Leon v. Ohio Bd. of Psychology

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OPINIONS OF THE SUPREME COURT OF OHIO

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of these opinions.

Leon, Appellant, v. Ohio Board of Psychology, Appellee.

[Cite as Leon v. Ohio Bd. of Psychology (1992), Ohio St. 3d .]

Psychologists -- Former Ohio Adm. Code 4732-17-01(A)(2)(d),

prohibiting psychologist from engaging in a sexual relationship

with an immediate ex-client, is not unconstitutionally vague.

Former Ohio Adm. Code 4732-17-01(A)(2)(d), the prohibition

against a psychologist engaging in a sexual relationship

with an immediate ex-client, is not so vague so as to cause

a psychologist of ordinary intelligence to guess as to its

meaning or application.

(No. 91-229 -- Submitted January 22, 1992 -- Decided May 27, 1992.)

Appeal from the Court of Appeals for Cuyahoga County, No. 57256.

Appellant, Julian P. Leon, was granted licensure in psychology

by appellee, Ohio Board of Psychology ("board"), in 1973. On June

6, 1988, the board issued a "Notice of Opportunity for Hearing" to

appellant with respect to allegations raised by a former female

client, hereinafter referred to as "Client X," concerning

appellant's violation of R.C. Chapter 4732 and the Ohio rules

governing the professional conduct of psychologists set forth in the

Ohio Administrative Code. Subsequently, a hearing before the

board was conducted on July 29 and 30, 1988 for the purposes of

exploring the allegations raised by Client X.

After receiving testimony and numerous exhibits, the board made

findings of facts and conclusions of law which resulted in an order

dated August 18, 1988 revoking appellant's license to practice

psychology. In its report, the board made the following findings of

fact:

"Mr. Leon had a therapeutic relationship with Client X in July,

1984 through November of 1985. Prior to the initiation of the

therapeutic relationship with Client X, Mr. Leon served as her

teacher and personal growth group leader.

"Beginning about June, 1983 until about July, 1984, Client X was

involved in the Gestalt Institute of Cleveland's year-long Post-

Graduate Training program. Prior to the year-long program, Mr. Leon

served as Client X's teacher in one or more workshops.

"During the year-long training program, Mr. Leon was involved

with Client X as a personal growth group leader and as a teacher.

"In March of 1986, Mr. Leon entered into a non-professional

social relationship with Client X. Said relationship began with

telephone calls, lunches and other social engagements, proceeding to

a sexual relationship by June of 1986.

"Mr. Leon knew, based on his own experience with other clients,

that the therapeutic relationship extends for a period of

time after cessation of formal appointments and that a therapist's

influence does not end on the date of the last formal appointment.

"Mr. Leon failed to recognize the influence which he had over

students; failed to recognize the impact of his role as a therapist;

failed to identify the condition of Client X during treatment and at

the time the personal relationship began; failed to recognize the

subsequent distress of Client X and did not identify clearly what

'ex-client' status was."

Upon these findings of fact, the board concluded that appellant

was negligent in his practice of psychology contrary to R.C.

4732.17(E), for failing to avoid a dual relationship with a client

which would impair his professional judgment. The board further

found that contrary to R.C. 4732.17(G), appellant violated several

rules of professional conduct, including having a sexual

relationship with an "immediate ex-client" in violation of Ohio Adm.

Code 4732-17-01(A)(2)(d). The board also found that appellant

violated Ohio Adm. Code 4732-17-10(A)(2)(c) by exploiting the trust or

dependency of a client, and that his actions amounted to a failure to

recognize the boundaries of his competence in violation of Ohio Adm.

Code 4732-17-01(B)(1).

Upon appeal, the court of common pleas reversed and vacated the

board's order revoking appellant's license, as not being supported

by reliable, probative and substantial evidence. The trial court

stated that the relationship between appellant and Client X "*** was

one that was initiated and pursued to a great degree by Client X

herself." The court further found that "*** a significant amount of

time had elapsed since the final

professional encounter between Appellant and Client X and the

beginning of their social relationship." The trial court concluded

that appellant had violated neither the statutes nor the rules

governing the professional conduct of psychologists.

