When we wrote on March 7 that the Louisiana State Board of Dentistry (LSBD) functions simultaneously as adjudicator, prosecutor, judge and jury in disciplinary hearings against dental professionals, we were not embellishing or fudging the facts. Quite the contrary; we were being quite literal.
Take the behavior of LSBD legal counsel Brian Begue, for example, in the 2010 hearing on charges brought against former Shreveport dentist C. Ryan Haygood, a Magna Cum Laude graduate of Louisiana Tech University with a degree in molecular biology and the LSU School of Dentistry.
Since 1995, Begue, rather than serve as a staff attorney at a set salary, has received eight separate contracts from the board totaling an eye-popping $2.825 million, including $450,000 for each of the last five three-year contracts.
(And State Sen. Robert Adley, Gov. Bobby Jindal and others are carping about the attorney general hiring a private law firm to pursue that lawsuit against 97 oil and gas companies by the Southeast Louisiana Flood Protection Authority-East? But that’s another story.)
Begue’s role in his capacity as board legal counsel, according to a Sept. 26, 2012, ruling by the Louisiana Fourth Circuit Court of Appeal in New Orleans, is restricted to that of an advisor “who is independent of complaint counsel and who has not participated in the investigation or prosecution of the case.” (Emphasis added.)
The appeal court, in its ruling, noted that Begue “participated in the hearing before the board’s panel both as prosecutor and adjudicator” during Haygood’s hearing before the board. An adjudicator is one who presides, judges and arbitrates during a formal dispute and as such, may rule on evidentiary objections and other procedural questions if so delegated to do so by the board chairman.
Moreover, the court said, the LSBD “condoned Mr. Begue’s behavior and failed to acknowledge Dr. Haygood’s objection that Mr. Begue was overstepping his role in the proceedings.”
The appeal court went even further to say that the board’s hearing record was “replete with instances in which Mr. Begue acted as prosecutor throughout the proceedings, and at times simultaneously acted as prosecutor, panel member and independent counsel,” and noted that in a separate 1997 case, the Louisiana Supreme Court said that the “commingling of prosecutorial and adjudicative functions violates both the letter of the Louisiana Administrative Procedure Act and the due process goals it is designed to further.” The idea of the same person serving as judge and prosecutor “is anathema under our notions of due process. Such a scenario is devoid of the appearance of fairness,” The appeal court said.
To fully appreciate the extent of Begue’s—and by its complicity, the board’s—willingness to disregard any semblance of fairness or due process, consider this gem: the court observed that Begue’s brazen behavior went so far as “even ruling on his own objection.” (emphasis added.)
The absurdity of such actions brings to mind the episode of the old Danny Thomas CBS series Make Room for Daddy in which he launched The Andy Griffith Show. In that episode, Thomas, in the role of Danny Williams, is pulled over for speeding by Griffith in the role of Mayberry Sheriff Andy Taylor. At the courthouse, it turns out that Andy is also the judge and when he imposes a fine, Danny demands to speak to the mayor. “All right,” drawls Andy as he picks up the phone and tells the operator to give him the mayor’s office. A second phone on the desk of the sheriff/judge rings and Taylor picks it up and answers, “Mayor’s office, Mayor speaking.”
Any first-year law student would know an attorney cannot rule on his own objection. That is very definition of a kangaroo court. And if he is not acquainted with that basic rule that every high school debater knows, the practice of law is the last occupation he should be pursuing. Perhaps he would be better suited to cleaning Porta-Johns.
And for that, he holds a $450,000 contract with the board.
But it gets better.
Ten years earlier, in hearings on charges against Dr. Randall Schaffer, Begue had openly violated a Louisiana Supreme Court order to cease participating in board proceedings by serving as both prosecutor and board general counsel. Yet, he continued that same practice in Dr. Haygood’s hearings before the board—and in all likelihood, will again in the next case against some unsuspecting dentist.
Haygood ultimately was convicted on eight separate charges, three of which had been dropped before his hearing took place, a quantum stretch its own right on the part of the board. He was fined $5,000 on each of the eight counts ($40,000) and ordered to pay not only his own attorney fees but those of the board and the fees of board investigator Camp Morrison (combined total of $133,000), for a total financial penalty of $173,000. Additionally, the board ordered permanent revocation of Haygood’s dentistry license.
The activities of board-contracted private investigator Morrison are almost as bad—except he has received eight contracts since 1997 totaling “only” $1.735 million, more than a million dollars less than Begue, but still nothing to sneeze at.
What’s more, the board pushed a bill through the Louisiana Legislature two years ago that allows the board to provide legal representation for Morrison—at the board’s (read: taxpayer) cost, a benefit bestowed upon no other state contractor.
Also, Morrison is provided a rent-free office in the LSBD suite on the 26th floor of One Canal Place in New Orleans, a suite for which the board pays a whopping $4,700 per month in rent.
Occasionally, contract workers for state agencies are provided work space in state offices but that is only for those jobs which cannot be performed offsite. But it is unheard of for a state contractor to be provided legal representation. In fact, the reverse is true. Contractors are required to maintain their own errors and omission insurance and to provide their own legal counsel in case of litigation—and those contracts contain hold harmless clauses, or indemnification, for the state.
So, the question obviously is what did Dr. Haygood do to bring the wrath of the LSDB down upon him?
