in Re Joel M Engel Lmsw

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re JOEL M. ENGEL, LMSW.
BUREAU OF PROFESSIONAL LICENSING, UNPUBLISHED
August 27, 2019
Petitioner-Appellee,
v No. 345169
LARA Bureau of Professional
Licensing
JOEL M. ENGEL, LMSW, LC No. 17-011506
Respondent-Appellant.
Before: M. J. KELLY, P.J., and MARKEY and GLEICHER, JJ.
PER CURIAM.
Respondent Joel M. Engel, LMSW, appeals by right a final order issued by the Michigan
Board of Social Work Disciplinary Subcommittee (the subcommittee). The subcommittee
accepted the findings of fact made by the hearings examiner in his proposal for decision,
accepted in part and rejected in large part the examiner’s conclusions of law, placed Engel on
probation for one year, and fined him $2,000. The examiner and the subcommittee concluded
that Engel violated the Public Health Code, MCL 333.1101 et seq., and specifically MCL
333.16221(i) (failure to comply with a subpoena). The subcommittee further determined,
contrary to the examiner’s legal conclusions, that Engel was also subject to discipline pursuant to
MCL 333.16221(a) (negligence or failure to exercise due care), (b)(i) (incompetence), and (h)
(engaging in prohibited conduct involving dual relationship with client). We affirm the
subcommittee’s decision that Engel failed to comply with a subpoena under MCL 333.16221(i),
but we reverse the subcommittee’s conclusions regarding MCL 333.16221(a), (b)(i), and (h).
I. FACTUAL AND PROCEDURAL BACKGROUND
There is no dispute regarding many of the facts in this case. The legal implications of
those facts, however, were hotly contested. At all relevant times, Engel was licensed in
Michigan to practice as a licensed master’s social worker (LMSW), he had a private practice at
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Behavioral Health Group of Muskegon, LLC (BHG), he was a BHG member, and Engel
Properties Associates, LLC, of which Engel was the sole member, owned the building rented by
BHG. From April 22, 2014, to June 10, 2014, Engel, as a volunteer instructor, taught a parenting
class that was attended by TH and TH’s girlfriend, CS. The couple had three children together.
The parenting class was offered and operated by Love, Inc., which was the record keeper for the
class. There was no indication or claim that Engel held an interest in Love, Inc. The class was
conducted at the offices of BHG.
Engel testified that he learned during the class that TH and CS each had a history of
abusing drugs. The Michigan Department of Licensing and Regulatory Affairs (LARA), along
with LARA’s expert, viewed TH and CS as being Engel’s social work “clients” in light of the
parenting class.1 Absent consideration of the parenting class, there was no dispute that TH and
CS were not Engel’s clients at the time of the class for purposes of his social work practice.
Engel took the position that teaching the parenting class did not constitute the licensed practice
of social work.
During the course of the parenting class, Engel himself had replaced a door in the
building, and TH, being aware of this, indicated to Engel that TH could have done the work for
Engel. Toward the end of the class, TH asked Engel if there were any construction projects that
needed to be done. TH, who had an extensive background in the construction field, made the
inquiry because he currently did not have any work or income and was somewhat desperate. In
June 2014, Engel authorized TH to relocate a sink fixture in the building. TH properly
performed the job without incident.2 Later in June of 2014, TH and CS met with Engel. They
sought services from Engel in his capacity as a social worker. Engel obtained releases and
gathered information on the couple in order to make an informed decision on whether to provide
services. Engel reviewed a report regarding a full psychological evaluation conducted of TH in
January 2014 relative to child protective proceedings. The report revealed that TH had a history
of drug abuse and that he had a fairly extensive juvenile and adult criminal record. Engel
concluded that he could not act as social worker for both TH and CS because of potential
conflicts. Engel formally became CS’s social worker on July 1, 2014, and Engel referred TH to
another social worker at BHG, Valerie Porenta, who began providing him with services in mid-
July 2014. As part of counseling CS, Engel would occasionally have TH participate in the
sessions, while making clear to TH that CS alone was his client.
In September 2014, a car crashed into the front of the building occupied by BHG,
knocking down a wall to a waiting room. Engel immediately reached out to TH, asking him to
secure the building, which TH accomplished. Thereafter, Engel entered into an agreement with
TH to repair the damaged building. For the work, TH agreed to accept whatever amount the
insurance company paid on the claim for damages. TH successfully completed the project
without incident.
1
LARA eventually filed an administrative complaint against Engel by and through the director
of the Bureau of Professional Licensing (the bureau).
2
It appears that TH did the work after the parenting class had ended.
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On October 20, 2014, TH had his last session with Porenta. In December 2014, BHG
was in the process of adding a new member, bringing the number of members in the limited
liability company to three, including Engel.3 The other two members were physician assistants
(PAs), Dana Cochrane-Hoekstra and David Wilkins. Cochrane-Hoekstra had joined Engel as a
member back in May 2014, and Wilkins was the new member. In anticipation of Wilkins’s
arrival, a remodeling project was planned for the north side of the building, which was where
Wilkins’s office would be situated; the south side of the building housed Engel’s and Cochrane-
Hoekstra’s offices. BHG received three bids for the remodeling project, one of which was from
TH. The members unanimously voted to award the project to TH. According to Engel, the
project was awarded to TH because “his bid was lowest,” and his earlier construction work “was
very good.” The remodeling project took TH a couple of months to complete, and there were no
issues with the workmanship.
