ALJDEC

01A-19990022-BHE · Board of Behavioral Health Examiners · 2001-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2001 at 9:00 a.m. APPEARANCES: Lisa Cooney, C.P.C. appeared through Stephen Paul Forrest, Esq., Sanders & Parks, P.C.; the Arizona Board of Behavioral Health Examiners appeared through Marc H. Harris, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence on the factual issue of whether a counselor-client relationship existed between Ms. Cooney and L.R., such as to render the sexual intimacies they later shared unprofessional conduct on Ms. Cooney’s part. Based on the evidence offered at hearing, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Board of Behavioral Health Examiners (“the Board”). FINDINGS OF FACT Background/Undisputed Facts The Board issued Certified Professional Counselor Certificate No. CC1595 to Ms. Cooney. In April 1997, Psychological and Consulting Services’ principal Steven R. Gray, Ed.D., hired Ms. Cooney as an independent contractor to provide professional counseling services to Dr. Gray’s clients. Ms. Cooney primarily conducted group counseling sessions for sexual offenders, sexual addicts, and wives whose husbands had been incarcerated for sexual offenses. Dr. Gray supervised her rendition of professional services. Dr. Gray and Ms. Cooney agreed that Ms. Cooney would counsel clients that Dr. Gray referred in facilities that Dr. Gray provided and, in exchange, would pay him a portion of the professional fee she collected. Dr. Gray’s wife Sandy also worked at Psychological and Consulting Services. Mrs. Gray had a daughter from a previous marriage, L.R., who at the time of the events at issue in this matter was nineteen years old. L.R. had lived with her natural father in Tucson until after she graduated from high school. During L.R.’s junior and senior years in high school, she had seen a psychologist in Tucson for approximately 11 weeks at her step-father’s recommendation. L.R. testified that Dr. and Mrs. Gray attended the first appointment with her, but she attended all subsequent sessions by herself. She expected the psychologist to keep the matters she discussed privately with him confidential. In the summer of 1997, L.R. moved to the Phoenix area and lived with Dr. and Mrs. Gray. When she started college at Arizona State University in the fall, she moved into a dorm. Even after L.R. no longer lived with her step- father and mother, she came to their office on occasion to perform filing and visit them. L.R. met Ms. Cooney at the Psychological and Consulting Services’ offices. In early 1998, L.R. saw Ms. Cooney at her office. According to L.R., the meeting was a scheduled professional therapeutic counseling session. According to Ms. Cooney, the meeting was an unscheduled meeting between acquaintances during which she gave human comfort but not professional services. The parties’ disparate characterizations are set forth in detail below. On Memorial Day 1998, Dr. and Mrs. Gray, Ms. Cooney and her partner, and L.R. went out to dinner at Rustler’s Roost restaurant. The group went to a bar in Tempe, where they shot pool and drank liquor. Dr. and Mrs. Gray then went home. Because Ms. Cooney and her partner had been drinking, L.R. drove them back to the Pointe South Hilton, where they had rented a room. The three sat in the living room drinking from the minibar and talking. Later on Memorial Day evening, the parties stipulated that L.R. and Ms. Cooney engaged in sexual intimacies. After Dr. and/or Mrs. Gray learned of the sexual intimacies, Ms. Cooney’s independent contractor relationship with Psychological and Consulting Services was terminated at its Phoenix area office. She has since moved to California, where she works as a counselor. L.R.’s Testimony L.R. testified that she had a preset appointment with Ms. Cooney at her office in the spring of 1998. L.R. does not remember whether she or her mother had set the appointment. Although L.R. searched Psychological and Consulting Services’ records at the Board’s request, she was unable to find documentary evidence of the appointment. L.R. does not remember the exact date or time of the appointment. She would have written the date down in her appointment book, but had discarded the appointment book by the time the complaint was made to the Board against Ms. Cooney’s counseling certificate. L.R. recalls that the appointment was at dusk, between seven and eight p.m. She believes it