ALJDEC decisions subject to certification as final

2022F-1111-BHE · Board of Behavioral Health Examiners · 2022-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Gary Tupper, LMFT

Licensed Marriage and Family Therapist

In the State of Arizona

Respondent

No. 2022F-1111-BHE

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 23, 2022.

APPEARANCES: Assistant Attorney General Mona Baskin, Esq. appeared on behalf of the Arizona Board of Behavioral Health Examiners. Respondent Gary Tupper appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Gary Tupper, (Respondent), was a licensed marriage and family therapist (LMFT-15134) by the Arizona Board of Behavioral Health Examiners (Board) since July 2014.

On or about June 20, 2020, Respondent submitted a renewal application to the Board. On Part III of the application, Respondent answered “yes” to the following on question (d):

Have you ever been arrested, charged with, convicted of or pled nolo contendere to a criminal offense, other than a minor traffic violation (DUI history must be reported), in any city, county, state, federal or tribal court, or in any other country? If yes, please provide copies of the police and court documents such as the police narrative, complaint, the pleadings and final order(s). You must answer "yes" even if you received a pardon the charges were dropped the conviction was set aside the records were expunged, or your civil rights were restored.

Respondent explained in his application that he was cited for harassment by his ex-wife where he went to pick up his children for the Christmas holiday.

On question (e), Respondent answered “no” to the following:

Have you ever entered into any type of pretrial diversion or deferred prosecution agreement with a state or federal government? If yes, please provide a copy of your pretrial diversion agreement.

On or about June 24, 2020, the Board renewed Respondent’s license.

On or about August 19, 2020, the Board received a complaint from Francine Akins-Arbuckle MA-LPC. The complaint indicated that Respondent failed to report an arrest and subsequent misdemeanor charges to the Board. The complaint also indicated that Respondent failed to excuse himself from a court ordered group once his former client began attending the group.

On or about September 16, 2020, Respondent timely filed a response to the complaint. Respondent indicated that due to discussions with a Gilbert prosecutor, he was informed that he did not have to report the Gilbert Police Department complaint and that there were no charges against him. Further, Respondent argued that as to the former client in his same group, he “was under no obligation to leave the group in which I already was an established member. If a former client...started in my group, then she had every right to go join a different group.”

The Board then assigned Jarrett Carver to conduct an investigation. As part of the investigation, Board staff subpoenaed Gilbert police records for case numbers 20-0776 and 19-14692, arrest reports, a citation, and Gilbert Municipal Court records and associated documents. Mr. Carver recommended that the Board find that Respondent violated A.R.S. § 32-3251(16)(l), A.R.S. § 32-3251(16)(ii), and A.R.S. § 32-3251(16)(c)(i).

On April 9, 2021, the Board held a scheduled meeting where Respondent’s case would be heard. The Board voted to offer Respondent the opportunity to execute a consent agreement for the voluntary surrender of his license or request a hearing before the Office of Administrative Hearings. Respondent chose the latter.

After a continuance, the matter proceeded to hearing on September 27, 2022.

The Board presented the testimony of Jarett Carver, and submitted 29 exhibits which were admitted into evidence.

Mr. Carver testified that he was the Investigations Manager for the Board and that he investigated this matter. Mr. Carver also testified as to the above timeline.

Mr. Carver testified that he interviewed Ms. Akins-Arbuckle to discuss her complaint. Ms. Akins-Arbuckle was the clinical director for the agency Respondent was referred to for his group therapy sessions. It was her belief, according to Mr. Carver’s testimony, that Respondent should have disclosed the criminal actions to the Board. Further, Ms. Akins-Arbuckle informed Mr. Carver that due to the possible conflict of interest with Respondent’s former client, Respondent should have removed himself from the group but failed to do so. Mr. Carver testified that Respondent’s failure to do so demonstrated Respondent’s impaired judgment.

