JOHN LESTER, M.D.,                                 )
                      Plaintiff,                                    )
                                                                        )
vs.                                                                   )  Case No. 01C 1093
                                                                        )
KANSAS BOARD OF HEALING ARTS,   )
                      Defendant.                                )
____________________________________)

John Lester, M.D. timely filed for a Judicial Review of the Final Order of the Kansas Board of Healing Arts (hereinafter "Board") on September 14, 2001 pursuant to K.S.A. 77-601 et seq. The Final Order pertained to the Board's denial of Dr. Lester's application for reinstatement of his medical license.

A briefing schedule was set by the court in consultation with counsel and oral arguments were held on May 30, 2002. This court now deems the petition ready for ruling.

Pursuant to K.S.A. 77-621 the burden of proving the invalidity of the Board's action is on Petitioner Lester. In addition, K.S.A. 77-621(c) sets out the specific grounds under which the court may grant relief. Petitioner Lester asserts under K.S.A. 77-621(c) that the following grounds are applicable:

(4) the agency erroneously interpreted or applied the law;

(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;

(7) the agency action is based on a determination of fact, made or implied by the agency that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or

(8) the agency action is otherwise unreasonable, arbitrary or capricious.

Furthermore, the statute provides in K.S.A. 77-621(d) that the court in making its determinations consider the rule of harmless error.

Statutory and Case Law Regarding Reinstatement

K.S.A. 65-2844 sets out the procedures regarding application for reinstatement of a license governed by the Board of Healing Arts, while the Kansas Supreme Court in Vakas v. Kansas Board of Healing Arts, 248 Kan. 589, 808 P.2d 1355 (1991) ("Vakas I") sets out the following factors to be considered by the Board: ". . .(1) the present moral fitness of the petitioner; (2) the demonstrated consciousness of the wrongful conduct and disrepute which the conduct has brought the profession; (3) the extent of petitioner's rehabilitation; (4) the nature and seriousness of the original misconduct; (5) the conduct subsequent to discipline; (6) the time elapsed since the original discipline; (7) the petitioner's character, maturity, and experience at the time of the original revocation; and (8) the petitioner's present competence in medical skills."

248 Kan. at 589, Syl. 2.

Whether the Board Erroneously Interpreted or Applied the Law

Petitioner Lester argues that the Board incorrectly applied the 2000 amendment to K.S.A. 65-2836(c) to Petitioner Lester's application for reinstatement. The 2000 amendment to K.S.A. 65-2836(c) at issue provides as follows:

. . . In the case of a person who has been convicted of a felony and who applies for an original license or to reinstate a canceled license, the application for a license shall be denied unless a 2/3 majority of the board members present and voting on such application determine by clear and convincing evidence that such person will not pose a threat to the public in such person's capacity as a licensee and that such person has been sufficiently rehabilitated to warrant the public trust.

The 2000 amendment became effective July 1, 2000. Petitioner Lester submits that since he applied for reinstatement on May 8, 2000, the 2000 amendment to K.S.A. 65-2836(c) would not be applicable to his case.

The Board in its Final Order disputes Petitioner's argument on several grounds. First of all, the Board states that Petitioner Lester's license was revoked in December 1997 and pursuant to K.S.A. 65-2844 he was not eligible to apply for reinstatement until the expiration of three years from the effective date of the revocation. Therefore, Petitioner Lester would not have been eligible to apply for reinstatement until December of 2000 which was after the effective date of the amendments to K.S.A. 65-2836(c). This court finds that the Board was correct in applying the 2000 amendments to K.S.A. 65-2836(c).

Petitioner Lester argues in his Memorandum in Support of Petition for Judicial Review that the 2000 amendments added an additional burden of proof. K.S.A. 65-2844 establishes that the burden of proof for reinstatement of a license is on the applicant to show by clear and convincing evidence sufficient rehabilitation to justify reinstatement of the license. K.S.A. 2001 Supp. 65-2836(c) likewise requires clear and convincing evidence as the applicant's burden of proof but also does add that the Board must determine that the licensee will not pose a threat to the public in such person's capacity as licensee along with the findings that the person has been sufficiently rehabilitated to warrant the public trust. The additional language regarding "posing no threat to the public" appears to this court to be essentially the same finding as the rehabilitation of the applicant.

