                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    March 4, 2005 Session

       YVONNE N. ROBERTSON v. TENNESSEE BOARD OF SOCIAL
          WORKER CERTIFICATION AND LICENSURE, ET AL.

                    Appeal from the Chancery Court for Davidson County
                        No. 02-2869-II   Carol McCoy, Chancellor



                  No. M2004-00647-COA-R3-CV - Filed November 15, 2005


PATRICIA J. COTTRELL, J., dissenting.

         There is no question the Board could sanction Ms. Robertson for her undisputed violation
of the ethical rules of conduct. While the severity of the sanction may appear disproportionate to the
violation itself in view of all the circumstances, courts will generally refrain from reviewing the
relation of a sanction to the violation, as long as it is within the range of authorized sanctions.

        The problem in this case, however, is the appearance that the severity of the sanction was not
based solely on the violation at issue or on a past history of violations. The Board had discretion to
sanction Ms. Robertson for her violation of the code of conduct, but the exercise of that discretion
is subject to review under the arbitrary and capricious standard. If the Board imposed this “most
severe form of disciplinary action”, Tenn. Comp. R. and Regs. 1365-1-.15(e), on the basis of
irrelevant and prejudicial material, its decision was arbitrary and capricious.

       The Board admits in its brief that it considered its 1997 order “as one factor in determining
what discipline to impose.” It argues that past breaches of ethical conduct are relevant as are Ms.
Robertson’s prior assurances she would act ethically. Alternatively, the Board argues that
consideration of its own prior order, if error, was harmless, citing Tenn. Code Ann. § 4-5-322(i),
which precludes reversal of an agency decision “unless for errors which affect the merits of such
decision.”

        The record shows that the Board’s experience with Ms. Robertson prior to and upon her
licensure, including her conviction, was introduced into these proceedings, first as part of the
allegations of fact in the Notice of Charges. While the Board argues it could lawfully consider its
prior order, that argument evades the issue of the content of the Notice of Charges as well as how
the Board used that information. In relevant part, the Notice stated:

       Petitioner applied to the Board for licensure as a Licensed Clinical Social Worker
       (LCSW), pursuant to T.C.A. § 63-23-103 on or about June 27, 1996. Prior to
        application for licensure as an LCSW, the petitioner had been certified by the Board
        as a Master Social Worker (MSW) since October 4, 1994.

        In 1996 petitioner’s application for LCSW licensure was denied, apparently based
        upon a 1982 felony conviction. Petitioner appealed the denial of licensure to the
        Board and prevailed, obtaining licensure in 1997.

        In deciding on the appropriate sanction for Ms. Robertson, Board members discussed this
past history, with the Chair even noting that Ms. Robertson had been before the Board in the past.
Of particular note, the Chair referred to the Board’s prior order granting Ms. Robertson’s license
wherein she agreed to uphold the standards of social work and stated she had “again” admitted she
violated those standards. Another member noted this was the “second time” and that it had only
been a year (presumably from the initial licensure to the dual relationship infraction). In her closing
argument at the hearing before the Board, the State’s attorney stated, “it [is] the position of the State
that the first hearing in 1997 should be Ms. Robertson’s last second chance.”

        Consequently, I think the determinative question in this appeal is whether the Board could
use Ms. Robertson’s pre-licensure conduct as a factor to enhance the sanction for post-licensing
violation of the code of conduct, since the record clearly indicates it did so and since the Board
argues it was entitled to take her pre-licensure conduct into consideration. Essentially, the Board
argues that it was entitled to consider Ms. Robertson’s 1982 conviction because it was also a
violation of ethical standards. However, the relevance of an almost twenty-year old conviction for
embezzlement to the offense of allowing a dual relationship, or establishing a friendship, with a
client is not explained, and I see none. Additionally, while the Board argues that her earlier
assurances that she would follow ethical standards when she was licensed was relevant, it fails to
explain how Ms. Robertson’s assurances were different from the assurances of any other licensee.
Instead, it implies that Ms. Robertson was placed on some “double secret probation” whereby any
violation by her would be dealt with more harshly.

        The administrative rule authorizing the Board to impose sanctions for violations of its rules
provides that the Board may impose any of the listed sanctions, or any combination of them,
“deemed appropriate to the offense.” Tenn. Comp. R. & Regs. 1365-1-.15(1). While the severe
sanction imposed may have been deemed appropriate to the offense Ms. Robertson committed, there
is simply no way a court can determine that because the Board considered pre-licensure conduct
unrelated to the offense. Consequently, I would affirm the trial court’s judgment.



                                                        ____________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




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