During the construction, Engel had provided TH with a key to the north side of the
building. Engel informed the other two members that he had given the key to TH. In December
2014, while the remodeling work was being performed, CS was discovered using a phone in a
receptionist’s office without permission. CS apparently accessed the south-side office outside of
normal business hours by entering the building through the north side and then going through an
unlocked interior door. According to Engel, if one made entry through the north side of the
building, the only way to access the south side of the building would be through interior doors
that were supposed to be locked by the last person out of the building. Engel claimed that the
office manager was responsible for making sure employees were aware of the need to lock
interior doors at the end of the day. Cochrane-Hoekstra testified that there were “many doors in
the building that you could go through and get to our [south] side.” A former BHG receptionist
asserted that there was no protocol with respect to locking interior doors. Cochrane-Hoekstra
stated that there was an expectation that last-to-leave employees lock interior doors.
Engel confronted TH and CS and warned them that CS’s action was not acceptable or
permissible. Engel admitted that client files and medical records were kept in the room where
CS was found using the phone, but there was no evidence that CS actually accessed files or
records. We also note that there was no testimony regarding whether the files and records were
unsecured in the office or secured in locked cabinets. In answering the administrative complaint,
Engel had alleged that “all client information was stored in locked file cabinets.” Cochrane-
Hoekstra testified that she spoke to Engel regarding the phone incident and concerns about TH’s
having a key. She was worried about patient privacy rights and potential HIPAA violations, yet
Engel did nothing. Engel denied having such a conversation with Cochrane-Hoekstra. There
were no further incidents during the remodeling project.
On March 12, 2015, CS had her last social work session with Engel. In September 2015,
TH approached Engel looking for more work. TH suggested that Engel have the roof replaced.
Engel believed that the roof was going to need replacing soon although there was no immediate
need. Nevertheless, Engel “decided to give [TH] an opportunity to make some money because
3
We note that BHG had nonmember social workers.
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he needed the work.” The construction project was to include replacing the roof and some other
exterior improvements. TH began the project and often worked on the building after normal
business hours. TH was given a key to the building’s main entrance and to a waiting room,
which also provided access to a hallway and kitchen area. Engel testified that he gave TH the
key so that he could store materials and tools inside the building. Sometime in October 2015,
after the exterior project was commenced, TH was discovered by PA Wilkins one morning
sleeping in a back office located on the north side of the building. CS was also found in the
office, along with food and various personal belongings, including blankets, clothing, and
multiple pornographic DVDs. Cochrane-Hoekstra testified that she could hear Wilkins yelling
upon his discovery of TH and CS in the office.
Engel contended that the office was not being used by BHG at the time, that Engel had
not given permission or authorization for TH or CS to stay or sleep in the room, that TH could
only have accessed the office by virtue of Wilkins’s staff failing to lock interior doors the night
before, and that Engel immediately terminated the contract with TH, and hired a different
contractor to complete the exterior project.4 There was testimony that prescription medications,
controlled substances, a medical records were kept on the north side of the building as part of
Wilkins’s practice. And Engel acknowledged that he was aware of the fact that prescription
medications and records were located in that area. Engel explained that he became aware that
medications would be stored on the north side of the building when the remodeling of the north
side was being done because he had to “make sure that there were locked closets where the . . .
medications would be . . . kept.” There was no testimony that the medications and controlled
substances were not in secured or locked cabinets or closets. We also note that there was no
evidence that TH or CS actually accessed any medications or controlled substances. Cochrane-
Hoekstra, who noted that she once saw TH in jail, testified that she spoke to Engel regarding the
incident, setting forth her concerns about TH’s having access to the building and narcotics.
Engel denied any such conversation, and he claimed that neither Cochrane-Hoekstra nor Wilkins
asked him to terminate TH’s employment after the earlier phone incident or the most recent
intrusion.5
While TH was still working on the roofing and exterior project in the fall of 2015 and
before TH and CS were found sleeping in the north-side office, TH went to Engel and asked for
cash for lodging because TH and CS had no place to stay. Engel was not prepared to give TH
cash, but he did agree to cover the cost of a nearby motel, which amount would be deducted from
the pay owed to TH for the construction project. Engel testified that either he or his wife
actually went to the motel and paid for a room for TH and CS using a personal credit card; at no
time did TH or CS physically possess the credit card. According to a bureau investigator, Engel
informed the investigator that there were allegations that CS engaged in prostitution in the motel
room and that drug dealing was also occurring in the room. Engel testified that he learned from
4
The former receptionist asserted that TH did some additional exterior work on the building
after the incident.
5
With respect to the various construction projects TH performed, Engel testified that it was
technically Engel Properties or BHG that employed and paid TH.
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the motel’s manager about the alleged prostitution after the motel stay was over. The manager
also told Engel that TH and CS were asked to leave the motel. Engel believed that they were
asked to leave the day before TH and CS were found sleeping in the office. There was no
evidence that Engel knew at the time he supplied payment for the motel that TH or CS might
engage in criminal acts might at the motel. In LARA’s administrative complaint, it alleged that
motel personnel kicked TH and CS out of their motel room on October 8, 2015, because CS was
committing acts of prostitution. We note that aside from hearsay, there was no evidence that CS
engaged in prostitution. On December 4, 2015, Engel accepted TH as a client within the
purview of Engel’s practice as a social worker. According to Engel, TH’s life was in shambles
and CS had left him.