Next, Mr. Carver detailed the records he received from the Gilbert Police Department, and Gilbert Municipal Court. Mr. Carver testified to the following:

On August 12, 2019, the Gilbert Municipal Court issued an Injunction Against Harassment (IAH) against Respondent as it related to Plaintiff M.O. Respondent was served with the same on August 20, 2019.

On or about August 23, 2019, M.O. contacted the Gilbert Police Department and reported that Respondent had violated the IAH on August 20, 2019, by sending her numerous e-mails after he was served with the IAH. M.O. further reported that Respondent also sent her messages on August 22, 2019. The Gilbert Police Department also interviewed Respondent and while he acknowledged sending the e-mails after the IAH was issued, he did so only because he believed that M.O. had blocked him. While the Gilbert Police Department indicated in the report that it was going to forwarded to the Town of Gilbert Prosecutor’s Office for charges, no charges were forthcoming.

On or about January 12, 2020, the Gilbert Police Department issued an Arizona Traffic Ticket for Failure to Comply with a Court Order. In its report regarding the same, the Gilbert Police Department noted that Respondent continued to e-mail M.O. on December, 22, 2019, January 5, 6, 8 and 12, 2020, in violation of the IAH. The report also indicated that Respondent did not contest the allegations and he was placed in handcuffs and arrested.

Following the arrest, charges were issued against Respondent for violation of A.R.S. § 13-2810.A.2 (Violation of Interfering with Judicial Proceedings). The matter was identified as State of Arizona v. Gary Arthur Tupper, 2020-CT-0000521. The matter was heard on January 13, 2020, and Respondent agreed to waive counsel. Responndent also agreed to enter into a Diversion Plea Agreement. As part of the Diversion Plea Agreement, the Court would suspend the entry of judgment until October 13, 2020, if he completed all services as directed by Gilbert Youth and Adult Resources.

On May 23, 2020, Respondent earned his Certificate of Completion from Enrichment Family Services LLC.

On October 5, 2020, based upon the State’s Motion to Dismiss due to Respondent completing the diversion requirements, the Gilbert Municipal Court dismissed the case against Respondent.

Mr. Carver testified that despite the above information, Respondent failed to disclose his arrest, charges and diversion plea agreement on his June 2020 renewal application. Mr. Carver testified further that had this information been disclosed, the Board would have likely investigated the same, however, because it was not, the Board simply renewed Respondent’s license.

In addition, Mr. Carver testified that while reviewing the e-mails from Respondent to M.O., he was concerned that Respondent may have disclosed confidential patient information, although he did not know for sure if any such information was actually disclosed.

Mr. Carver also testified that there is a hyperlink to the mandatory reporting statutes on the Board’s webpage and that if there were any questions as to whether to disclose, the Board representatives were available to take anonymous phone inquiries.

Counsel for the Board argued that Respondent’s license should be revoked, and that Respondent should be ordered to pay the Board’s costs associated with this action.

Respondent testified on his own behalf and submitted 8 exhibits which were admitted into evidence.

Respondent testified that he counseled 30 to 40 clients per week and believed that if his license was revoked, many clients would be harmed because of his lack of ability to practice.

Further, Respondent testified that the IAH was all due to a misunderstanding between him and M.O. who danced together at Whisky Row Gilbert. Respondent also did not deny sending the e-mails, however, he believed that it was M.O.’s fault for not blocking his messages when he requested she do the same.

Respondent also testified that he did not intentionally mislead the Board on his renewal application, rather he was acting upon the word of the Gilbert prosecutor who told him he did not have to report the incident to the Board. Further, Respondent also testified that based upon his review of the case file online, it was his belief the matter was sealed.

In addition, Respondent testified that he did not believe he had a potential conflict of interest with the former client being a part of his group therapy, and that it was her responsibility to remove herself from counseling if she felt uncomfortable.

Finally, Respondent testified that he disclosed the arrest and the court actions in his 2022 renewal application and that his license had been renewed. Therefore, he argued that his license should not be revoked.