was on a Thursday. L.R. did not spend a lot of time at her parents’ office and did not remember having any personal conversations with Ms. Cooney. She did not know whether Ms. Cooney was an employee or an independent contractor, but thought that Dr. Gray was supervising her. L.R. expected Ms. Cooney to maintain confidences gained in the session. L.R. did not think that the counseling session would place Ms. Cooney in an untenable situation. L.R. later realized that it would have been inappropriate for Ms. Cooney to counsel L.R. while working for and being supervised by her step-father. L.R. remembers looking forward to the appointment because she was feeling bad about a number of things. She was not getting along with her parents, was in her first year of college, was living in the dorm, was employed as a hostess or server at a restaurant, and was involved in a romantic relationship with a co-worker who was “about the fifth” in a “string of bad dating decisions.” L.R. remembers that her mother was at the office when L.R. arrived for her appointment. She was not upset and met Ms. Cooney in the second, largest office at Psychological and Consulting Services. L.R. does not remember Ms. Cooney taking a family of origin or treatment history. L.R. remembers Ms. Cooney “just started talking.” L.R. does not remember if Ms. Cooney asked specific questions or just asked, “What’s going on?” Ms. Cooney eventually asked questions about the co-worker with whom L.R. was having a relationship and instructed L.R. to address Ms. Cooney as if she were her boyfriend. L.R. remembers raising her voice when she addressed her boyfriend/Ms. Cooney. L.R. and Ms. Cooney discussed the reasons L.R. felt she had no power in her life. Ms. Cooney actively engaged L.R. in conversation. L.R. remembers that Ms. Cooney offered her the use of a foam bat when L.R was talking about her boyfriend. L.R. declined. L.R. did not discuss sexual abuse because the sex was incidental to her relationship with her boyfriend. L.R. remembers that Ms. Cooney asked her to lie down on the couch before L.R. began talking about her boyfriend. L.R. does not remember how long she was lying down. While she was lying down, she remembers that Ms. Cooney tapped her forehead. Ms. Cooney also administered a breathing exercise to cause L.R. to calm down. L.R. does not remember Ms. Cooney playing a relaxation tape during the session. L.R. remembers crying during the session and that, after the session, she realized that her mascara had run. She does not remember when or in response to what question she became upset and started crying. She remembers discussing her relationship with her parents and mentioning her sister in response to one of Ms. Cooney’s questions. L.R. recalls that the session lasted approximately one hour, certainly much longer than 10 or 15 minutes. Ms. Cooney made notes during this time. L.R. does not remember how the session ended or whether future appointments or a referral to another counselor were discussed. She does not remember whether Ms. Cooney provided her business card. L.R. does not remember Ms. Cooney saying she was leaving town and would not be available for appointments for a while. L.R. had brought $70, a fifty-dollar bill and a twenty-dollar bill, to the session because she knew Ms. Cooney’s hourly rate for individual sessions was $70. When L.R. gave both bills to Ms. Cooney, she returned the fifty- dollar bill to L.R., with the explanation that L.R. was due a “student discount.” L.R. did not look in Psychological and Consulting Services’ office records to see if Ms. Cooney showed the money on the accounts she submitted to Dr. Gray. L.R.’s mother was still at the office when the session concluded. L.R. thought she had stayed to make sure that L.R. was all right. L.R., Mrs. Gray, and Ms. Cooney all walked out together. L.R. did not again seek counseling from Ms. Cooney or from anyone else between the time L.R. saw Ms. Cooney at her office and the date of the hearing. At the time of the hearing, L.R. was married and had graduated from ASU with a degree in Criminal Justice Studies. Ms. Cooney’s Testimony Ms. Cooney testified that, although she charged $50/hour before she went to work for Dr. Gray, she raised her hourly rate to $60/hour to pay him the referral fee. She never charged clients $70/hour for individual counseling at Psychological and Consulting Services. Ms. Cooney testified that L.R. spent large