As part of an investigation, the bureau mailed a subpoena to Engel that was dated
February 7, 2016, requesting all records pertaining to TH’s treatment from January 1, 2015, to
November 30, 2015. On February 23, 2016, Engel phoned the bureau, explaining that TH was
not his client during the period covered by the subpoena, January 1 to November 30, 2015,
although TH later became his client. Engel testified that he was informed by the bureau that a
second subpoena would be sent. On February 29, 2016, the bureau allegedly mailed another
similar subpoena to Engel but one without any limitations on TH’s treatment dates. The bureau
claimed that Engel did not respond to the subpoena. The bureau then allegedly faxed the second
subpoena to Engel on March 14, 2016, after a phone conference that day between Engel and the
bureau. Engel denied receiving the second subpoena, either by mail or fax, and he denied even
speaking to anyone from the bureau on March 14, 2016. Engel testified that Cochrane-Hoekstra
and Wilkins moved out of the building on February 26, 2016, taking the fax machine and Engel’s
phone system. Engel claimed that “[t]hey took everything.”
Contrary to Engel’s testimony, a bureau investigator responsible for subpoenas testified
that he spoke to Engel on March 14, 2016, which was the production due date for the second
subpoena, obtained Engel’s fax number, 6 and then faxed the second subpoena to Engel. The
investigator logged and documented these events, but no fax transmittal confirmation was
produced.7 A regulation agent for the bureau who was investigating the matter conducted an
interview of Engel at BHG on June 15, 2016. The regulation agent testified that Engel informed
him that he had indeed received both subpoenas. In connection with the second subpoena, Engel
told the agent that Cochrane-Hoekstra, who he claimed had permanent control over the electronic
records, had moved out of the building, taking the records.8 The regulation agent indicated that
Engel then stated that he might have some paper records in his office. The agent asked Engel to
check the office, and Engel did so, finding 22 pages of documents pertaining to TH, including
6
Engel acknowledged that the bureau had the correct fax number.
7
The investigator claimed that no error or failure code was generated when the fax was sent and
that there had been a transmittal confirmation, but he did not bring any paperwork to the hearing.
8
Cochrane-Hoekstra testified that BHG had been using a computer record-keeping program
called Valant that was licensed to her. She claimed that through their respective attorneys, Engel
had been offered the electronic records concerning Engel’s clients.
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ten pages related to the parenting class. Engel testified that the first time he ever saw the second
subpoena was at the June 15, 2016 interview with the regulation agent.
In September 2016, LARA filed the administrative complaint against Engel. Count I of
the complaint alleged that Engel’s conduct in hiring TH for construction projects, giving him
access to the building, and paying for the motel evidenced a violation of a general duty,
reflecting negligence and a failure to exercise due care. Count I was based on MCL
333.16221(a). Count II alleged that Engel’s conduct constituted incompetence, considering that
it showed a departure from, or failure to conform to, minimal standards of acceptable and
prevailing practice for the health profession of social work. MCL 333.16221(b)(i) and MCL
333.16106(1) formed the basis of Count II. In Count III, LARA alleged that Engel’s conduct
revealed involvement in a dual relationship with a client or a former client in which there was a
risk of exploitation or harm to the client. Count III was predicated on MCL 333.16221(h) and
former Mich Admin Code, R 338.2909(c). Finally, Count IV alleged that Engel failed to comply
with a subpoena in violation of MCL 333.16221(i).
On September 21, 2017, an evidentiary hearing was conducted on the administrative
complaint. A hearings examiner presided over the proceeding. LARA called six witnesses to
the stand, including Engel. Engel later testified again as part of his defense, and he also called
one additional witness—the LMSW who had provided social work services to TH following
Engel’s referral, Valerie Porenta. LARA’s witnesses, aside from Engel, consisted of the bureau
investigator in charge of the subpoena process, the bureau regulation agent who interviewed
Engel in June of 2016, the former receptionist at BHG, PA Cochrane-Hoekstra, and an LMSW
who was qualified by the examiner as an expert in the field of general social work, Constance
Black-Pond. TH, CS, and Wilkins did not testify at the hearing.
Black-Pond testified that the parenting class could well have created a social
worker/client relationship between Engel and TH and CS given the risk of the couple’s
perceiving the existence of such a relationship based on Engel’s status as a professional, the
materials used in the class, and the issues they discussed especially if TH and CS had direct
conversations with Engel about their life circumstances. Black-Pond also opined that the intake
meeting that Engel had with TH and CS in June 2014 when they sought a social worker could be
viewed as forming a social worker/client relationship. She also noted TH’s participation in
counseling sessions involving Engel as CS’s social worker.
