Medical Board Loses a Case ... and Attacks the Judge

The State Office of Administrative Hearings on 15th Street

Faced with a disappointing judicial ruling, most people either lick their wounds and move on, or appeal to a higher court. Not so for the Texas Medical Board – they took aim, successfully, at the judge and his job.

Last September, Hunter Burkhalter, an experienced administrative law judge at the State Office of Administrative Hear­ings, issued a "Proposal for Decision" in the case of the TMB vs. Dr. Robert Van Boven. The case involved accusations by three patients (or their families) that in 2014 and 2015 Van Boven behaved unprofessionally; more specifically, two female patients had accused the doctor of sexual "boundary violations" during physical examinations. Last May, Burkhalter presided over a weeklong hearing that featured TMB litigators prosecuting the case opposite Van Boven and his attorneys, with testimony by 17 witnesses, including the accusing patients.

Burkhalter concluded that there was insufficient and unpersuasive evidence of the charges, and that the allegations of boundary violations were not sufficiently credible. In a lengthy and very thorough opinion, the judge found that "there are enough implausibilities and issues of doubt raised by the evidence that the [judge] cannot conclude that the allegations of Patients A and B are more likely than not, true." (The third complaint was also dismissed.)

As these proceedings are structured, at that point the TMB had a choice: confirm Burkhalter's PFD, or ask the state attor­ney general's office to appeal the ruling to state district court. After some delay, on Dec. 8 board members reluctantly confirmed the PFD, adopting the judge's "Findings of Fact and Con­clu­sions of Law." Several board members complained at the time – even as they voted to accept the decision. TMB Chair Sherif Zaaf­ran read a statement arguing that perhaps a different judge, or two judges, or a female judge, might have ruled differently, while noting "the current climate [concerning sexual misconduct] across this country."

That is, while confirming Burkhalter's ruling, the TMB impugned his impartiality and suggested various factors external to the case should have changed the outcome.

Definitions of Dismissal

Last week, the Chronicle learned that the TMB didn't stop there. Thanks to information provided by persons familiar with SOAH and documents received in response to open records requests, we learned that on Feb. 22, Burkhalter was forced to resign his ALJ position "in lieu of termination" by SOAH's administrator, Chief Administrative Law Judge Lesli G. Ginn. Ginn's decision was in response first to a Jan. 10 letter from TMB Interim Executive Director Scott Freshour, which accused Burkhalter of bias and questioned the ALJ's ability "to decide certain cases involving sexual misconduct impartially." In his attempt to relitigate the case and question Burkhalter's judgment, Freshour not only cherry-picked a few small details of the judge's opinion to suggest bias against female complainants, he cited as evidence an allegedly overheard, casual conversation during a break in an entirely different hearing, during which Burkhalter reportedly agreed with a female court clerk that supermodel Kate Upton (then viewable on TV attending the World Series) was indeed good-looking.

In short, disputing a ruling that in part concerned allegations of sexually-based misconduct, Freshour attempted to portray Judge Burkhalter as himself suspect on such matters. Citing Zaafran's stated preference for a female judge, Freshour did not attempt to explain how he, or the two-thirds male majority of the TMB, were somehow impervious to masculine prejudice, and (relying largely on second- or third-hand, prosecutorial information about the Van Boven hearings, the evidence, the testimony, and the witnesses) were somehow able to conclude that Burkhalter's ruling was wrong. Yet they had confirmed that ruling and declined to appeal it to a district court; presumably the attorney general's office (which would prosecute the appeal) told them they would lose.

Freshour requested a meeting with Ginn and SOAH General Counsel Cynthia Reyna, which (in a note to her chief deputy) Ginn confirmed took place (on or about Jan. 19). In mid-February, Burk­hal­ter was given a week to respond to Fres­hour's letter – the first he'd heard of it – and on Feb. 20, he did so at length and point-by-point (lending Freshour's selective arguments more fairness than they deserved). Burkhalter also noted more than once: "The remedy for a party who feels a judge has erred is judicial appeal, not impugning a judge's character to his employer." Two days later, in a letter to Burk­halter, Ginn officially confirmed his "resignation in lieu of termination."

