Lawsuits, threats and stolen tapes precede Legislative hearing on Chiropractic Board

A power struggle at the California Board of Chiropractic Examiners has revealed numerous allegations of misconduct by board members and staff, including e-mailed threats, charges of illegal collusion, and allegations that a deputy attorney general stole audio tapes of the board’s March 1 meeting.

Within the next week, board staffer David Hinchee will file a lawsuit naming the board’s recently-demoted executive director, Catherine Hayes, claiming she retaliated against him for bringing accusations of Hayes’s misconduct to light.

According to documents obtained by Capitol Weekly, both Hayes and Barbara Stanfield, the now-departed chairwoman of the board who was appointed by Gray Davis, emailed threats of reprisals to board members and staff. Other documents detail the fights between staff from the Davis era and a board now entirely made up of members appointed by Governor Arnold Schwarzenegger.

The board has been in the news since its March 1 meeting, when the board voted unanimously to fire Hayes. On Wednesday, a joint hearing of the Assembly and Senate Business and Professions Committees is expected to include testimony from board members, who will be asked to explain the attempted firing of Hayes and other recent actions.

The efforts to oust Hayes have been led by two board members who are friends of the Governor from his bodybuilding days who are also chiropractors, Dr. Richard Tyler and Franco Columbu. Another Schwarzenegger appointee–Judge James Duvaras, a “public” or non-chiropractor member of the board–served dismissal papers to Hayes at the March 1 meeting.

In recent weeks, the board has also moved against members and staff seen as allied with Hayes. The four-year term of Stanfield, the last Davis appointee, ran out last month. On February 16, the administration replaced her with Dr. Frederick Lerner. This month, the board confirmed two more Schwarzenegger appointees, Dr. Hugh Lubkin and Jim Conran.

In February, Stanfield sent a threatening e-mail to Schwarzenegger appointee Duvaras demanding that he resign from the board. The e-mail referred to Nicole Rice, a deputy appointments secretary with the Governor’s office.

“You should resign your position immediately,” Stanfield wrote. “I have asked for the assistance of Nichole [sic] Rice, and if I do not hear from her in the next 24 hours I will go to her supervisor, and the media.”

Beneath her name at the bottom of the email was Hayes’ email address, along with the words “Sent: Tue, 30 Jan 2007 10:06 AM” and “Subject: FW: Agenda for February 15, 2007.” Rice was also described in a March 9 Sacramento Bee story which revealed a February 20 e-mail from Hayes to Rice that noted “malfeasance by a group of board members.”

The new bloc of Schwarzenegger appointees instead dug in their heels, and replaced Stanfield as chair. Tyler then began working to oust Hayes, Jana Tuton, the deputy attorney general (DAG) assigned to the board, and Maggie Craw, the board’s chiropractic consultant. In a February 18 email to Hayes, Tyler stated that Hayes’s and Craw’s employment would be reviewed at the March 1 meeting. He also said the board would consider a motion to “retain private, outside counsel” besides Tuton.

Craw remains affiliated with the board in her part-time role. Tuton remains on staff with the attorney general, but has been reassigned.

Hayes is longtime staffer who formerly served as the board enforcement coordinator and moved up through the ranks. She and Stanfield have charged that the new board is made up of political appointees who are too close to the governor and the industry. These members, they claim, have sought to weaken the enforcement ability of the board. The governor has also been taken to task for saying the board should represent chiropractors; its stated mission is to represent chiropractic patients.

This past Friday, the board held a special meeting in which Tyler admitted that the board’s attempt to dismiss Hayes as director was done without giving her proper notice. He also apologized for improperly naming himself acting executive director. The board then went into private session, and again unanimously voted to remove Hayes.

Hayes remains an employee of the board but was demoted to a lower-level staff position, according to acting executive director Brian Stieger. The director slot is an “at-will” position, Stieger said, which means that the board can and has removed her “without cause.” Stieger is on loan from the Department of Consumer Affairs.