Black-Pond testified that the business relationship between Engel and TH was
problematic because of the potential for a conflict of interest. She asserted that it created a
power base related to income, where TH was fundamentally without power and vulnerable if the
work were deemed unsatisfactory. The vulnerability aspect was concerning to Black-Pond
because TH is bi-polar, has PTSD, and difficulty managing stress. The business relationship and
the social worker/client relationship also created a dual relationship that presented a danger of
boundaries being crossed and a risk of harm to TH. Black-Pond observed that not all boundary
crossings are unethical; it depends on the risk of harm. And the risk here could have been
minimized by discussing boundary issues with TH, but there was no indication that Engel had
such a discussion with TH. Black-Pond conceded on cross-examination that she did not know
the nature of every discussion between Engel and TH. Further, according to Black-Pond, Engel
should have consulted with other professionals about the dual relationship and boundary issues,
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which apparently did not occur. Black-Pond testified that a dual relationship need not be
concurrent to be troublesome, and it does not matter if actual damages or negative consequences
do not result from a dual relationship; rather, it is the risk that is created and the potential for
harm that must be assessed.9
With respect to TH’s being given keys and access to the building, Black-Pond opined that
Engel failed to consider the impact on and risks posed to colleagues, employees, other BHG
clients, and TH and CS themselves. She noted TH had a criminal history, client files and
information were subject to possible review resulting in an invasion of privacy, and prescription
medicines and controlled substances were accessible by TH and CS—two persons who had drug
abuse histories. Black-Pond was concerned that TH did not grasp on boundaries well, which
became evident when he was found sleeping in a BHG office. Black-Pond noted that the risks
were heightened by TH’s and CS’s being together, and she was of the view that both of them
should have been referred to social workers other than Engel.
In regard to the motel payment by Engel, Black-Pond opined that his role should have
been to educate TH and CS about housing options and resources as opposed to Engel’s
personally meeting their needs, which had the potential of creating a dependency relationship.
Black-Pond believed that paying for the motel room as compensation for the construction work
complicated matters and the relationship between Engel and TH. Black-Pond concluded that
Engel’s conduct constituted a violation of the general duty to exercise due care, MCL
333.16221(a), a failure to conform to minimal standards of acceptable and prevailing practice for
the profession of social work, MCL 333.16221(b)(i) and MCL 333.16106(1), and engagement in
a dual relationship with a client giving rise to a risk of exploitation or harm, MCL 333.16221(h)
and Rule 338.2909(c).
9
The examiner admitted into evidence an article by Frederic G. Reamer entitled Boundary Issues
in Social Work: Managing Dual Relationships. The article was discussed during Black-Pond’s
testimony. We note the following passage:
Some boundary issues and dual relationships arise out of social workers’
genuine efforts to be helpful. Unlike social workers’ involvement in sexual
relationships or dual relationships that are intentionally self-serving, altruistic
gestures are benevolently motivated. Although these dual relationships are not
necessarily unethical, they do require careful management using the protocol
discussed later. [Reamer, Social Work: Managing Dual Relationships, 48 Social
Work 1, p 129 (January 2003).]
The article subsequently lists the following protocol: be alert to actual or potential conflicts of
interest; inform clients and colleagues about such conflicts and explore remedies that are
reasonable; consult professional literature, regulations, policies, ethical standards, and
supervisors in order to identify relevant boundary issues and constructive options; design plans
of action that address boundary issues and protect involved parties to the greatest extent possible;
document all discussions and steps taken to address boundary issues; and develop strategies to
monitor implementation of action plans. Id. at p 130.
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At the conclusion of the hearing, the examiner indicated that he would issue a written
decision. And on December 21, 2017, the hearings examiner issued his proposal for decision.
The examiner listed 29 findings of fact.10 The hearings examiner then set forth his conclusions
of law. He noted that LARA had the burden to prove the allegations in the administrative
complaint by a preponderance of the evidence.
With respect to Count I under MCL 333.16221(a), the examiner concluded that LARA
did not establish, by a preponderance of the evidence, a violation of a general duty, negligence,
or failure to exercise due care. More specifically, as to hiring TH to relocate a sink in June 2014,
the examiner determined that no negative ramifications arose from the job. In regard to hiring
TH to make repairs to the building after it was struck by a car, the examiner similarly found that
no issues or problems resulted from the employment. With respect to the remodeling work done
in December 2014, the examiner noted that CS was discovered using an office phone for
personal reasons on one occasion during the project; however, CS was not given permission or
authorization to be in the receptionist’s office where the phone was located and Engel told CS
10
Most of these facts were alluded to above, and we shall set them forth here in abbreviated form
in a single series separated by semicolons. The examiner found as follows: Engel was teaching a
parenting class in April 2014 through Love, Inc.; TH and CS, boyfriend and girlfriend, attended
the class by way of a referral through court proceedings; Engel taught the class through June 10,
2014; Engel hired TH in June 2014 to move a sink in the BHG building; Engel started seeing CS
individually on July 1, 2014, in Engel’s professional capacity as a social worker; Engel referred
TH to Porenta, LMSW, as a client in July 2014; Engel hired TH to perform repairs to the BHG
building in September 2014 after a car crashed into the building; Porenta saw TH for the last
time on October 20, 2014; Engel hired TH to remodel parts of the building in December 2014;
the remodeling project lasted two months; CS was found in the BHG building in December 2014
using a phone in a receptionist’s office absent permission; CS had her last social work
appointment with Engel in March 2015; Engel hired TH in October 2015 to perform some
exterior work on the BHG building; TH was later discovered sleeping in an empty office in the
building in October 2015; CS was also found in the office, along with food and personal
belongings; Engel did not give TH permission to sleep in the building; TH was thereafter
terminated relative to the exterior construction project; Engel utilized his credit card in October
2015 to pay for lodging for TH at a motel; the payment for lodging was a partial payment for
construction work performed by TH; TH started seeing Engel on December 4, 2015, in Engel’s
capacity as a social worker; the bureau sent a cover letter and subpoena to Engel on February 9,
2016, requesting all records pertaining to TH for the period of January 1 through November 30,
2015; Engel contacted the bureau on February 23, 2016, “and stated that he did not have records
for TH for the time period requested”; the bureau sent another letter and subpoena to Engel on
February 29, 2016, asking for any records pertaining to TH, with a deadline date of March 14,
2016; the bureau did not receive the requested documents by the due date; the bureau phoned and
spoke to Engel about the unanswered second subpoena on March 14, 2016; the bureau requested
and obtained Engel’s fax number and faxed the second subpoena to him; the bureau still did not
receive the subpoenaed documents from Engel; and Engel informed a bureau investigator on
June 15, 2016, that he had received both subpoenas.