CONCLUSIONS OF LAW

The Board has jurisdiction over Respondent pursuant to A.R.S. §§ 32-3251 et seq. and the rules promulgated by the Board relating to Respondent’s professional practice as a licensed behavioral health professional.

The Board has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazanno v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). It is “evidence which is of greater weight or more convincing than the 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.” Black’s Law Dictionary, 1182 (6th ed. 1990).

The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Board has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight.

4. A.R.S. § 32-3251(16)(c)(i) states, “’Unprofessional conduct’ includes the following, whether occurring in this state or elsewhere: (c) Making any oral or written misrepresentation of a fact: (i) To secure or attempt to secure the issuance or renewal of a license.” From the above facts, the Board has proved that Respondent violated this section as Respondent failed to disclose his arrest, charges and his diversion plea. The tribunal does not find Respondent’s testimony credible that a Gilbert prosecutor would tell him he did not have to disclose the information to the Board and that he acted upon the same. At a minimum, if Respondent was truly unsure he could have sought legal advice from his own counsel or anonymously contact the Board for information, or even checked the Board’s website for information. The evidence established he did not do the same, therefore there was no excuse for the failure to disclose the information during his June 2020 license renewal application.

5. Further, in Respondent’s subsequent Reply filed on October 4, 2022, he argued that he was protected under A.R.S. § 13-911. However, this law does not take effect until January 2023, at the application at bar was from June 2020. Therefore, even if the matter was sealed, which again, there was no timely nor credible evidence presented that it was, A.R.S. § 13-911 does not apply in this matter.

A.R.S. § 32-3251(16)(ii) states, “’Unprofessional conduct’ includes the following, whether occurring in this state or elsewhere: (ii) Violating any federal or state law, rule or regulation applicable to the practice of behavioral health.” A.R.S. § 32-3208(A) states, “A health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed.” Again, the Board has proved that Respondent violated this section as well because Respondent failed to report to the Board his criminal charges within ten working days from January 13, 2020.

Finally, A.R.S. § 32-3251(16)(l) states, “’Unprofessional conduct’ includes the following, whether occurring in this state or elsewhere: (l) Engaging in any conduct, practice or condition that impairs the ability of the licensee to safely and competently practice the licensee's profession.” Here again, the Board has proven that Respondent violated this section. The tribunal was specifically troubled that at hearing, Respondent still did not believe he owed a duty to his former client. Respondent misplaced the burden on his former client to remove herself from the group therapy when it was his responsibility to do so. Further, Respondent presented no evidence showing any possible hardship or issues that would have arisen with his plea agreement should he have left the group. Respondent simply took the easy way out and failed to acknowledge there was anything wrong with the arrangement.

Likewise, the tribunal finds Respondent’s testimony about M.O. troubling. Again, Respondent argued that it was somehow M.O.’s fault for not blocking the incessant and excessive messages to her both before the IAH was issued, and well after he was served. What this demonstrates to the tribunal, is that no matter how much good Respondent does for his clients, he fails to take accountability for his actions. To the tribunal, this shows an unwillingness and/or inability to be regulated. The violations are the result of the Respondent’s ignorance of the law, lack of a complete understanding of the Code of Ethics and its purpose, as well as poor judgment and decision making.

The State requested revocation of the Respondent’s license, a civil penalty and assessment of costs of the investigation. The Administrative Law Judge declines to address assessment of the costs of the investigation because no such costs were presented during the hearing. Absent such information, an informed recommendation cannot be made. The matter remains in the hands of the Board.

/ / /

RECOMMENDED ORDER

It is recommended the Respondent’s license be revoked, and the Board may assess reasonable costs accordingly.

-54864001

001

-137160-45720000Done this day, October 11, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Tobi Zavala, Executive Director

Board of Behavioral Health Examiners

Gary Tupper

[email redacted]

Mona Baskin

[email redacted]

-54864001

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-137160-45720000By Miranda Alvarez

Legal Secretary