Upon further appeal, the court of appeals reversed and remanded

the cause for reinstatement of the board's revocation order. The

appellate court reasoned that the trial court merely substituted its

judgment for that of the board and abused its discretion in reversing

the board's revocation order. Upon a review of the entire record,

the court of appeals held that there was substantial, reliable and

probative evidence to support the board's conclusion that Client X

was an immediate ex-client and that appellant engaged in a dual

relationship in violation of Ohio Adm. Code 4732-17-01(A)(2)(d).

The cause is now before this court pursuant to the allowance of

a motion to certify the record.

Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A., Sheldon Berns,

Adrienne Lalak Deckman and Benjamin J. Ockner, for appellant.

Lee I. Fisher, Attorney General, and Michele Morris, for appellee.

Sweeney, J. Appellant raises two arguments that he claims

should compel a reversal of the court of appeals' reinstatement of

his license revocation. In his first argument, appellant contends

that the regulation cited by the board to revoke his license to

practice psychology is unconstitutionally vague. In his second

argument, appellant argues that the court of appeals erred in

applying an incorrect standard of review in reversing the judgment

of the court of common pleas.

With respect to appellant's first argument, former Ohio Adm.

Code 4732-17-01(A)(2)(d) provided in relevant part:

"A psychologist or school psychologist should avoid dual

relationships with clients and/or relationships which might impair

his professional judgment or increase the risk of client

exploitation. *** A psychologist or school psychologist shall not

engage in sexual relationships with clients or immediate ex-clients.

Neither shall he terminate a therapeutic relationship with a client

for the express or implied purpose of having a sexual relationship

with that person. ***" 1981-1982 Ohio Monthly Record 103 (eff. Sept.

1, 1981).

It is appellant's contention that the term "immediate ex-client"

is not defined by either the regulation or any other applicable

authority. Appellant submits that the vagueness of the term

"immediate ex-client" is exemplified by the differing interpretations

of the term rendered by the board and the court of common pleas.

Appellant points out the court of common pleas' finding that the

approximately seven-month hiatus between the end of appellant's

therapeutic relationship with Client X and the beginning of their

sexual relationship constituted a "significant amount of time."

Therefore, appellant asserts that he should not

be deprived of his livelihood based on a regulation that is

unconstitutionally vague and subject to differing interpretations.

In our view, the term "immediate ex-client" is not

unconstitutionally vague either facially or as applied to the

particular facts of this case. Simply because the term "immediate

ex-client" was not temporally defined within the regulation does not

make it unconstitutionally vague.1 As pointed out by the board,

application of the term on a case-by-case basis is appropriate.

Research indicates that the regulation and term in issue have been

the subject of review in at least one reported case. In Barnett v.

Wendt (1986), 33 Ohio App. 3d 124, 514 N.E. 2d 739, the court of

appeals held that the finding of a violation of Ohio Adm. Code 4732-

17-01(A)(2)(d) was not unreasonable where the sexual relationship

between the psychologist and client took place approximately four

weeks after the termination of the therapeutic relationship.

While appellant submits that seven months constitutes a

significant amount of time between the end of a therapeutic

relationship and the beginning of a sexual relationship, we cannot

agree. As a licensed psychologist, appellant is bound to be aware

that sexual relationships with clients are not only discouraged, but

prohibited, given the influence the psychologist usually has over the

client in the therapeutic relationship, and the client's trust in and

dependency on the psychologist. It takes no citation of authority to

safely state that sexual relations between any

professional and a client or immediate ex-client are universally

prohibited by the ethical regulations of practically every

profession. In our view, it was not unreasonable for the board to

find that appellant engaged in a sexual relationship with an

"immediate ex-client" within the ambit of the regulation, since

appellant conceded in his own testimony that the influence of the

therapeutic relationship between a psychologist and client could

last up to a year after the end of therapy. Thus the board had

ample supporting evidence to find that Client X was an immediate ex-

client, since sexual relations ensued approximately seven months

after the therapeutic relationship terminated. In any event, we

believe that former Ohio Adm Code 4732-17-01(A)(2)(d), the prohibition

against a psychologist engaging in a sexual relationship with an

immediate ex-client, is not so vague so as to cause a psychologist of

ordinary intelligence to guess at its meaning or application. See,

generally, Columbus v. Thompson (1971), 25 Ohio St. 2d 26, 54 O.O.

