

profession. Regarding documentation of therapy sessions, Dr. Wright acknowledged that the

purpose behind the documentation rule is to allow another psychologist to pick up a patient’s therapy

where he left off in the event he could no longer continue therapy. However, Dr. Wright freely

admitted at the hearing to only taking four pages of notes over the twenty-one year period he treated

C.W.B. In addition, Dr. Wright admitted that he inadequately documented the progression of

therapy for his other patients as well, stating that felt he knew them well enough. One board member

expressed concerns that these statements by Dr. Wright evidenced a recurring problem indicating

that perhaps Dr. Wright did not understand the need for proper documentation of therapy. After

reviewing the record, we cannot say that the Board’s choice of sanctions was arbitrary and capricious

or outside the range of acceptable sanctions under section 63-11-215(a) of the Tennessee Code for

conduct of this nature. Accordingly, we affirm the chancery court’s ruling in that regard.

The Board’s Assessment of a Monetary Penalty

Next, Dr. Wright argues that the Board’s decision regarding the monetary penalties is not

supported by substantial and material evidence. The general rules governing the psychology

profession provide, in relevant part, as follows:

In assessing the civil penalties pursuant to these rules the Board may

consider the following factors:

(i) Whether the amount imposed will be a substantial economic

deterrent to the violator;

(ii) The circumstances leading to the violation;

(iii) The severity of the violation and the risk of harm to the

public;

(iv) The economic benefits gained by the violator as a result of

non-compliance; and

(v) The interest of the public.

Tenn. Comp. R. & Reg. 1180-1-.10(3)(d) (2002). In support of his position, Dr. Wright points to

the absence of any testimony by C.W.B. at the hearing regarding harm caused to her personally by

his actions, discussion by some of the Board members during their deliberations about the lack of

such proof, and the discussion by the Board members during deliberations concerning where the

money paid by Dr. Wright would eventually end up.

The Board, pursuant to section 63-1-134 of the Tennessee Code, “may assess a civil penalty

against [a licensee] in an amount not to exceed one thousand dollars ($1,000) for each separate

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violation of a statute, rule or order pertaining to such board, commission or agency.” Tenn. Code

Ann. § 63-1-134(a) (2003). This penalty shall be assessed in accordance with the schedule

established by the Board. Tenn. Code Ann. § 63-1-134(b) (2003). The schedule provides that the

Board may impose a “Type B” civil penalty “whenever the Board finds the person required to be

licensed . . . is guilty of a violation of the Psychology Act or rules promulgated pursuant thereto in

such a manner as to impact directly on the care of patients or the public.” Tenn. Comp. R. & Reg.

1180-1-.10(3)(b) (2002). “‘Type B’ civil penalties may be assessed in the amount of not less than

one hundred dollars ($100) nor more than five hundred dollars ($500).” Tenn. Comp. R. & Reg.

1180-1-.10(3)(c) (2002).

In determining whether there existed substantial and material evidence to support the Board’s

decision, we are mindful that:

[A] reviewing court should not apply Tenn.Code Ann. §

4-5-322(h)(5)'s "substantial and material evidence" test mechanically.

Instead, the court should review the record carefully to determine

whether the administrative agency's decision is supported by "such

relevant evidence as a rational mind might accept to support a rational

conclusion." Clay County Manor v. State Dep't of Health &

Environment, 849 S.W.2d 755, 759 (Tenn. 1993); Southern Ry. v.

State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984). The

court need not reweigh the evidence, Humana of Tennessee v.

Tennessee Health Facilities Comm'n, 551 S.W.2d 664, 667 (Tenn.

1977), and the agency's decision need not be supported by a

preponderance of the evidence. Street v. State Bd. of Equalization,

812 S.W.2d 583, 585 (Tenn.App. 1990). The evidence will be

sufficient if it furnishes a reasonably sound factual basis for the

decision being reviewed. Wayne County v. Tennessee Solid Waste

Disposal Control Bd., 756 S.W.2d 274, 279 (Tenn.App. 1988).

Jackson Mobilphone Co., Inc. v. Tenn. Pub. Serv. Comm'n, 876 S.W.2d 106, 111 (Tenn. Ct. App.

1993).

At the outset, we note that the Board, during its deliberations, originally considered assessing

a $2,000.00 penalty against Dr. Wright. The applicable rule at issue in this case merely states that

the board “may consider the following factors.” See Tenn. Comp. R. & Reg. 1180-1-.10(3)(d)3

(2002) (emphasis added). The record of the hearing before the Board does reveal that, during their

deliberations, some Board Members expressed a reluctance to assess a civil penalty. However,

during this discussion the Board members also went through every factor listed in the applicable rule.