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afterward that this was not acceptable. With regard to the work on the exterior of the building in
September and October 2015 and the discovery of TH sleeping in an empty office, along with
the presence of belongings and CS, the examiner observed that TH was immediately terminated
as the contractor on the project. The hearings examiner rejected LARA’s argument that simply
hiring TH for any project constituted negligence. The examiner reiterated that TH performed the
projects themselves without incident and that Engel effectively addressed the matters involving
the phone use and sleeping in the office. The examiner noted that “[i]f hiring an individual with
trouble in their past constitutes negligence, woe to anyone with a professional license who tries
to give someone a chance.”
As to Count II under MCL 333.16221(b)(i), the hearings examiner first determined that
while LARA’s expert Black-Pond clearly had knowledge of the minimal standards of practice,
she did not adequately explain “the application of those standards to the circumstances
surrounding this matter.” In regard to hiring TH to perform the various construction projects, the
examiner reached the same conclusions that he did in relation to addressing Count I. With
respect to LARA’s contention that TH and CS stayed in a motel room purchased with Engel’s
credit card and that they were kicked out because CS engaged in prostitution, the examiner found
that there was no credible evidence that the couple had in fact been kicked out of the motel for
participating in prostitution. He also stated that there was no evidence that Engel had any
knowledge that prostitution was allegedly occurring until later. The examiner further observed
that TH and CS were not Engel’s clients at the time they were staying at the motel. The
examiner additionally indicated that he failed to see how the method that Engel chose to pay TH
for his construction services (covering the motel cost) had “any bearing on [Engel’s] license to
practice as a social worker.” The examiner concluded that LARA failed to prove, by a
preponderance of the evidence, that Engel’s conduct constituted incompetence, i.e., that he failed
to adhere to the minimal standards of conduct.
With regard to Count III under MCL 333.16221(h) and the alleged improper dual
relationship between Engel and TH—employer/employee and social worker/client, the hearings
examiner concluded that there was no overlap between the period when there was a business
relationship and the period when there was a social worker/client relationship. The examiner
accepted, however, that a dual relationship between Engel and TH had existed, because Engel
taught the parenting class and could have been “viewed as a professional in the social work
capacity.” Therefore, “a relationship in that sense was established.” But, according to the
examiner, “in order for there to be a violation, the dual relationship must also pose a risk of
exploitation or harm to the client.” The examiner stated that he did not find Black-Pond
“particularly persuasive” and that there was no evidence showing that TH “felt that he was at risk
of being harmed or exploited by the relationship [with Engel].”11 The examiner pointed out that
TH was apparently still comfortable enough with Engel to seek social work services from him
after the employment relationship was terminated. The examiner then concluded that LARA
11
The examiner noted that TH and CS did not testify; therefore, he could not assess their
perceptions of the relationships they had with Engel and whether they felt exploited or threatened
with harm because of the relationships.
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failed to show, by a preponderance of the evidence, that the dual relationship posed a threat of
harm or exploitation to TH. Finally, the examiner found that Engel did not have a dual
relationship with CS, where CS was only TH’s girlfriend, not his wife, and where CS did not
have a business relationship with Engel.
With respect to Count IV under MCL 333.16221(i) and the subpoenas, the hearings
examiner first rejected Engel’s argument that the subpoenas had to be personally delivered or
served by certified mail, return receipt requested, as reflected in MCR 2.105. Next, the examiner
found credible the testimony of the bureau’s regulation agent who claimed that Engel admitted in
an interview that he received both subpoenas. Accordingly, the examiner concluded that Engel
failed to respond to the second subpoena and that LARA therefore proved, by a preponderance of
the evidence, that Engel violated MCL 333.16221(i) by failing to timely produce the subpoenaed
records.
On January 11, 2018, Engel filed an exception to the examiner’s proposal for decision,
challenging the conclusion that he violated MCL 333.16221(i) by failing to respond to the
subpoena. On January 12, 2018, LARA filed its own exceptions, challenging the examiner’s
determinations that it failed to establish Counts I, II, and III. In light of the exceptions, the
matter went to the subcommittee for resolution.
On July 24, 2018, the subcommittee, having entertained the parties’ arguments and
exceptions, issued its findings of fact and conclusions of law. The subcommittee accepted in full
the findings of fact made by the hearings examiner. See footnote 10 above. The subcommittee
also accepted the examiner’s conclusion of law that Engel failed to respond to the second
subpoena in violation of MCL 333.16221(i). The subcommittee, however, rejected the
examiner’s conclusions of law that LARA failed to prove the first three counts under MCL
333.16221(a), (b)(i), and (h). The subcommittee was persuaded by the testimony of Black-Pond
that Engel acted inappropriately. The subcommittee stated that Engel’s act of giving TH a key to
the building allowed him access to the contents of the building, “potentially including
confidential patient information and medications, which included controlled substances.”