2d 162, 266 N.E. 2d 571. Therefore, we reject appellant's argument

that the regulation in issue is unconstitutionally vague as applied

herein.

Moreover, in Lorain City Bd. of Edn. v. State Emp. Relations Bd.

(1988), 40 Ohio St. 3d 257, 533 N.E. 2d 264, we held that courts

must accord due deference to the State Employment Relations Board's

interpretation of R.C. Chapter 4117, since the General Assembly

designated it to be the proper forum to resolve public employment

labor disputes. Similarly, we hold in the cause sub

judice that courts must accord due deference to the State Board of

Psychology in its interpretation of R.C. Chapter 4732 and the

relevant provisions of the Ohio Administrative Code, given that the

General Assembly has deemed it to be the proper forum to determine

licensure matters concerning psychologists.

With regard to the second argument raised by appellant, i.e.,

that the court of appeals applied the incorrect standard of review

in reversing the trial court's vacation of the board's revocation

order, appellant asserts that the appellate court essentially

adopted a new standard of review for adjudications arising under

R.C. 119.12. In our view, however, it was the court of common pleas

which abused its discretion in its review of the decision of the

board.

The decision of the court of common pleas held that the board's

revocation of appellant's license was not supported by reliable,

probative and substantial evidence. In so holding, the court relied

primarily upon the testimony given by appellant's former attorney,

and concluded that Client X largely initiated and pursued the

nontherapeutic relationship that took place. However, in Univ. of

Cincinnati v. Conrad (1980), 63 Ohio St. 2d 108, 111, 17 O.O. 3d 65,

67, 407 N.E. 2d 1265, 1267, this court plainly observed that "***

the Court of Common Pleas must give due deference to the

administrative resolution of evidentiary conflicts. For example,

when the evidence before the court consists of conflicting testimony

of approximately equal weight,

the court should defer to the determination of the administrative

body, which, as the fact-finder, had the opportunity to observe the

demeanor of the witnesses and weigh their credibility."

Upon a careful review of the record, we agree with the

conclusion of the court of appeals below that the trial court failed

to accord due deference to the findings of the board, especially with

respect to conflicting testimony. See, also, Seasons Coal Co. v.

Cleveland (1984), 10 Ohio St. 3d 77, 10 OBR 408, 461 N.E. 2d 1273.

Had the court of common pleas abided by the standard of due

deference outlined above, we are confident that it would have held

that the board's finding of negligence on the part of appellant in

the practice of psychology was supported by reliable, probative and

substantial evidence. Since the court of common pleas did not

follow the due-deference standard, it abused its discretion in

reversing the board's revocation order.

Based on all the foregoing, the judgment of the court of appeals

is hereby affirmed.

Judgment affirmed.

Moyer, C.J., Holmes, Wright and H. Brown, JJ., concur.

Douglas and Resnick, JJ., dissent.

FOOTNOTE:

1 Effective October 1, 1990, Ohio Adm. Code 4732-17-01 was amended

to forbid psychologists from engaging in sexual intercourse or other

physical intimacies with a client within twenty-four months of the

last professional services rendered by the psychologist to the

former client. Ohio Adm. Code 4732-17-01(E)(3)(a).

Alice Robie Resnick, J., dissenting. I must respectfully

dissent from the majority's assessment of the constitutional validity

of former Ohio Adm. Code 4732-17-01(A)(2)(d). The majority confuses

several aspects of this issue, and offers little or no analytical

justification for its ultimate holding. Upon close examination, I

conclude that former Ohio Adm. Code 4732-17-01(A)(2)(d) is void for

vagueness.