As pointed out by the Board in its Final Order it is inconsequential whether the 2000 amendments to K.S.A. 65-2836(c) were applied requiring the two third's (2/3's) majority or whether the prior law requiring a simple majority was applied because ". . . no motion was made to find applicant was sufficiently rehabilitated, though a request for such a motion was made by the Board's Chair." In short, Petitioner Lester "failed to obtain even a simple majority in favor of reinstatement." (A.R. Vol.1, p. 10251).

Therefore, this court does not find that the Board erroneously interpreted or applied the law regarding the 2000 amendments to K.S.A. 65-2836(c) nor regarding the burden of proof required for reinstatement.

Petitioner Lester argues that the Presiding Officer erred in allowing ex parte testimony to be entered into evidence after the close of evidence and that therefore the Presiding Officer should have been disqualified and a new Presiding Officer designated.

The underlying facts of what occurred as summarized by the petitioner are as follows:

After the close of all the evidence and after presentation of Proposed Findings of Fact and Conclusions of Law, the Attorney for the Board moved to admit additional testimony. The Motion was presented to the Presiding Officer and the General Counsel for the Board who was assisting the Officer with his duties.

Petitioner's Brief, p. 4.

Attached to Respondent's Motion to Reopen the Record and to Offer New Evidence were exhibits containing testimony which were kept under seal according the General Counsel for the Board. However, petitioner argues that the motion itself contained "enough prejudicial information to cause the recusal of the Presiding Officer." The motion included the following statement: "Applicant, of his own accord and without being prompted, questioned, or coerced by the polygrapher, reported that he had committed perjury upon advice of his legal counsel before the Kansas State Board of Healing Arts." According to the Certificate of Service attached to the motion, the motion was served on petitioner's counsel by mailing it on the same day it was filed with the Board, ie. June 14, 2001. On June 19, 2001, the Presiding Officer issued an Order Denying Respondent's Motion for Additional Evidence. The Order clearly states that the proffered evidence would not be considered by the Presiding Officer when issuing the initial Order.

Petitioner apparently argues that the Motion to Reopen the Record and to Offer New Evidence was an ex parte communication received in violation of K.S.A. 77-525(a).

K.S.A. 77-525(a) provides as follows:

A presiding officer serving in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding while the proceeding is pending, with any party or participant, with any person who has a direct or indirect interest in the outcome of the proceeding or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication.

In this case, the motion was filed and then mailed to Petitioner Lester. Although the presiding officer did not set the motion for hearing, the presiding officer denied the motion. Petitioner Lester refers to this motion and exhibit as "prejudicial" and thus the presiding officer's ruling denying the admission of the so-called "new evidence" was a ruling that was favorable to Petitioner Lester. Under Petitioner's definition of ex parte communications all motions filed by a party would be ex parte communications if the other party did not have an opportunity to respond even if the motion was resolved in favor of the non-responding party. This court does not find that the motion filed by the Attorney for the Board was an ex parte communication as described in K.S.A. 77-525.

Even if the motion was an ex parte communication under K.S.A. 77-525, K.S.A. 77-525(e) provides that the presiding officer shall place the ex parte communication and all responses to the communication on the record. This occurred. Also, Petitioner Lester could have requested an opportunity for rebuttal within 10 days after notice of the communication, but apparently chose not to do so.

K.S.A. 77-525 does not require the disqualification of a presiding officer even if the officer receives ex parte communication. K.S.A. 77-525(f) provides that a presiding officer may be disqualified if necessary to eliminate the effect of an ex parte communication received in violation of this section. However, this court does not find that the motion was an ex parte communication. Even if it could be construed to be an ex parte communication, the presiding officer denied the motion and ruled that the proffered evidence (the exhibits) would not be considered by the presiding officer.

Petitioner Lester further contends that there was no way that the presiding officer could have ignored the "prejudicial" information presented to him. Petitioner Lester implies in the Petition for Judicial Review that the finding that Petitioner Lester had "a pattern of dishonesty that is inconsistent with his claims of rehabilitation," (Initial Order Finding No. 30, A. R. Vol. 1, p. 10201) must have been based on the "charge of dishonesty" in the Board Attorney's motion.

However, Finding 30 in the Initial Order must be viewed in its entirety:

30. The Presiding Officer finds that Applicant has a pattern of dishonesty that is inconsistent with his claims of rehabilitation. Applicant testified that his completion of the sexual abuse treatment program and aftercare was a significant accomplishment and suggests that this is evidence he is rehabilitated from his sexual misconduct. But he also admits that he used deception so the he could complete the program, telling the program facilitators what he thought they wanted to hear. The Presiding Officer finds that either Applicant's participation in the program was a pretense or he continues not to acknowledge his misconduct.