According to the subcommittee, this posed a risk to TH and CS because they “both had a history
of substance usage.”
The subcommittee next indicated that under minimum standards of acceptable and
prevailing practices, Engel was required to inform TH “of potential boundary issues and have a
discussion with him about those,” yet nothing in the record showed that Engel had done so. The
subcommittee proceeded to discuss the motel matter and TH’s and CS’s housing situation. The
subcommittee accepted Black-Pond’s view that Engel should have explored housing options
with TH and CS that did not include Engel himself meeting their needs. The subcommittee also
discussed Black-Pond’s testimony that the business relationship between TH and Engel
complicated matters because Engel may have created a dependency by his taking care of TH’s
basic needs rather than educating TH on how to take care of them himself.
Additionally, the subcommittee agreed with Black-Pond’s testimony that the dual
relationship between TH and Engel could have resulted in a risk of exploitation or harm to TH,
to Engel’s colleagues, and to Engel himself. Furthermore, according to the subcommittee, there
was no evidence of Engel’s “attention to potential conflict or to discussions with anyone related
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to ensuring safety and low risk.” The subcommittee determined that based on the credible and
persuasive testimony of Black-Pond and upon review of the entire administrative record, LARA
proved by a preponderance of the evidence the first three counts and allegations of the complaint
under MCL 333.16221(a), (b)(i), and (h).
On August 1, 2018, the subcommittee issued its final order. The subcommittee reviewed
the procedural history of the case and summarized its findings of fact and conclusions of law.
For violation of MCL 333.16221(a), (b)(i), (h), and (i), the subcommittee placed Engel on
probation for one year with various conditions and fined him $2,000. Engel appeals by right.
II. ANALYSIS
A. STANDARDS OF REVIEW AND STATUTORY CONSTRUCTION
Rulings by a disciplinary subcommittee in regard to regulated professionals are reviewed
on appeal pursuant to Const 1963, art 6, § 28. Bureau of Prof Licensing v Butler, 322 Mich. App.
460, 464; 915 NW2d 734 (2017); Dep’t of Community Health v Anderson, 299 Mich. App. 591,
597; 830 NW2d 814 (2013); Dep’t of Community Health v Risch, 274 Mich. App. 365, 371; 733
NW2d 403 (2007). Const 1963, art 6, § 28, provides:
All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record.
A court is required to review the entire record, not just the portions of the record that
support an agency’s findings, when determining whether the agency’s decision was supported by
competent, material, and substantial evidence on the whole record. Butler, 322 Mich. App. at
464; Risch, 274 Mich. App. at 372. “Substantial evidence” is defined as evidence that a
reasonable person would find acceptably sufficient to support a conclusion, and this may be
substantially less than a preponderance but more than a scintilla of evidence. Butler, 322 Mich
App at 465; Risch, 274 Mich. App. at 372. The Court in Risch further explained:
Moreover, if the administrative findings of fact and conclusions of law are
based primarily on credibility determinations, such findings generally will not be
disturbed because it is not the function of a reviewing court to assess witness
credibility or resolve conflicts in the evidence. A reviewing court may not set
aside factual findings supported by the evidence merely because alternative
findings could also have been supported by evidence on the record or because the
-11-
court might have reached a different result. [Risch, 274 Mich. App. at 372-373
(citations omitted).12]
“Under this test, it does not matter that the contrary position is supported by more
evidence, that is, which way the evidence preponderates, but only whether the position adopted
by the agency is supported by evidence from which legitimate and supportable inferences were
drawn.” McBride v Pontiac Sch Dist (On Remand), 218 Mich. App. 113, 123; 553 NW2d 646
(1996). And “an appellate court must generally defer to an agency’s administrative expertise.”
Anderson, 299 Mich. App. at 598. “For purposes of Const 1963, art 6, § 28, a decision is not
‘authorized by law’ when it is in violation of a statute or a constitutional provision, in excess of
an agency’s statutory authority or jurisdiction, made upon unlawful procedure that results in
material prejudice, or when it is arbitrary and capricious.” Butler, 322 Mich. App. at 465, citing
Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich. App. 483, 488; 586 NW2d 563 (1998).
To the extent that statutory construction plays a role in our analysis and holding, we
apply de novo review with the goal being to discern the intent of the Legislature based on the
plain language of the statute being examined. Kemp v Farm Bureau Gen Ins Co of Mich, 500
Mich. 245, 252; 901 NW2d 534 (2017). And if statutory language is unambiguous, the
Legislature must have intended the meaning clearly expressed, which then mandates us to
enforce the statutory provision as written. Id. Finally, Engel challenges the determination by the
hearings examiner that Black-Pond qualified as an expert in the field of general social work. We
review for an abuse of discretion a trial court's ruling concerning the qualifications of a
proposed expert witness to testify in a proceeding. Woodard v Custer, 476 Mich. 545, 557; 719
NW2d 842 (2006). A trial court abuses its discretion when the challenged decision results in an
outcome falling outside the range of principled and reasonable outcomes. Id.
