Chiropractic Board saga intensifies

The Department of Consumer Affairs has assigned a manager with a long history of fixing troubled bureaucracies to begin the task of cleaning up the Board of Chiropractic Examiners. The board has been roiled by disclosures of impropriety and infighting for several weeks.

Capitol Weekly also has learned that the former chairwoman of the board, Dr. Sharon Ufberg, was accused of practicing without a license while sitting on the board during 2001. The allegations were among those detailed in one of two lawsuits pending against board managers by current and former staff members. Reached by phone in New York, Ufberg refused to reply to questions on the matter.

In the Legislature, meanwhile, political lines are being drawn: Assemblyman Mike Eng, D-Monterey Park, called on the resignation or dismissal of three board members, all Republicans.

The once-obscure state board has been in the news since a contentious March 1 board meeting in which several members appointed by Republican Governor Arnold Schwarzenegger attempted to fire the board’s executive director, Catherine Hayes. The board includes two close friends from the governor’s bodybuilding days, Richard Tyler and Franco Columbu.

Enter the ‘fixer’

Brian Stiger, a manager who has been with the DCA for over a decade, was brought in as acting executive director of the board on March 12. The March 1 and 23 board meetings essentially left the board staff without any managers, Stiger said.

His first task is an extensive review of the board, looking at staffing, expenditures and other issues. Stiger said he has been meeting extensively with both board members and staff.

“That’s one of the things I typically do when I go into a new organization,” Stiger said. “I wouldn’t call it an ‘audit.'”

Stiger has had similar assignments before. In 2002, he was brought in to the Bureau and Electronic and Appliance Repair. This was followed by a 2004 posting at the Bureau of Home Furnishings.

“My experience is really in going in and fixing problems,” Stiger said.
A 2000 review of the board, approved by then-Senator Liz Figueroa, noted “longstanding management deficiencies.” Since that time, the board’s annual budget has grown from $1.8 million to just under $3 million. Personnel expenses grew from $631,000 to $949,000.

Political battle lines

While labor has yet to get formally involved, Stiger said that he had been contacted by the powerful Service Employees International Union, the largest state-employee union. The union has concerns over treatment of board employees and wants to meet with staffers.

The Senate and Assembly Business and Professions Committees held a joint hearing last week about the board. Eng, the Assembly committee chairman, and his opposite number in the Senate, Mark Ridley-Thomas, D-Los Angeles, both have announced plans to introduce legislation to rein in the board.

Eng said his bill would put the board under stricter DCA control, just like the California Acupuncture Board that he served on from 1997 to 2002. Eng said many of the problems with the board are due to the fact that annual sunset reviews, such as the one issued by Figueroa, are not binding, as they are in other state agencies. His bill also would force the board to open-meeting laws and make it clear that the attorney general’s office is the only official legal representation of the board.

Eng said he was encouraged by an apology from Tyler that he broke board rules in trying to dismiss Hayes and Tuton. But he said the acts were still “outrageous.” Eng called for the removal of Tyler, Columbu and a third board member, Judge James Duvaras.

“The apology, to me, admits the culpability,” Eng said.

Ridley-Thomas’ legislation proposes that chiropractors be subject to any law changes affecting other health-care providers, allows the Legislature to eliminate board members, would add two public board members, and subjects the board to the business and professions code.

In a press release, Ridley-Thomas also said, “due to the Board’s serious lapses in good judgment and apparent misconduct, obstruction of justice changes have been filed.” Ridley-Thomas’ chief of staff, Vincent Harris, later said the reference to obstruction of justice was “a misstatement.”

Jana Tuton, the deputy attorney general assigned to the board for several years until Tyler requested she be assigned last month, brought up the issue of “obstruction of justice” in a letter she sent to Hayes on February 8. Tuton referred to illegal recommendations of homeopathy by Tyler in his chiropractic practice.

