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Randy Rand v. Board of Psychology

May 10, 2012

RANDY RAND, PLAINTIFF AND APPELLANT,
v.
BOARD OF PSYCHOLOGY, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 34200980000259CUWMGDS) APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlette, Judge. Affirmed.

The opinion of the court was delivered by: Mauro , J.

CERTIFIED FOR PUBLICATION

Psychologist Randy Rand filed a petition for writ of administrative mandamus challenging the authority of the Board of Psychology (Board) to discipline him for unprofessional conduct, gross negligence, violation of laws governing the practice of psychology, and dishonesty. (Bus. & Prof. Code, § 2960, subds. (i), (j), (k), (n).)*fn1 The trial court entered judgment denying his writ petition.

Rand contends on appeal that (1) the Board lacked jurisdiction to discipline him for his conduct as a special master because (a) he was acting in a judicial capacity, and (b) he was not acting as a psychologist; (2) he was denied due process of law because (a) he was not given fair notice of prohibited conduct, and (b) there was no logical nexus between the Board's findings and unfitness to practice the profession; and (3) the Board's factual findings do not support a determination that he was dishonest.

We conclude that (1) the Board had jurisdiction to discipline Rand for his conduct as a special master because Rand was acting as a psychologist in his special master role; (2) Rand's due process contentions fail because (a) the rules, standards and guidelines for psychology practice gave him fair notice of prohibited conduct, and (b) Rand failed to meet his burden of showing that there is no logical nexus between his unprofessional conduct and his fitness to practice the profession; and (3) substantial evidence supports the trial court's findings that Rand was dishonest.

We will affirm the judgment.

BACKGROUND

The Board disciplined Rand based on his unprofessional conduct in two different court proceedings. In the first, Rand was a special master in a family law matter in California, and in the second, he telephonically testified under oath in a family law proceeding in Florida.

Rand was appointed as a special master in a high-conflict divorce proceeding between Loyal Davis and Jennifer Ives in Sonoma County, California. Davis and Ives had "ongoing issues" concerning visitation, and according to the special master agreement between the parties, Rand was appointed to assist them "'based upon [his] expertise . . . as a court-appointed expert and license[d] mental health professional.'" Rand was to make decisions regarding matters such as dates, times, and methods of delivery of the children; sharing of vacations and holidays; participation by relatives in visitation; health care management; and communication with the children during non-custodial times. He was prohibited from making any orders affecting the court's exclusive jurisdiction to determine fundamental issues of custody and visitation, and could not make any orders altering or awarding physical or legal custody.

As the Board stated, and the trial court reiterated: "Special masters are generally used in high-conflict family law cases. One or more of the parties is likely to be combative, adversarial and difficult to deal with. The special master must remain neutral and impartial. The special master must avoid the appearance of favoring one side or the other or appear to align himself with one side or the other." Rand failed to do so.

Early in his tenure as special master, Rand became frustrated with Ives, accused her of trying "'to pull one over on [him],'" and essentially called her a liar. He told her he no longer trusted her and informed her she would have to corroborate everything to him. Rand emailed Ives that he could not work with dishonesty and incorrectly accused her of perjury.

Ives wrote Rand a letter outlining her grievances against him and asked him to resign as special master. Rand felt he "did not need the aggravation that comes with defending the grievance" and agreed to enter into confidential negotiations with Ives's attorney, Alan Silverman, concerning withdrawing as a special master. Rand was willing to resign but conditioned his resignation on Ives withdrawing her grievance against him. Rand asserted that if Ives pursued her grievance he would vigorously defend himself, his defense would not portray Ives in a favorable light, and she should think twice before making him defend himself. If Ives withdrew her grievance, however, then Rand would resign and state that he was doing so for the best interest of the children. If questioned by Davis, Rand would tell him he was not at liberty to disclose the reason for his withdrawal but that he should trust Rand's decision.

Ives wanted a clause in the agreement that permitted her to reinstitute her grievance if Rand made any future disclosures about her to Davis or the court. When Silverman told Rand that any waiver of Ives's grievance would have to be conditional, Rand stated she was unreasonable and he declined to resign.

Ives retained Frank Dougherty, who is licensed as a psychologist and attorney and had experience as a special master, to represent her on the limited issue of her grievance and to negotiate Rand's resignation. Dougherty sent Rand a formal association of counsel form, and also obtained approval from Davis's lawyer, Bruce Schwartz, to contact Rand. A conference call was scheduled between Rand and the attorneys to discuss the grievance, but Rand refused to permit Dougherty to participate. Rand stated that regardless of Dougherty's standing in the case, he would only speak with Silverman and Schwartz.