It is clear that the Presiding Officer's finding relating to the Applicant's pattern of dishonesty was based on Petitioner Lester's own inconsistent testimony.

This court does not find that the Board engaged in unlawful procedure nor that it failed to follow prescribed procedure with regard to the Attorney for the Board's Motion to Reopen the Record.

Whether the Board Action Was Based on a Determination of Fact, Made or Implied by the Agency That Is Not Supported by Evidence That Is Substantial When Viewed in Light of the Record as a Whole.

Petitioner Lester first contends that the initial order ignored the testimony of the expert witness designated by Lester and therefore the initial order is not supported by substantial evidence. Lester presented the written report and testimony of John H. Wisner, M.D., a board certified psychiatrist, as an expert witness. Dr. Wisner found that Dr. Lester "does not present a measurable risk of subsequent unprofessional or criminal behavior were his license to practice be in some fashion restored." (A.R. Vol. 2, p. 10584).

The Board in its Response points to two findings in which the Presiding Officer specifically noted and considered Dr. Wisner's testimony. (Findings of Fact No. 21, A.R. Vol. 1, p. 10198 and Findings of Fact No. 25, A.R. Vol. 1, p. 10200). These findings of fact controvert Petitioner's argument that Dr. Wisner's expert opinion was ignored and that therefore the initial order was not supported by substantial evidence. An expert's opinion is not the sole determinant of Petitioner's fitness for reinstatement as that is the ultimate decision of the Board based on all the evidence presented.

Petitioner states that the events which occurred in 1993 and 1994 are controverted and alleges that the Presiding Officer has made the events an issue. However, it was petitioner's own inconsistent statements that have raised the issue. The descriptions of the events of 1993 and 1994 (ie. Findings 5 and 6, A.R. Vol., p. 10195) appear to be summaries of the descriptions of the events that are included in the Kansas Court of Appeals' decision in petitioner's criminal case (A.R. Vol. 3a, p. 10818) and petitioner's own descriptions of his conduct in his personal maintenance program contract ("PMPC"), a document he created as a therapy tool in the sexual abuse treatment program. Findings 15 and 24 (A.R. Vol. 1, pp. 10197 and 10200) summarize petitioner's own testimony before the Board in the hearing on his Petition for Reinstatement. All of these findings are supported by substantial evidence in the Agency record.

Petitioner alleges that Finding Number 10, (A.R. Vol. 1, p. 10196) relating to the voluntariness of the sex abuse treatment program (SATP) is contradictory. Petitioner alleges that the SATP is not voluntary because of the severe consequences imposed on an inmate who fails to participate in the program (such as loss of good time credit, increased security level, and loss of benefits, etc.) Petitioner also cites the 10^th Circuit Court of Appeals holding that the SATP was not voluntary. Lile v. McKune, 224 F. 3d 1175, 1181-2 (10^th Cir. 2000). However, the United States Supreme Court recently reversed the 10^th Circuit Court of Appeals and held that the programs involved (ie. SATP) involved a choice. "It is beyond doubt, of course, that respondent would prefer not to choose between losing prison privileges and accepting responsibility for his past crimes. It is a choice, none the less, that does not amount to compulsion, and therefore Kansas may require respondent to make." McKune v. Lile, 122 S. Ct. 2017, 153 L. Ed. 2d 47, 2002 U.S. Lexis 4206 at 40.

The U.S. Supreme Court further stated:

The Kansas SATP represents a sensible approach to reducing the serious danger that repeat sex offenders pose to many innocent person, most often children. The State's interest in rehabilitation is undeniable. There is, furthermore, no indication that the SATP is merely an elaborate ruse to skirt the protections of the privilege against compelled self-incrimination. Rather, the program allows prison administrators to provide to those who need treatment the incentive to seek it.

Id. at 45

While Petitioner argues that the Presiding Officer's Finding No. 10 (A. R. Vol. 1, p. 10196) is contradictory is appears to this court that it is right in step with the U.S. Supreme Court's majority opinion in McKune. Therefore, this court does find that Finding No. 10 is supported by substantial evidence.