amounts of time at her parents office, at least sporadically. The office had a very friendly atmosphere and Dr. and Mrs. Gray and L.R. were always making jokes and teasing each other. L.R. helped Ms. Cooney with her computer. L.R. had shared her ambition to be an FBI agent with Ms. Cooney and asked her how she had gotten into counseling professionally and whether she enjoyed it. Ms. Cooney became friends with Dr. and Mrs. Gray and went out to dinner with them. Before Memorial Day in 1998, L.R. did not go on these social excursions, although Ms. Cooney believes she was invited. Ms. Cooney testified that, one evening in early 1998, as she was preparing to leave, L.R. had appeared at her office door, sobbing and crying, because “Steve [Gray] had stepped on her.” There was no preset appointment, which would have been unethical since Ms. Cooney worked for L.R.’s parents. Ms. Cooney put down her bags and said, “Wow, what’s happening?” L.R. came into the office, Ms. Cooney closed the door, and the two sat down on two couches, facing each other. L.R. made comments about how stressed she was and how she made bad decisions. Ms. Cooney responded, “uh huh.” She probably did tell L.R. to breathe while she was sobbing but did not administer any breathing exercises. Ms. Cooney did not remember that L.R. confided any specific personal problems. Ms. Cooney did not touch L.R. Ms. Cooney played a commercial relaxation tape that is available from Borders or another bookstore. The tape segment begins with soothing music, followed by a voice giving a relaxation exercise. In her professional practice, Ms. Cooney does not use relaxation tapes in a first session or foam bats at all. Ms. Cooney did not start a file for L.R. or take any notes. Ms. Cooney performed no intake evaluation and took no history. She did not perform any intervention or cognitive therapy for L.R. Ms. Cooney did not take any money from L.R. Ms. Cooney testified that her encounter with L.R. lasted no more than 15 or 20 minutes. The segments on the commercial relaxation tape only last 10 or 15 minutes. After L.R. stopped crying, Ms. Cooney and L.R. left the office, Ms. Cooney leaving last because she had to turn the lights out. Mrs. Gray was waiting. The three walked down to the parking lot together. Because the Grays had covered parking and Ms. Cooney did not, Ms. Cooney left Mrs. Gray and L.R. at the bottom of the stairs. Ms. Cooney offered into evidence her personal calendar, which shows four individual appointments on February 11, 1998, the latest ending at 7:00 p.m., but no appointment for L.R. The calendar also shows “Dinner with Johnnie” and “Pack for Seattle.” Ms. Cooney testified that she knew that the encounter with L.R. had occurred on February 11, 1998, because she was late for meeting her cousin’s husband Johnnie, who waited in the parking lot while she dealt with L.R., and because she had to pack that evening to go to a five-day internship in Seattle that began the next day. John Joseph Esposito, Ms. Cooney’s cousin’s husband and the “Johnnie” to whom the calendar referred, testified that he had traveled to the Phoenix area regularly for his business and usually saw Ms. Cooney. The only time that Ms. Cooney was available to meet him on this trip was at 7:00, after her last appointment, on February 11, 1998. Mr. Esposito testified that he pulled into the parking lot next to Ms. Cooney’s car at about 6:45 p.m. He smoked a cigarette. At 7:00 p.m., Mr. Esposito went up to the entrance of the office. He saw an “upset girl who was sobbing” go from the landing into an office. Although he did not know whether the office was Ms. Cooney’s, Mr. Esposito returned to his car and smoked another cigarette or two. Mr. Esposito’s Toyota has an clock on the dash. Twenty minutes after he saw the upset girl, Ms. Cooney approached his truck. He said, “Thanks for keeping me waiting.” Ms. Cooney said that the upset girl was the boss’s daughter. Mr. Esposito and Ms. Cooney then went out to dinner and did not discuss further the incident. If Ms. Cooney had provided professional counseling to L.R. on February 11, 1998, it would have been unethical for her to go out to dinner with Dr. and Mrs. Gray and L.R. on Memorial Day 1998. Expert Testimony Ms. Cooney testified that she distinguishes professional counseling activities from advice to friends. She does not act as a professional counselor merely because she listens to a friend’s troubles and