“The board is not taking any [further] action against Catherine Hayes,” Stieger said.

Hayes read a statement at the March 23 board meeting. She said the now all-male board’s decision to fire her was “gender-based,” claimed the board’s demand that she fire Craw was illegal, and said she was exposed to intimidation and harassment.

“This board has made it impossible for me and the members of my staff to carry out our legal duties to enforce the laws governing the practice of chiropractic,” Hayes said.

She also accused the board of attempting “to subvert a criminal prosecution in San Joaquin county.” This refers to cases involving chiropractors who have used anesthesia in their procedures.

Hayes has also had issues with staff. On January 26, staffer David Hinchee filed a complaint with the State Bureau of Audits (SBA) alleging “improper government activity” by Hayes.

The same day, he filed a second compliant with the Department of Fair Employment and Housing. Hinchee stating that Hayes had violated his right to “associate” with board members, an intrinsic part of his job. This was followed by third complaint in February, again with the SBA.

Days later, on February 16, Hayes filed an adverse action against Hinchee, alleging misconduct. The move has caused Hinchee to be at least temporarily demoted from his assistant director position at the board. It also prompted the lawsuit. Hinchee’s attorney, Gaspar Garcia II, said Hayes actions were retaliation.

“The adverse action was filed within days of my client reporting improperly government activity to the State Auditor and filing a complaint with the Department of Fair Employment and Housing,” Garcia said.

On March 2, Hayes sent an email to all staff except Hinchee, referring to the “horrific” board meeting and the “unprofessional acts taken by the Board.” The e-mail warned staff not to take orders from Hinchee.

“As you will note, Dave is not included in this e-mail. It is FOR YOUR INFORMATION ONLY and will not be disseminated in any fashion. Failure to observe this notice will constitute insubordination,” reads Hayes’s note.

Tyler wrote Hayes later that same day, warning her against communicating with staff. He also asked that she conduct any further communication with the board “in writing.” He then wrote senior assistant attorney general Alfredo Terrazas, saying that deputy attorney general Tuton removed audio tapes of the March 1 meeting. Tyler demanded that the tapes be returned.

“The services of DAG Jana Tuton are no longer desired or required,” Tyler wrote. “We will present to your office a detailed bill of particulars on Ms. Tuton’s professional demeanor.”

A spokesman for the attorney general’s office, Gareth Lacy, said that Tuton remains with the the AG’s office, but no longer works with the Chiropractic Board. Another DAG, Kent Harris, has taken over her role for the time being.

Meanwhile, another supervising attorney general, Arthur Taggart, mailed board staffer Doug McLemore on March 1 to demand the tape be turned over the AG’s office for copying. Taggart apparently wrote the email after being told Tuton had given the tape to McLemore.

“We created a transcript of the meeting to assist attorneys and board members to stay on course,” Lacy said.

Also on March 2, Tuton wrote McLemore on AG letterhead, saying “This letter will confirm my verbal directives to you. The Attorney General’s Office is presently reviewing the action
taken yesterday by the Board members which appear to be in violation of the law.”

Other emails reveal more issues at the board. For instance, Tuton apparently had a laptop and cell phone paid for by the board, in violation of policy for DAGs working with state agencies. However, the AG’s office’s Lacy said neither the laptop/cell phone issue or the communication with McLemore appear to violate AG policy.

Last month, Hayes received a letter from the federal Department of Health and Human Services warning her that the board was not in compliance with the reporting standards. State agencies that issue actions against healthcare providers are required to report any actions to the Department within 30 days. According to the letter from Martin Pincus, head of the Department’s Data Banks Branch, 100 percent of the board’s reports in recent months came only after 90 days had elapsed. He went on to demand a “30 day action plan” to get the board into compliance

In August, an insurance claims evaluator questioned some of Hayes’ actions in an e-mail to her, Stanfield and staffer Paul Bishop. At some point the email was shared with Craw, who wrote him back but apparently thought she was writing to Hayes, saying “one word