Dougherty wrote Rand a letter stating that based on Dougherty's experience as a forensic psychologist and special master in many family law cases, he found Ives's grievance meritorious, at least in part. Dougherty outlined the ways in which Rand's performance as a psychologist acting as a special master had been deficient, and observed that the focus of the case had shifted from resolving conflicts between the parents to resolving conflicts between Ives and Rand. Dougherty explained that Ives was not interested in ruining Rand's career by pursuing her complaint through the Board and she preferred addressing the matter informally. She requested that he resign immediately, issue no further orders, and agree to disqualify himself from offering any expert opinion related to custody matters in the case.

On June 1 and June 9, 2004, Rand participated in a conference call with Davis and Schwartz concerning Ives's grievance against Rand. On June 9, he sent an email to Silverman stating, "'I have given several warnings and demands, I do not want any communication from or with Dr. Dougherty and I have the authority and discretion to communicate or not with any attorney in this matter, regardless of a standing of 'association' to you as attorney representing [Ives]. When I can, I'm asking for a restraining order.'"

In August 2004, Dougherty substituted in as Ives's attorney for all purposes. However, at a court hearing a few months later, Rand stated under oath that he would not meet with or discuss the case with Dougherty.*fn2 He consistently refused to speak with Dougherty but continued to speak with Schwartz. For several years, Rand communicated with Davis and his attorney by telephone, refused to speak with Ives's attorney, and communicated with Ives by email only. He had lunch with Davis on one occasion and communicated comfortably with him at hearings, but refused to speak to Ives.

Later in the Sonoma County proceeding, and while still acting as a special master, Rand pursued a monetary claim against Ives based on her failure to pay her share of his special master fees. To recover on his claim, Rand filed a lien against property Ives owned in New Hampshire, and to assist him in this endeavor, he hired an attorney who had represented Davis against Ives in a custody matter there.

The Board ruled that based on clear and convincing expert testimony, Rand's conduct constituted an extreme departure from the standard of practice for a psychologist acting as a special master. The Board found that it is necessary for a special master to be impartial and to preserve the appearance of impartiality, but Rand treated the parties disparately, and did not make the appropriate effort to appear unbiased or to resolve his differences with Ives. Furthermore, he negotiated with Ives not to file a complaint with the Board. The Board concluded that cause for disciplinary action existed due to Rand's general unprofessional conduct, gross negligence, and violation of laws governing the practice of psychology. (§ 2960, subds. (j), (k).)

The other case that formed the basis for Rand's discipline involved a child custody proceeding in Florida state court. The father had sole custody of the child and the mother sought to change the custody status. A child custody evaluator concluded that the child was alienated from the mother and recommended counseling for the child with Dr. Robert Evans, a licensed school psychologist.

At a custody hearing, Evans testified that he believed the child needed to participate in a parental alienation program designed by Rand, who was an expert in the area of parental alienation syndrome. During the hearing, the judge telephoned Rand, placed him under oath, and questioned him about the intervention protocol proposed by Dr. Evans. Rand discussed the origins of his program, how it worked and the goal of the process. It involved reunifying a non-custodial parent with a child who had become alienated from the non-custodial parent and idolized the custodial parent. Rand developed the program "by trial and error" after he noticed similarities between alienated children and children who had been abducted and brainwashed by a cult. His program required that custody be given to the non-custodial parent, that the child be forced to participate in a retreat with the parent, and then go "home with the previously rejected parent" as a "permanent arrangement."

The judge asked Rand his opinion as to whether or not the child in the Florida case should go through the intervention process. Rand opined that the child was severely alienated and, "'for the child's best interest,'" custody should be changed permanently to the mother and the child should go through the intervention program. Rand's opinion was based on the reports of other professionals and he "did not explain to the court the probable impact on the reliability and validity of his opinions of his not having personally interviewed or evaluated the child."

The Board found that Rand's conduct was an extreme departure from the standard of practice of a psychologist. The Board determined that Rand offered an opinion about a characteristic of a child whom he had not interviewed or evaluated, concluded that the child was severely alienated, and made a custody recommendation without stating the limitations of his opinion. The Board found that the judge was not speaking hypothetically when he asked Rand his opinion, and Rand did not answer hypothetically. The Board concluded that cause for disciplinary action existed due to Rand's unprofessional conduct, gross negligence, and violation of the rules of professional conduct and laws governing the practice of psychology. (§ 2960, subds. (i), (j), (k).)