offers sympathy. When Ms. Cooney acts as a professional counselor, she asks guiding, probing questions and obtains a history. She employs behavioral modalities and engages in active listening with the purpose of reflecting back on what the client says so that the client can feel that Ms. Cooney, as a professional counselor, is in alliance with the client. This is different from interaction with friends or acquaintances. Ms. Cooney testified that she was not acting as a counselor when she comforted L.R. on February 11, 1998. Sarah Munigle Sorenson, C.P.C., testified that she has been a Certified Professional Counselor in Arizona since January 1995 who worked with or under the supervision of Dr. Gray between October 1999 and August 2001. One of the secretaries at Psychological and Consulting Services approached Ms. Sorenson to discuss the secretary’s daughter on Mrs. Gray’s recommendation. Ms. Sorenson testified that she talked briefly to the secretary at her work station. Ms. Sorenson testified that she did not believe that a counselor-client relationship came into existence between herself and the secretary. It is impossible for a counselor to divorce his or her professional status and role from the human relationships in his or her life. Patrick Bennett Romine, Ph.D., a certified counselor and licensed psychologist who is the Dean of Counseling and Human Services at the University of Phoenix, testified on behalf of the Board. Dr. Romine teaches courses on professional ethics and professionalism in client relationships. According to Dr. Romine, the existence of a client-counselor relationship does not depend on an intake form having been completed, an inquiry into the client’s history having been made, or a treatment plan, goals, or file having been established. All that is required is a counselor who uses his or her professional skills with a person who has a problem or concern. A certified counselor who uses his or her professional skills and training in interactions with others cannot discard the mantle of a professional even if it is burdensome or inconvenient. Even if Ms. Cooney’s version of her encounter with L.R. is credited, Dr. Romine believes a client-counselor relationship existed because Ms. Cooney used her professional skills to calm L.R. down. Specifically, Ms. Cooney listened to L.R., provided space for L.R. to express herself, and played a relaxation tape. It is not unusual for a professional counselor to provide only a single therapeutic session to a client. Dr. Romine testified that the American Counseling Association (“ACA”) Code of Ethics and Standards of Practice A.7.b prohibit a counselor from engaging in sexual intimacies with former clients a minimum of 2 years after termination of the counseling relationship. The reason for this prohibition is that, when a therapeutic relationship exists, the client is in a position of trust and dependency vis-à-vis the counselor, who may occupy an elevated status by virtue of his or her role. Dr. Romine believes that Ms. Cooney violated this ethical provision when she shared sexual intimacies with L.R. on Memorial Day 1998 because L.R. had been Ms. Cooney’s client a few months earlier. Dr. Romine agreed that some of his colleagues disagreed with his opinion that, whenever a counselor used his or her professional skills to calm or comfort a neighbor or acquaintance, a counselor-client relationship existed. ACA Code of Ethics and Standard of Practice A.6.a warns counselors to avoid so-called dual relationships because their “influential positions” with respect to their clients could lead to exploitation of trust and dependence. Counselors therefore should avoid due relationships that could impair professional judgment or increase the risk of harm to clients, such as “familial, social, financial, business, or close personal relationships” with clients. Dr. Romine agreed that, if L.R.’s mother or father had referred her to Ms. Cooney for counseling, a dual relationship would have been created because Ms. Cooney’s duty to her supervisor/employer would conflict with her duty to her client. APPLICABLE LAW “‘Counseling principles, methods, procedures and services’ includes counseling, appraisal, evaluation, assessment of dysfunctional behavior, consulting, referral, education or research.”