The Chronicle initially learned of Burk­halter's dismissal – his forced resignation – from a former SOAH staffer who had heard the news, and in the days since has heard (from several other sources) the outlines of the episode confirmed by these documents. (Burkhalter has not responded to inquiries.) The reporting had its comic aspects – initially, no one at SOAH would even confirm whether Burkhalter still worked there, and all such questions were referred to General Counsel Reyna, who also declined to answer (thus effectively confirming he was gone). State Rep. Bill Zedler visited the agency and asked to speak with Burkhalter – and was finally told the ALJ was "no longer there." He met Ginn by chance, asked general questions, and says she told him she had never "dismissed" any ALJ in response to a ruling. (In the wake of this episode, Zedler said he would be calling for a legislative investigation of Burkhalter's dismissal, and added, "Furthermore, there needs to be an investigation into the fairness of the SOAH process.")

Conflicts of Interest?

Lesli G. Ginn, Chief Administrative Law Judge of the State Office of Administrative Hearings

Ginn's (and Freshour's) actions raise obvious ethical and conflict-of-interest questions – should a state agency disappointed in a judge's ruling be permitted to threaten his employment, or (as Burkhalter put it in his response letter), instead of appealing the judge's decision, "attack [his] character or apply pressure to SOAH in an effort to influence how [he] or any other ALJ handles future TMB proceedings"? TMB's most recently available records reflect that in the 10 years from 2007 to 2016, charges were dismissed in less than 1% of the contested cases; apparently Freshour and his board believe that kangaroo-court number should be even closer to zero.

Moreover, Freshour's intervention and Ginn's termination of Burkhalter might not be only feckless; it may also be a violation of state law. According to the Texas Govern­ment Code that applies to SOAH, an explicit responsibility of the chief administrative law judge is to "protect and ensure the decisional independence of each administrative law judge." More than one SOAH source has echoed the question raised by Burkhalter's letter: Can an ALJ rely on Ginn to protect his or her "decisional independence," or will future objections by disappointed agencies result in pressure to either toe the line or lose your job? Reportedly, last week Ginn ordered SOAH staff, including the more than 30 ALJs, not to speak to the media; any ALJ who might be willing to do so, on or off the record, now has a very reasonable fear of retaliation.

The Burkhalter episode occurred in the direct shadow of the Van Boven case, and that of Dr. Van Boven's pending lawsuit against the TMB on grounds that include defamation, violation of due process, and "civil conspiracy." Asked if he had any reaction to Burkhalter's dismissal, Van Boven said, "If this allegation is true, it is an abominable betrayal of trust conferred to our government officials, and an affront to justice and those that try to deliver it."

Ginn and Freshour have not responded to calls requesting comment. Ginn is a gubernatorial appointee; questions about the Burkhalter matter submitted to the governor's office have thus far received no response.

Former SOAH ALJ Tommy Broyles corresponded with the Chronicle via email, and said that if the TMB disagreed with an ALJ decision, the proper remedy is an appeal to state district court. He continued, "It would be highly inappropriate, and in my opinion even illegal, for an agency to contact anyone at the State Office of Administrative Hearings about a particular case.

"ALJs at the State Office of Administrat­ive Hearings are the independent gate-keepers of the enormous power of the state to interfere in the lives of the citizens of Texas. Citizens have a Constitutional due process right to a fair and unbiased hearing when the state is attempting to take away one's right to work or to otherwise enjoy the liberties we all share. If a state agency – who is party to a hearing – may contact and influence the decision makers or their chain of command, then the entire system is rigged for the state. Citizens stand no chance at defending themselves against powerful state agencies who go after them, sometimes justly and sometimes mistakenly."

Dr. Van Boven has a long history of disputes with the medical establishment. For more on the case that led to Burkhalter’s resignation, see the archive at austinchronicle.com/robert-van-boven.