PROFESSIONS: Administrative rules governing loss of licensure : MAGGARD PHD V. BOARD OF EXAMINERS OF PSYCHOLOGY (SC 10/23/2008)

MAGGARD (PHD) V. BOARD OF EXAMINERS OF PSYCHOLOGY
PROFESSIONS:  Administrative rules governing loss of licensure

2006-SC-000355-DG.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN PART
OPININION BY SCOTT; SCHRODER NOT SITTING
FROM FRANKLIN COUNTY
DATE RENDERED: 10/23/2008

The Board found that Maggard a psychologist had violated KRS 319 .082(1)(f) and 201 KAR 26 :145, Section 3(5) when he rendered a formal, professional opinion about a minor child "without direct and substantial professional contact with, or a formal assessment of," that child, and that his actions constituted violations of KRS 319.082(1)(c) and (d) – "unfair, false, and misleading
act[s] or practice[s]" and "practic[ing] psychology in a negligent manner." The Board suspended Maggard's license to practice psychology for one year. However, the Board stayed the suspension and placed Maggard on probation, which allowed him to practice psychology under the Board's supervision. 

SC accepted discretionary review of the Court of Appeals opinion affirming the judgment of the Franklin Circuit Court upholding the suspension. Appellant argues that the Board lacked subject matter jurisdiction, that he was entitled to absolute immunity, and that he was entitled to discovery and a jury trial in the Franklin Circuit Court on his claims of fraud and misconduct at the administrative level.
The SC  affirmed the lower courts' rulings on subject matter jurisdiction and absolute
immunity, but reversed the courts' ruling that, under KRS 1313 .1 50(l), Appellant was not entitled to conduct discovery on his allegations of fraud and misconduct in the prosecution of the administrative action against him.
The SC likewise rejected Maggard's argument that he was entitled to absolute immunity because he was participating in a civil judicial proceeding.  Maggard was neither court-appointed nor an integral part of the judicial process in the case. 
Moreover, the immunity granted to a witness in a judicial proceeding is immunity from liability for civil damages.  Here, Maggard is seeking immunity from an administrative disciplinary proceeding, not from civil damages . 

SC thus agreed with the lower courts that Maggard is not entitled to immunity from an administrative disciplinary proceeding.
Finally, SC turned to Maggard's argument that he was entitled to a jury with the
SC holding Appellant was not entitled to a jury trial on these claims. Accordingly, we affirm in part and reverse and remand in part for further proceedings consistent with this Opinion. 

Digested by Michael Stevens

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