[1] “‘Practice of professional counseling’ means the professional application of counseling principles, methods, procedures or services to assist individuals, couples, families and groups to achieve interpersonal, intrapersonal, social, educational or vocational development and adjustment and to promote optimal mental health.”[2] “‘Unprofessional practice’ includes . . . [a]ny conduct or practice which is contrary to recognized standards of ethics in the behavioral health profession or which constitutes a danger to the health, welfare or safety of a client.”[3] “[T]he board, after a hearing, may issue an order of censure, impose a civil penalty of not to exceed five hundred dollars, impose probation, refuse to issue or renew a certificate or suspend or revoke a certificate for unprofessional practice.”[4] CONCLUSIONS OF LAW The Board bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[7] The issue is whether L.R. was Ms. Cooney’s client. L.R. clearly considered herself to be Ms. Cooney’s client. Even under Ms. Cooney’s version of the facts, L.R. was a young girl who admired Ms. Cooney and valued her counsel and advice. The elements of dependency and trust were present in the relationship. Nonetheless, Ms. Cooney’s version of events is more credible than L.R.’s due to corroborating documentary and testimonial evidence and the unlikelihood that Dr. and Mrs. Gray, who did not testify, would have encouraged or sanctioned an ethical impropriety by Ms. Cooney that involved both her employment and their daughter. The client-counselor relationship incorporates an exceptionally high degree of trust along the continuum of human relationships. The counselor’s mere disavowal of the relationship is entitled to little weight.[8] The ACA Code of Ethics and Standards of Practice does not define client and does not prohibit a counselor from engaging in sexual intimacies with someone she has comforted, even if the comfort may have drawn on the counselor’s professional training or experience.[9] If such a prohibition existed, it appears that counselors could never begin intimate relationships after obtaining professional certification. Ms. Cooney seduced L.R., a vulnerable young woman and Ms. Cooney’s boss’s daughter. The seduction is reprehensible and shows extremely poor judgment that may reflect on Ms. Cooney’s professional competence and judgment. But, although the issue is a close one,[10] the evidence does not establish that a counselor-client relationship was created between Ms. Cooney and L.R. in early 1998. The Administrative Law Judge therefore can find no violation of applicable statute. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board close this complaint with a letter of concern in Ms. Cooney’s certificate file, but without formal discipline. Done this day, December 19, 2001.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of December, 2001, to:

Board of Behavioral Health Examiners Debra Rinaudo, Executive Director ATTN: Patricia Reynolds 1400 West Washington, Room 350 Phoenix, AZ 85007

By ___________________________ ----------------------- [1] A.R.S. § 32-3251(2). [2] A.R.S. § 32-3251(5). [3] A.R.S. § 32-3251(9)(i).

[4] A.R.S. § 32-3281.

[5] See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996).

[6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[7] Black’s Law Dictionary at page 1064 (6th ed. 1990). [8] See Arkansas Board of Examiners in Counseling v. Carlson, 334 Ark. 614, 621, 976 S.W.2d 934, 938 (1998) (Despite counselor’s disavowal, Arkansas Supreme Court upheld board’s discipline because “there is substantial evidence to support [its] finding that Carlson had seen RMN as a counseling client . . . .).

[9] This is in contrast to attorneys, who could be sanctioned for “‘[a]ny action or omission, either related or unrelated to the practice of law, indicating mental or moral unfitness to continue to practice the law.’” In re Zussman, 86 Ariz. 272, 273, 344 P.2d 1021 (1959) (quoting what had been codified at time of case as Ariz. S. Ct. Rule 29(b)(4)). A lawyer, unlike a counselor, may be sanctioned for nonprofessional misconduct that does not involve a client or the lawyer’s professional activities.

[10] Ms. Cooney’s encounter with L.R., which took place behind a closed door and involved a very upset and vulnerable person, is much closer to Dr. Romine’s description of a counselor-client relationship than Ms. Sorenson’s account of her encounter with the secretary, which took place in a public place, apparently at arm’s length.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826