Farber v. North Carolina Psychology Board

569 S.E.2d 287, 153 N.C. App. 1, 2002 N.C. App. LEXIS 1085
CourtCourt of Appeals of North Carolina
DecidedSeptember 17, 2002
DocketCOA01-725
StatusPublished
Cited by14 cases

This text of 569 S.E.2d 287 (Farber v. North Carolina Psychology Board) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farber v. North Carolina Psychology Board, 569 S.E.2d 287, 153 N.C. App. 1, 2002 N.C. App. LEXIS 1085 (N.C. Ct. App. 2002).

Opinions

TIMMONS-GOODSON, Judge.

Dr. Jonathan Farber (“petitioner” or “Dr. Farber”) and the North Carolina Psychology Board (“respondent” or “the Board”) appeal from an order of the trial court vacating a final decision by the Board. For the reasons stated herein, we reverse in part the order of the trial court.

The facts pertinent to this appeal are as follows: Dr. Farber is a licensed psychologist practicing in Durham, North Carolina. On 28 April 1998, a former patient of Dr. Farber filed a complaint against him with the Board. The complaint alleged that Dr. Farber had engaged in an improper relationship of a romantic nature with the patient while she was under his care. The Board thereafter notified [4]*4Dr. Farber of the complaint and assigned a staff psychologist, Randy Yardley (“Yardley”), to investigate the matter and prepare a report.

On 1 and 2 October 1998, Yardley presented his report to the Board for its determination as to whether sufficient grounds existed for a statement of charges against Dr. Farber or for a formal hearing on the issues raised in the complaint. As per standard Board practice, the report was anonymous, with proper names redacted. Based on the report, the Board found that Dr. Farber’s alleged conduct, if proven, would constitute a violation of several statutes and ethical standards. Accordingly, the Board issued a statement of charges against Dr. Farber and scheduled a formal hearing on the matter for 4 November 1999.

On 4 October 1999, counsel for Dr. Farber filed a petition for disqualification of certain Board members, alleging that they had improperly drawn conclusions concerning Dr. Farber’s conduct based on Yardley’s report submitted at the October meeting of the prior year. The petition set forth no specific facts to support the allegations of bias, but instead stated that the Board members’ review of the anonymous report potentially created “irrevocabl[e] bias[] such that [the Board members] cannot provide a fair and impartial hearing^]” The petition therefore requested that the matter be removed to the Office of Administrative Hearings. The petition further recited that the Board’s procedure had deprived Dr. Farber of due process, in that neither he nor his counsel were allowed to attend the probable cause hearing. In addition to calling for the recusal of the allegedly biased Board members, the petition requested that counsel for Dr. Farber “be permitted to participate in separate examination of each Board member[.]”

The Board addressed Dr. Farber’s petition at its 14 and 15 October 1999 meetings. An independent attorney, Assistant Attorney General Richard Slipsky, polled Board members, who responded that they had had no further communication regarding Dr. Farber’s case following the report by Yardley during the previous year. Further, Board members stated that they had no written materials regarding the matter. Concluding that the petition failed to state sufficient grounds to initiate the procedures for determining disqualification of Board members or for due process violations, the Board denied Dr. Farber’s petition.

The Board’s formal hearing on the complaint filed against Dr. Farber took place on 4 and 5 November 1999 as scheduled. Dr. Farber [5]*5was present and represented by counsel, who presented evidence and conducted cross-examination of the witnesses. The evidence, as found by the Board, included the following facts: During an individual therapy session with his patient, Dr. Farber disclosed that he and his wife had separated. Dr. Farber thereafter “said or did things that started making [his patient] think that a romantic relationship [with Dr. Farber] could be possible[.]” These disclosures and further behavior by Dr. Farber led the patient to end her individual therapy because she believed her treatment had been compromised. The Board found that the patient “would not have ended therapy with [Dr. Farber] if there had been no thought of a relationship with him outside of therapy.” Dr. Farber and the patient subsequently began a relationship outside of therapy with the intent of “get[ting] to know one another, to see if they would be a good match romantically[.]” The patient then ended her participation in group therapy because of her relationship with Dr. Farber. The Board also found that Dr. Farber “did not consult with a psychologist about the circumstances of the relationship[,]” but that he did discuss the situation informally with a colleague, who advised him that such an arrangement was “hazardous” and that Dr. Farber “ought to be careful about it.”

Based on these and other findings, the Board concluded that Dr. Farber had violated several statutes and ethical standards regulating the professional conduct of psychologists. The Board therefore suspended Dr. Farber’s professional license for a period of two years, thirty days of which were active, with the remaining period subject to probation. The Board also ordered Dr. Farber to pay the costs of the disciplinary proceeding, which were “calculated by the Board’s Executive Director as $4,050.00.”

On 27 March 2000, Dr. Farber filed a petition for declaratory judgment and judicial review of the Board’s decision. The petition requested that the court vacate the Board’s decision and declare a certain section of the Psychology Practice Act unconstitutional. The matter came before the trial court on 7 September 2000, at which time the trial court concluded that, although the decision was supported by substantial evidence, the Board’s actions had violated Dr. Farber’s due process and statutory rights. Specifically, the trial court concluded that the petition filed by Dr. Farber for disqualification of the Board members set forth “sufficient allegations of bias such that Petitioner should have been afforded the opportunity to examine the Board members for possible bias.” The trial court further concluded that Yardley’s report to the Board constituted an ex parte communi[6]*6cation that, while “not a technical violation” of the North Carolina General Statutes, nevertheless “constituted a violation of the spirit of the statutory prohibition” against ex parte communications. The trial court also concluded that the Board had improperly commingled investigative and adjudicative functions in violation of statutory law. Based on these conclusions, the trial court vacated the decision of the Board. Finally, the trial court declined to issue a declaratory judgment regarding the constitutionality of the Psychology Practice Act. It is from this order that the Board (“respondent”) and Dr. Farber (“petitioner”) now appeal.

Respondent presents two issues for review on appeal, arguing that the trial court erred in (1) concluding that respondent violated petitioner’s statutory and constitutional rights and (2) reversing the assessment of costs to petitioner. Petitioner argues that the trial court erred in (1) determining that respondent’s final decision was supported by substantial evidence and (2) declining to issue a declaratory judgment regarding the constitutionality of section 90-270.15(a)(10) of the North Carolina General Statutes. We address these issues in turn.

I. Respondent’s Appeal

Respondent first argues that the trial court erred in concluding that its actions violated petitioner’s statutory and due process rights. On appeal, we review the record to determine if competent evidence exists to support the trial court’s findings of fact and, in light of those findings, whether the conclusions of law are proper. See Lewis v. Edwards, 147 N.C. App.

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Farber v. North Carolina Psychology Board
569 S.E.2d 287 (Court of Appeals of North Carolina, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
569 S.E.2d 287, 153 N.C. App. 1, 2002 N.C. App. LEXIS 1085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farber-v-north-carolina-psychology-board-ncctapp-2002.