A better question might be what did Morrison and Begue do?
We will attempt to address the two questions in order.
Apparently, Haygood’s biggest sin was opening offices in Shreveport and Bossier City and initiating an aggressive advertising campaign that resulted in attracting former patients of prominent Shreveport dentist Ross Dies who was one of several defendants named in a federal lawsuit filed by Haygood.
Other defendants include Morrison; unlicensed investigators Karen Moorhead and Dana Glorioso hired by Morrison and who Haygood says posed as patients, giving him false symptoms in order to help Morrison build his case against Haywood; former LSDB executive director Barry Ogden; members of LSBD, and several dentists who Haygood says assisted LSDB in its investigation of him.
The fact that board member Dr. H.O. Blackwood also was a Haygood competitor in the Shreveport area didn’t help, Haygood says in his lawsuit.
Haygood says in his lawsuit that Ogden and Begue were “well aware” at the time Ogden appointed Begue as independent counsel that Begue had already “participated in the investigation or prosecution of the case” against Haygood. “In fact, Begue began discussing the investigation with Morrison as early as April 2007, at the outset of the investigation, and he conducted conversations with Ogden, Morrison and other board members regarding the status of the investigation long before he (Begue) was appointed independent counsel.” Haygood said that as long-time counsel for the board, Begue “was aware that his activities prior to the appointment by Ogden disqualified him for service as independent counsel.”
Haygood said that aggressive, unrestrained investigation tactics employed by Morrison and Begue “create an obligation of the board to pay costs that it is typically unable to pay,” costs that are passed on to the dentist under investigation if he is convicted—and few brought before the board escape without some type of monetary penalty.
“Morrison utilizes coercive and threatening tactics when interviewing witnesses,” Haygood said. While conducting his investigation of Haygood, for example, Morrison appeared at the home of Haygood’s hygienist, Julie Snyder, at 8:30 p.m. during her maternity leave, the lawsuit says. “Finding her home alone with her newborn baby, Morrison told Snyder that he knew that she and Haygood were guilty and pressed her to admit wrongdoing, Haygood says, adding that other dentists “have had to have police officers assist in removing Morrison from their offices after he refused to leave.”
It should be noted that when a dentist is brought before the board for a hearing on charges brought against him, the board is represented by Begue and another lawyer designated as the prosecuting attorney. The dentist, on the other hand, is not allowed to have legal representation before the board.
The Fourth Circuit Court of Appeal, in its September 2012 ruling, noted that board member Dr. Conrad McVea, Jr. directed Morrison “to send people in” to Haygood’s offices. This was the son of former board member Conrad McVea, Sr. who told Dr. Randall Schaffer, who is Jewish, that he could never maintain the professional standard of care in his practice because he had never accepted Jesus as his personal savior. The obvious question here is: are board memberships passed down from father to son like some type of inheritance or family heirloom?
Moorhead was recommended as one of the two unlicensed investigators to pose as patients by Dr. White Graves, a former board member and Moorhead’s employer, the Fourth Circuit decision says.
“Dr. Haygood argues that he was not afforded due process at the hearing before the board,” the appeal court said. “He also contends that during four days of testimony, Mr. Begue ‘repeatedly interfered and zealously advocated on behalf of the board by cross-examining witnesses, supplying objections to complaint counsel, and questioning the credibility of Dr. Haygood.’
“We have comprehensively reviewed the transcripts of the four-day hearing and we agree with Dr. Haygood’s representation of Mr. Begue’s actions.”
The Fourth Circuit’s decision further said that Begue’s “twofold role as prosecutor and adjudicator violated Dr. Haygood’s right to a hearing that is fair and impartial. The type of commingling found in this case is strictly prohibited by the Louisiana Administrative Procedure Act.
“Based upon our review of the record, we find that Mr. Begue’s functions of general counsel, independent counsel, prosecutor and fact-finder were so interwoven that they became indistinguishable, which created the appearance of impropriety and deprived the proceedings of the imperative and fundamental appearance of fairness.
“Therefore, the board’s decision to revoke Dr. Haygood’s license must be reversed,” the ruling said, adding that the board “improperly combined the prosecutorial and judicial functions by allowing its general counsel, Mr. Begue, to serve as the prosecutor, general counsel, panel member and adjudicator for the proceedings. We hold this conduct is violative of the Louisiana Administrative Procedure Act and Dr. Haygood’s due process right to a neutral adjudicator and a fair hearing.”
“We find the Louisiana State Board of Dentistry’s decision to revoke Dr. C. Ryan Haygood’s dental license is arbitrary and capricious; therefore, we reverse the trial court’s judgment (the state district court had earlier upheld most of the board’s actions) which affirmed the revocation of Dr. Haygood’s license and remand this matter to the board for a new hearing.”
Wait. What? Remanded to the board for a new hearing?
Yep. The Haygood matter went right back to the board to be heard by the same panel.
You don’t need three tries to guess the odds of a different outcome for the rehearing. One might have a better chance in Warren Buffett’s $1 billion prize for picking the winner of every game in the NCAA March Madness bracket.
Haygood, realizing he would never receive a fair hearing, much less a different outcome in repeated appearances before the board, finally packed up his chair and drill and moved to North Carolina where he currently practices his trade. But because he refuses to give the board the satisfaction of backing down, his hearing is still pending.
And that is how kangaroo courts work.