B. STATUTORY SCHEME – SUBCOMMITTEE DISCIPLINARY PROCEEDINGS
LARA filed the administrative complaint against Engel on the basis of MCL 333.16221,
which, at the time the complaint was filed, provided in relevant part as follows:
The department shall investigate any allegation that 1 or more of the
grounds for disciplinary subcommittee action under this section exist, and may
investigate activities related to the practice of a health profession by a licensee, a
registrant, or an applicant for licensure or registration. The department may hold
hearings, administer oaths, and order the taking of relevant testimony. After its
investigation, the department shall provide a copy of the administrative complaint
to the appropriate disciplinary subcommittee. The disciplinary subcommittee shall
12
With respect to the principle that we must generally defer to the credibility assessments of the
agency or subcommittee, we cannot help but note a somewhat nonsensical aspect of the
principle. A hearings examiner actually observes the witnesses and hears the testimony, not the
subcommittee. Indeed, the subcommittee is in no better position than this Court relative to
assessing the credibility of witnesses.
-12-
proceed under section 16226 if it finds that 1 or more of the following grounds
exist:
(a) Except as otherwise specifically provided in this section, a violation of
general duty, consisting of negligence or failure to exercise due care, including
negligent delegation to or supervision of employees or other individuals, whether
or not injury results, or any conduct, practice, or condition that impairs, or may
impair, the ability to safely and skillfully engage in the practice of the health
profession.
(b) Personal disqualifications, consisting of 1 or more of the following:
(i) Incompetence.[13]
***
(h) A violation, or aiding or abetting in a violation, of this article or of a
rule promulgated under this article.[14]
(i) Failure to comply with a subpoena issued pursuant to this part . . . .
[2014 PA 41115]
MCL 333.16231 authorizes the issuance of a complaint against a licensee for an alleged
violation of MCL 333.16221. See Butler, 322 Mich. App. at 465. And MCL 333.16231a
provides for a hearing on the complaint before a hearings examiner. The examiner “shall
determine if there are grounds for disciplinary action under section 16221 . . . .” MCL
333.16231a(2). The examiner must “prepare recommended findings of fact and conclusions of
law for transmittal to the appropriate disciplinary subcommittee.” Id.; see also Butler, 322 Mich
App at 465. “The hearings examiner shall not recommend or impose penalties.” MCL
333.16231a(2). “In imposing a penalty . . ., a disciplinary subcommittee shall review the
recommended findings of fact and conclusions of law of the hearings examiner.” MCL
13
“Incompetence” is statutorily defined as “a departure from, or failure to conform to, minimal
standards of acceptable and prevailing practice for a health profession, whether or not actual
injury to an individual occurs.” MCL 333.16106(1).
14
LARA cited Mich Admin Code, R 338.2909(c), in alleging a violation under MCL
333.16221(h). Rule 338.2909(c) was rescinded in 2016 after the complaint was filed. 2016 MR
4. At the time of the conduct alleged to have violated Rule 338.2909(c), the rule provided that
prohibited conduct for a social worker included “[i]nvolvment in a dual relationship with a client
or a former client and/or a client’s or former client’s immediate family in which there is a risk of
exploitation or harm to the client.” 2005 AACS.
15
MCL 333.16221 has been amended several times since the complaint was filed; however, the
provisions implicated in this case have largely remained unchanged. See 2016 PA 379; 2017 PA
75; 2017 PA 246; 2017 PA 247; 2017 PA 249; 2018 PA 463.
-13-
333.16237(1). Pursuant to MCL 333.16237(3), “[i]n reviewing the recommended findings of
fact and conclusions of law of the hearings examiner and the record of the hearing, a disciplinary
subcommittee may request the hearings examiner to take additional testimony or evidence on a
specific issue or may revise the recommended findings of fact and conclusions of law as
determined necessary by the disciplinary subcommittee, or both.” “A disciplinary subcommittee
is not permitted to conduct its own investigation or to take its own additional testimony or
evidence.” Butler, 322 Mich. App. at 466, citing MCL 333.16237(3). MCL 333.16237(4)
provides:
If a disciplinary subcommittee finds that a preponderance of the evidence
supports the recommended findings of fact and conclusions of law of the hearings
examiner indicating that grounds exist for disciplinary action, the disciplinary
subcommittee shall impose an appropriate sanction . . . . If the disciplinary
subcommittee finds that a preponderance of the evidence does not support the
findings of fact and conclusions of law of the hearings examiner indicating that
grounds exist for disciplinary action, the disciplinary subcommittee shall dismiss
the complaint. A disciplinary subcommittee shall report final action taken by it in
writing to the appropriate board or task force.
When a disciplinary subcommittee finds the existence of one or more of the grounds set
forth in MCL 333.16221, the subcommittee is authorized under MCL 333.16226(1) to impose
various sanctions against the licensee, including probation and fines.
C. DISCUSSION AND RESOLUTION
1. MCL 333.16221(i) – SUBPOENAS
Engel first argues that he did not violate MCL 333.16221(i) because the subpoenas were
not validly served under MCR 2.105, and he never actually received the second subpoena.
We initially note that the subpoenas were not personally served on Engel, nor were they
mailed to him by certified mail, return receipt requested. Rather, the subpoenas were sent by
ordinary first-class mail. The second subpoena was accompanied by a letter from LARA which
advised that the Ingham Circuit Court had authorized the subpoena pursuant to a petition filed by
the Department of Attorney General and which requested Engel to complete the
acknowledgment of service on the subpoena and return it to LARA within seven days. The
subpoena indicated that it was issued under the Public Health Code. Section 16235(1) of the
Public Health Code provides that “[u]pon application by the attorney general . . ., the circuit
court may issue a subpoena requiring a person to . . . produce books, papers, or documents
pertaining to [an] . . . investigation.” MCL 333.16235(1).16 The statute does not address the
16
The provision regarding failure to comply with a subpoena, MCL 333.16221(i), specifically
and only concerns subpoenas issued pursuant to Part 161 of Article 15 of the Public Health
Code, and MCL 333.16235 is found in Part 161.