Furthermore, when the Board investigated the matter, Rand advised the Board he had only a "'very peripheral involvement'" in the case and stated that the judge called him "'for the sole purpose of inquiring about generic information pertaining to a program [that he] developed.'" This was not true. According to the Board's experts, Rand's role in the Florida court case was not peripheral; he testified under oath as an expert, opined the child would benefit from his parental reunification program, and made a custody recommendation. Moreover, if the court had ordered an intervention, Rand would have performed it with the child and mother and would have trained the child's therapist in his reunification technique. The Board found that Rand's attempt to minimize his role in the Florida proceedings constituted dishonesty, which was a cause for discipline under section 2960, subdivisions (i), (k) and (n).

The Board revoked Rand's license but stayed the revocation for five years upon various terms and conditions, including that his practice be conducted subject to the oversight of a practice/billing monitor. In addition, the Board ordered Rand to complete 30 hours of coursework in forensic psychology and a course in law and ethics as they relate to the practice of psychology.

Rand filed a petition for writ of administrative mandamus challenging the Board's decision on multiple grounds. He contended the Board exceeded its jurisdiction in disciplining him for conduct in his role as a special master because that role was not the practice of psychology, and any alleged misconduct did not violate a specific statute or regulation pertaining to Rand's competence to practice psychology. Rand also maintained that the Board was equitably estopped from bringing the disciplinary action against him because it had a policy of not pursuing complaints against court-appointed special masters, and instead deferred to the superior court to remove a special master for any misconduct. Rand alleged that he reasonably relied on this policy to his detriment.

In a related argument, Rand asserted that he was deprived of due process of law when the Board disciplined him for his conduct as a special master because he did not receive adequate notice that his activities were subject to the Board's jurisdiction before it retroactively changed the applicable standards. He contended that none of the ethical rules governing psychologists contain any provisions notifying him that they pertained to special masters. Rand maintained that the Board's conduct disciplining him for his activities as a special master violated the separation of powers doctrine because the Board interjected itself into the family court process and undermined Rand's findings and recommendations by disciplining him. In addition, Rand argued that the weight of the evidence did not support the Board's factual findings and legal conclusions.

The trial court, exercising its independent judgment, upheld the Board's decision. It found that Rand was engaged in the practice of psychology while he was acting as a special master, and the weight of the evidence supported the Board's determination that he engaged in unprofessional conduct, was grossly negligent, and violated the legal standards governing psychologists.

The trial court ruled that the Board was not estopped from disciplining Rand because the evidence did not support Rand's claim that the Board had a policy of not disciplining the licenses of special masters based on their conduct within the context of the family court process where their conduct failed to meet professional standards for licensed psychologists. The Board simply would not discipline special masters based on their substantive orders and recommendations. Accordingly, the trial court ruled that Rand's due process argument also failed because the Board did not retroactively change the standards applicable to him or discipline him without adequate notice. The trial court determined that the Board did not violate the separation of powers doctrine because it did not discipline him for his substantive decisions, but rather for his unprofessional conduct toward the parties. Thus, the Board did not interfere with matters that properly belonged within the judicial sphere.

As for the Florida custody case, the trial court found that the weight of the evidence supported the Board's findings that Rand's conduct was unprofessional, grossly negligent and dishonest. Accordingly, the trial court denied the petition for writ of administrative mandamus.

STANDARD OF REVIEW

When an administrative decision substantially affects a fundamental vested right, such as the revocation of a professional license or the right to practice one's profession, the independent judgment standard of review applies. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 789; Evans v. Department of Motor Vehicles (1994) 21 Cal.App.4th 958, 967, fn. 1.) The superior court examines the administrative record for errors of law and exercises its independent judgment upon the evidence "in a limited trial de novo." (Bixby v. Pierno (1971) 4 Cal.3d 130, 143; Evans v. Department of Motor Vehicles, supra, 21 Cal.App.4th at p. 967, fn. 1.) The superior court resolves evidentiary conflicts, assesses the witnesses' credibility, and arrives at its own independent findings of fact. (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 45.)

On appeal, we do not exercise our independent judgment. We review the trial court's findings under the substantial evidence test and determine whether substantial evidence supports the trial court's conclusions. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 659-660.) We must resolve all conflicts in the evidence, and indulge all reasonable inferences, in favor of the superior court's judgment. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 135; Barber v. Long Beach Civil Service Com., supra, 45 Cal.App.4th at p. 659.) However, we are not bound by any legal interpretations made by the administrative agency or the trial court; rather, we make an ...


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