Despite their initial reluctance, the Board members reached a consensus in assessing two Type B

civil penalties against Dr. Wright in the amount of $500.00 each. Regarding the lack of testimony

by C.W.B., we note that the applicable rule does not list harm to a patient as a factor for

consideration. See Tenn. Comp. R. & Reg. 1180-1-.10(3)(d)3 (2002). Even if such harm were a

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factor to be considered when assessing a civil penalty, we find that Dr. Wright presented sufficient

evidence to support a fine when he testified as follows:

Q. You would agree with me that breaching confidentiality for

one of your patients that send them into a rage for two years

would qualify as harm; would you not?

A. Yes. That was a mistake in judgment on my part.

....

Q. In this letter — . . . In this first paragraph you appear to be

discussing the breach of confidentiality with the sister. And

the last sentence of this paragraph says: “I still don’t know

what is so infuriating about that or what harm was done.”

A. And I still don’t know. If anybody knows, please tell me

because I can’t imagine — I have had almost five years to

think about this — and I still can’t imagine any harm that was

done other than I admit, certainly, to the patient but not, vis-a-

vis the wider world.

....

Q. And you’re looking forward to the feedback, but you believe

that these offenses that we’re about today are benign, and you

still believe that?

A. Vis-a-vis the wider world. It certainly was not benign to the

patient for which I deeply regret.

Based upon our review of the administrative record, we affirm the chancery court’s determination

that there existed substantial and material evidence to support the Board’s assessment of a monetary

penalty against Dr. Wright.

Policy Reasons for the Board’s Decision

In his third issue, Dr. Wright contends that the Board, in its haste to depart for the day,

merely made a perfunctory recitation of a boilerplate policy justification for its decision when it

stated:

Dr. Whelan: Abstentions, which I assume there’s not. The Chair

will vote for the motion meaning that the motion

carries. So they are the penalties. Then the final point

is the policy or the justification for taking this action,

and I will state the policy of the Board. We take this

action in order to promote the protection of the

citizens of Tennessee. And I believe now we are

concluded with our business in this case.

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Dr. Wright argues that this demonstrates the Board’s failure to consider the seriousness of their

findings and constitutes additional evidence that the actions of the Board are arbitrary and capricious.

Section 4-5-314(c) of the Tennessee Code requires an agency rendering a final order to

include a policy justification in the order for the action taken. Tenn. Code Ann. § 4-5-314(c) (2003).

“‘Policy reasons’ are not findings of fact, but statements of the reasons for the action taken by the

Board as a result of the facts as found.” Slatton v. Tenn. State Bd. of Architectural & Eng’g Exam’rs,

No. 88-48-II, 1988 Tenn. App. LEXIS 452, at *7 (Tenn. Ct. App. July 20, 1988). “The purpose of

section 4-5-314(c) is to enable the trier of fact to determine the basis for which the administrative

agency reached its decision, thereby safeguarding against arbitrary or untenable conclusions.”

Southwest Motor Freight, Inc. v. Dep’t of Commerce & Ins., No. 01A01-9403-CH-00119, 1994

Tenn. App. LEXIS 742, at *11 (Tenn. Ct. App. Dec. 16, 1994). “The foregoing is not a mere

technicality but is an absolute necessity without which judicial review would be impossible.” Levy

v. State Bd. of Examiners for Speech Pathology & Audiology, 553 S.W.2d 909, 911 (Tenn. 1977);

see also CF Indus. v. Tenn. Pub. Serv. Comm’n, 599 S.W.2d 536, 541 (Tenn. 1980).

In this case we are not dealing with the absence of a policy justification for an agency’s

decision but whether the policy justification given is adequate under the statute. In the final order,

the Board provided the following policy justification: “The Tennessee Board of Examiners in

Psychology makes this decision and takes this action in order to enforce the statutory laws and rules

governing the professional practice of Psychology in the State of Tennessee and in order to protect

the health, safety and welfare of the citizens of the State of Tennessee.” The applicable statute only

requires that the administrative agency include its policy reasons in the order, and we find nothing

in the statute requiring a policy statement to take a particular form. See Tenn. Code Ann. § 4-5-

314(c) (2003). In fact, this Court has stated that:

It is not improper for either party or counsel for either party to

suggest or even urge upon an administrative agency the merits of a

particular policy or reasons why a particular decision should be made.

If the suggestion is accepted, it becomes a part of the decision of the

Board. If correct, it is not rendered incorrect by its origin. If

incorrect and not accepted, its offer does not invalidate the decision

if otherwise correct.

Slatton, 1988 Tenn. App. LEXIS 452, at *6–7.

Our review of the administrative record reveals the policy statement made by the Board was

more than a perfunctory boilerplate statement as suggested by Dr. Wright. The record contains

several instances where the Board members discussed the need to send a clear message to

practitioners and the public that maintaining confidentiality is important in the psychology

profession. In discussing the need for supervision, the Board also mentioned the need to protect the

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public from future violations by Dr. Wright. We affirm the chancellor’s finding that the Board’s

policy justification complied with section 4-5-314(c) of the Tennessee Code.