Petitioner disagrees with Finding No. 17 (A. R. Vol. 1, p. 10197) which characterizes the personal and professional recommendations supporting petitioner's application for reinstatement as votes of confidence rather than an indication of petitioner's rehabilitation.

Petitioner specifically points to Dr. Wisner, John O'Hearne, M.D. and Gerald Gentry, Ph.D. as qualified and respected persons who recommended petitioner's reinstatement based on his skills and moral fitness.

The Board argues that Finding No. 17 relates to character witnesses only, not to those who testified as experts and provided opinion testimony such as Drs. Wisner and O'Hearne. The Board indicates in its brief that Chester Day, M.D. and E. Kent Stevenson, M.D. signed forms for recommendation but did not testify nor make any statements regarding petitioner's past or present situation. Gerald Gentry, however, did testify only as a character witness but he did state his belief that petitioner had been rehabilitated in a manner that would allow him to practice medicine. (A. R. Vol. 4, p. 11397). Finding No. 17 contains the Board's subjective rather than objective view that petitioner's personal and professional recommendations are votes of confidence. When viewing the further statement that "[the recommendations] do not truly indicate applicant's rehabilitation" in light of the record as a whole, this Board certainly was in the position to find that a conclusory statement that someone is rehabilitated may not truly reflect a person's rehabilitation in light of other conflicting evidence, ie. petitioner's own testimony regarding his sexual offender treatment program and aftercare program.

Petitioner objects to Finding No. 23 because the Presiding Officer used the sexual encounter petitioner had with a younger adult participant in the treatment program as an example to support the finding that petitioner was not more morally fit at the present time than at the time the misconduct occurred. Petitioner argues that it is unconscionable for the Presiding Officer to consider the sexual activity of two consenting adults when considering petitioner's application for reinstatement.

The Board counters that the concern was not the sexual relationship with another adult but the circumstances in which the two met and how petitioner conducted himself. Both were in treatment as sex offenders and the Board argues that the treatment setting should have been safe from the "intrusion of sex pursuit." Apparently, the Presiding Officer was not alone in his concern as the petitioner was required to sign a contract with the aftercare program that he would not continue in the relationship as it was inappropriate. (A. R. Vol. 4, p. 11362-63). The court finds that there is substantial evidence in the record to support Finding No. 23.

The Presiding Officer found in Finding No. 27 (A. R. Vol 1, pp. 10200-01) that petitioner's conduct subsequent to discipline was not remarkable. In other words, petitioner was doing what he was supposed to be doing but according to the Presiding Officer nothing beyond that. Petitioner objects to this characterization but his arguments fail to refute the finding.

The Presiding Officer in Finding No. 21 (A. R. Vol. 1, pp. 10198-99) states that none of the expert witnesses or character witnesses testified that petitioner should have an unrestricted license. While petitioner does not refute that finding, petitioner points out that he never requested an unrestricted license only a restricted license.

Since petitioner was requesting a restricted license, it is not unusual that his witnesses did not testify regarding an unrestricted license. While the Finding may be irrelevant when placed in context, it is support by evidence in the record.

Whether the Board's Action was Arbitrary and Capricious

Finally petitioner argues that the Board's decision was not supported by the record and therefore was arbitrary and capricious. As this court specifically has set out above, the Presiding Officer's Findings are supported by the record. The Kansas Supreme court has defined "arbitrary and capricious" as follows: "[a]n agency's action is arbitrary and capricious if it is unreasonable or without foundation in fact." Zinke & Trumbo, Ltd. v. Kansas Corporation Comm'n, 242 Kan. 470, 474-75, 749 P.2d 21 (1988). This court does not find that the Board's action was arbitrary and capricious.

Based on the court's findings as set out above, this court finds that the petitioner has failed to meet his burden of proving the invalidity of the Board's action in denying his petition for reinstatement. Therefore, this court affirms the Board of Healing Art's action in denying Petitioner Lester's Application for Reinstatement of his medical license. The above are the court's findings and conclusion of law and no further journal entry is required.

IT IS SO ORDERED.

Dated this day of August, 2002.

 
_________________
Nancy Parrish
District Judge, Third Judicial District

I hereby certify that a copy of the above and foregoing MEMORANDUM DECISION AND ORDER was mailed this 30th day of August , 2002, to the following:

 
Reid F. Holbrook
Timothy P. McConville
757 Armstrong
P.O. Box 171927
Kansas City, Kansas 66117

 
__________________
Norma J. Dunnaway
Administrative Assistant