Tuton also wrote that, “The Board members have repeatedly, at public meetings, cast aspersions on their staff and the Attorney General’s office, and have invited chiropractors to contact them directly,” in violation of board codes.
Schwarzenegger spokesman Aaron McLear said his boss also was going to take a hands-off approach for the time being. “He’s confident that the board is taking steps to address these issues,” McLear said. “It’s our preference to give them the opportunity to operate in an independent fashion.”

Staffer lawsuits

Attorney Gaspar Garcia II is overseeing two lawsuits naming the board staff and Hayes. He is preparing legal action against Hayes on behalf of David Hinchee, the now-demoted assistant director of the board. After her own March 23 demotion, Hayes now currently sits in Hinchee’s old job.

Public employees must fulfill several requirements before they file a lawsuit. Hinchee already has received a “right to sue” letter from the Fair Employment and Housing Department for his allegation that Hayes interfered with his “right to associate” with board members.

Hinchee filed a complaint with the State Bureau of Audits on January 26 alleging “improper government activity” by Hayes. On February 16, Hayes filed an adverse action against Hinchee, alleging misconduct–an act he said constituted the retaliation.

Garcia is also the attorney for Carole Arbuckle, a former board staffer who sued the board in 2002, naming Hayes and then-director Jeanine “Kim” Smith for retaliation. That suit was thrown out of the Third Circuit at the end of February, but Garcia said he is working on a new avenue that could land the case in the state Supreme Court.

Ufberg’s lapsed license

Arbuckle’s suit referred to the lapsed license of board member Sharon Ufberg. According to board records, Ufberg’s chiropractic license expired at midnight on December 31, 2000. She was elevated to board chairwoman on January 25, 2001. On May 11, 2001, Ufberg paid $300 in licensing fees and penalties. A new license was issued the next day.

As the staff member in charge of citations, Arbuckle said she raised two issues around this incident. The first was whether Ufberg was allowed to be a chiropractic member of the board while she wasn’t licensed. If not, the board would have lacked a quorum during that over four month period, making all regulations and disciplinary actions taken during that time void.

When asked about the incident at the board March 23 meeting, Hayes said that Tuton told her that it was acceptable for a chiropractic member to have a lapsed license so long as they met the requirements when they were appointed. Indeed, according to the vaguely written rules in the 1922 act, the rules appear to apply only at the time a board member is appointed.

“She keeps trying to make an issue of this,” Hayes said. “She lost her lawsuit.”
In various documents relating to the suit, as well as complaint letters sent to Senator Figueroa and others in 2002, Arbuckle also said that Ufberg admitted practicing without a license when she came into the board offices on May 11, 2001, a violation of board rules.

The board punishes such unlicensed chiropractors hundreds of times a year, Arbuckle said, issuing fines and making offenders ineligible to renew their licenses a year or more. Chiropractors are also not allowed to keep any money the
y made while practicing without a license.

Arbuckle, in her lawsuit and in complaint letters, went on to allege that Ufberg said she would bill under her then-husband’s name, Elliot Sclamberg, who is also a chiropractor.

Hayes, then the enforcement coordinator, failed to check for any suspicious billings under Sclamberg’s name, Arbuckle contends, and ignored a report that one of Ufberg’s patient’s had complained when her insurance company denied a claim due to Ufberg’s lack of a license. Hayes declined further comment via her attorney.

Arbuckle said that Hayes instead tried to cover up the issue with Ufberg, a dispute that eventually led her to retaliate against Arbuckle, according to the suit. Ufberg left the board in October of 2002 after then-Governor Gray Davis decided not to renew her for a second four-year term.

When reached on her cell phone in New York, where she now lives, Ufberg said that her lapsed license did not affect her ability to serve on the board. However, when directly asked if she had practiced chiropractic without a license between January 1 and May 11, 2001, she said: “I’m not going to answer personal questions. I’m just not going to talk to you.”

Contact Malcolm Maclachlan at malcolm.maclachlan@capitolweekly.net