As an initial factual matter, the State Board of Psychology, as

the fact-finder, determined that: (1) the therapeutic relationship

between Client X and appellant ended in November 1985; (2) a social

relationship between the two individuals began in March 1986; and (3)

a sexual relationship began in June 1986 -- seven months after the

therapeutic relationship had ended. However, the record contains

evidence that Client X had a previous professional relationship with

appellant when they both attended a 1982 group workshop at the Gestalt

Institute of Cleveland. The record evinces that Client X was on the

faculty of Bloomsburg University, Bloomsburg, Pennsylvania, in the

Department of Counseling. Moreover, at the time of the hearing before

the State Board of Psychology, Client X was working on her doctorate at

Ohio State University. In all, Client X was appellant's patient for

fifteen months. But Client X met with appellant for only eight

therapy sessions, the last one being in November 1985. Hence, while

Client X was a patient and may have been susceptible to appellant's

influence, this is not necessarily a prototypical case of a

psychologist who purposefully abandons his professional ethics to

pursue an illicit sexual relationship.

Appellant's argument that former Ohio Adm. Code 4732-17-

01(A)(2)(d) is unconstitutionally vague centers around the phrase

"immediate ex-client" found therein. "In order to prove such an

assertion, the challenging party must show that the statute is vague

'not in the sense that it requires a person to conform his conduct to

an imprecise but comprehensible normative standard, but rather in the

sense that no standard of conduct is specified at all. * * *' Coats v.

Cincinnati (1971), 402 U.S. 611, 614 [91 S. Ct. 1686, 1688, 29 L.Ed. 2d

214, 217]. In other words, the challenger must show that upon

examining the statute, an individual of ordinary intelligence would

not understand what is required to do under the law." State v. Anderson

(1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224, 1226. The word

immediate is the only standard given in the administrative rule, and

is not defined by any other section of the Ohio Administrative Code.

This court has long recognized the basic principle that "[w]ords in

common use will be construed in their ordinary acceptation and

significance and with the meaning commonly attributed to them."

Eastman v. Ohio (1936), 131 Ohio St. 1, 22 N.E.2d 132, 15 O.O. 330,

paragraph five of the syllabus. Black's Law Dictionary (6 Ed. 1990)

749, defines "immediate" as follows: "Present; at once; without

delay; not deferred by any interval of time. In this sense, the word,

without any very precise signification, denotes that action is or must

be taken either

instantly or without any considerable loss of time. * * * Next in line

or relation; directly connected; not secondary or remote. ***" As

applied to this case, the term "immediate" is void for vagueness

because it contains no time element for guidance, i.e., it is "without

any very precise signification." Essentially, the majority equates a

seven-month hiatus between the therapeutic relationship and a sexual

relationship with being "immediate." Yet, the very definition of this

term denotes almost instantaneous conduct, or conduct "without any

considerable loss of time." Under even the most strained concept of

common sense, seven months cannot be considered "immediate."

A psychologist reading the phrase "immediate ex-client" would be

at a loss to know whether this meant a day, a week, a month or a year.

Applying the definition of "immediate" set forth above, no psychologist

could ever know what conduct was prohibited and what conduct was

allowed. Additionally, as noted in the majority opinion at fn. 1,

Ohio Adm. Code 4732-17-01 has been amended to now specifically require a

twenty-four month interval between the end of treatment or therapy and

the beginning of a sexual relationship. See Ohio Adm. Code 4732-17-

01(E)(3)(a). Comparing this amendment to the prior version of the

rule, could any practicing psychologist ever have imagined the word

"immediate" to mean twenty-four months, let alone seven? I do not

believe any individual of ordinary intelligence could possibly have

thought that "immediate ex-client" would translate into any client

treated in the preceding seven

months. Hence, I would find former Ohio Adm. Code 4732-17-01(A)(2)(d)

void for vagueness since no ascertainable standard is found therein.

Therefore, I vigorously dissent.

Douglas, J., concurs in the foregoing dissenting opinion.