Ex Parte Communications

In his final issue, Dr. Wright contends the administrative record reveals that, during a

break in the Board’s deliberations, the administrative law judge had an ex parte conversation with

one of the Board members. Dr. Wright contends this ex parte communication violated the following:

(1) section 4-5-304(a) of the Tennessee Code prohibiting ex parte communications in contested case

hearings; (2) the administrative law judge’s own instruction to the Board prior to deliberating; (3)

section 8-44-104(a) of the Tennessee Code requiring the meeting of a government body to be fully

recorded; and (4) section 4-5-319(c) of the Tennessee Code requiring a record to be made of all oral

proceedings before an administrative agency. Accordingly, Dr. Wright urges this Court to declare

the Board’s final order void and of no effect pursuant to section 8-44-105 of the Tennessee Code.

The UAPA requires an agency conducting a contested case hearing to maintain an official

record of the entire proceedings conducted before the administrative body, which shall consist of

“matters placed on the record after an ex parte communication.” Tenn. Code Ann. § 4-5-319(b)(11)

(2003). The UAPA also expressly states that:

Unless required for the disposition of ex parte matters specifically

authorized by statute, an administrative judge, hearing officer or

agency member serving in a contested case proceeding may not

communicate, directly or indirectly, regarding any issue in the

proceeding, while the proceeding is pending, with any person without

notice and opportunity for all parties to participate in the

communication.

Tenn. Code Ann. § 4-5-304(a) (2003). “The hearing shall be open to public observation pursuant

to the provisions of title 8, chapter 44, unless otherwise provided by state or federal law.” Tenn.

Code Ann. § 4-5-312(d) (2003). Once a petition for judicial review of the agency’s decision is filed,

the agency “shall transmit to the reviewing court the original or a certified copy of the entire record

of the proceedings under review.” Tenn. Code Ann. § 4-5-322(d) (2003) (emphasis added).

The administrative record does not support Dr. Wright’s conclusion that an ex parte

communication occurred during the Board’s deliberations. During the course of the deliberations

the following exchange occurred:

Dr. Whelan: I think we’re — while maybe not in agreement,

there’s understanding. And it’s your motion to

change or drop it. Someone else can make a motion

if they like. We do need to go back and visit one

other part of it, and I might ask for some clarification

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here. The original proposal — motion was for a

reprimand, and I believe that a reprimand is just

something that’s written as opposed to probation,

which is where we’re taking some action. Am I

correct on that? So this would be a probation, not a

reprimand.

The Court: What you’re saying is probationary, the things — that

we need to put him under guidance and counseling

and supervision. That is probationary as opposed to

a reprimand.

Dr. Freeman: Well, we could issue a reprimand and put his license

on probation.

Dr. Whelan: Can you wait —

Ms. King: Are we almost through?

Dr. Whelan: Yeah, I mean, just for — the Judge is going to give us

some information —

The Court: Okay. What was your question? I’m sorry.

Dr. Whelan: Oh, I thought you were about to say something. A

board member needs to take a brief break.

The Court: You need to clarify that on your reprimand versus the

other. There’s also maybe a point of question on your

fines and penalties — I don’t know whether it matters

to you, but the money may go into your — I think the

money goes into your budget. It doesn’t go into the

general fund.

Dr. Whelan: Okay. On that point, let’s take a brief break for board

members to — board members, let’s take a maximum

of ten minutes so we can come back and try to finish

this up.

(Break in proceedings.)

Dr. Whelan: The judge informed us that, in fact, we need to be

probation rather than reprimand. Correct me if I’m

wrong. We’re talking about a probation here, not a

reprimand. So one of the things about the motion is

that it needs to be about probation to do these other

things. . . .

As a general matter, “[t]he party claiming bias as a result of ex parte communications must

prove both the existence and content of the alleged communication, and the record may negate any

claim that the communication created undue bias in the decisionmaker.” 73 C.J.S. Public

Administrative Law and Procedure § 127 (2004). Our review of the record does not lead us to draw

the same inference urged upon this Court by Dr. Wright. See Ark. Appraiser Licensing &

Certification Bd. v. Fletcher, 933 S.W.2d 789, 792 (Ark. 1996). To the contrary, the record reveals

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that the Board members merely took up the same topic mentioned by the administrative law judge

prior to the break in their deliberations. Accordingly, we affirm the chancery court’s finding that

there were no ex parte communications during the administrative proceeding before the Board.

Conclusion

For the reasons contained herein, we affirm the decisions of the chancery court and the

Tennessee Board of Examiners in Psychology in all respects. Costs of this appeal are to be assessed

against the Appellant, Dr. Fred H. Wright, and his surety, for which execution may issue if

necessary.

___________________________________

ALAN E. HIGHERS, JUDGE

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