-14-
manner of service of a subpoena. LARA argues that MCL 333.16192(2) governs service of a
subpoena under the Public Health Code. MCL 333.16192(2) provides in part:
The department may serve a notice of hearing or a complaint on an
applicant, licensee, or registrant in an action or proceeding for a violation of this
article . . . by regular mail and by certified mail, return receipt requested, to the
applicant's, licensee's, or registrant's last known address, by serving the notice on
the applicant, licensee, or registrant, or by making a reasonable attempt to serve
the notice on the applicant, licensee, or registrant.
As reflected in the statutory language of MCL 333.16192(2), there is no mention of the
service of subpoenas, only notices of hearing and complaints. The plain language of the statute
does not cover subpoenas. Kemp, 500 Mich. at 252. We also note that the language of MCL
333.16192(2) is rendered somewhat unclear by its referring to service “by regular mail and by
certified mail, return receipt requested” (emphasis added), instead of using the disjunctive “or.”17
MCR 2.506(G)(1) provides that “[a] subpoena may be served anywhere in Michigan in
the manner provided by MCR 2.105.” And MCR 2.506(G)(2) states that “[a] subpoena may also
be served by mailing to a witness a copy of the subpoena and a postage-paid card acknowledging
service and addressed to the party requesting service[,]” but “[i]f the card is not returned, the
subpoena must be served in the manner provided in subrule (G)(1).”18 MCR 2.105(A), which
generally addresses service of process on a person, provides for service on an individual
“personally” or “by registered or certified mail, return receipt requested, [with] delivery
restricted to the addressee.” MCR 2.105(A)(1) and (2). If MCR 2.506(G)(1) and MCR 2.105(A)
apply to the instant case, as Engel urges, then the subpoenas were indeed not validly served on
Engel. MCR 1.103 provides:
The Michigan Court Rules govern practice and procedure in all courts
established by the constitution and laws of the State of Michigan. Rules stated to
be applicable only in a specific court or only to a specific type of proceeding
apply only to that court or to that type of proceeding and control over general
rules. [Emphasis added.]
17
MCL 333.16192(2) further provides:
For purposes of this subsection, if service is by mail, service is effective 3
days after the date of mailing, and nondelivery does not affect the validity of the
service if the nondelivery was caused by the refusal of the applicant, licensee, or
registrant to accept service.
18
Engel did not sign any document acknowledging service even though the bureau had requested
a signed acknowledgment in the cover letter accompanying the second subpoena.
-15-
Here, although the subpoenas were mailed as part of an agency investigation and not a
particular court case, MCL 333.16235(1) provides, as noted above, that an agency application for
an investigation-related subpoena must be made to a “circuit court.” Consequently, it is certainly
arguable that a subpoena issued under MCL 333.16235(1) concerns a matter of court procedure.
Because the Public Health Code does not appear to address the issue regarding the manner of
service of a subpoena, we agree there is some logic in turning to the Michigan Court Rules for
guidance. On the other hand, MCR 2.506 is focused on subpoenas that are employed in
connection with trials and evidentiary hearings.19 MCR 2.506(A)(5) provides that “[a] subpoena
may be issued only in accordance with this rule or MCR 2.305, 2.621(C), 9.112(D), 9.115(I)(1),
or 9.212.” Except for the possibility of MCR 2.506 itself, none of these court rule provisions has
any applicability to our case.
We decline to resolve the question whether the bureau’s subpoenas had to be served in
compliance with MCR 2.506(G) and MCR 2.105. Assuming that the bureau did not properly
serve the subpoenas on Engel, we nonetheless affirm the finding that Engel failed to comply with
the second subpoena. For purposes of MCL 333.16221(i), we deem it sufficient to establish a
violation when there is evidence that an intended recipient of a subpoena actually received the
subpoena and failed to comply with its directives. The regulation agent who interviewed Engel
testified that Engel acknowledged receiving the second subpoena, yet Engel did not produce the
requested documents pursuant to the requirements of the subpoena. The hearings examiner
found that the regulation agent was a credible witness.
While Engel testified that he never received the second subpoena and saw it for the first
time at the June 2016 interview, there was competent, material, and substantial evidence that
Engel received the second subpoena and did not comply with its demands. Contrary to Engel’s
argument that logic dictates that he would have responded had he actually received the second
subpoena, the fact that he responded to the first subpoena by phone did not rule out the
possibility that he decided against responding to the second subpoena. We hold that the
testimony of the regulation agent and the investigator in charge of subpoenas sufficed to prove a
violation of MCL 333.16221(i) by a preponderance of the evidence. Moreover, it is not this
Court’s function to assess witness credibility or to resolve conflicts in the evidence. Risch, 274
Mich. App. at 372-373. It is irrelevant that the evidence also supported an alternative finding or
that this panel might have reached a different result. Id.
2. VIOLATION OF GENERAL DUTY, MCL 333.16221(a), INCOMPETENCE, MCL
333.16221(b)(i), AND VIOLATION OF ADMINISTRATIVE RULE REGARDING DUAL
RELATIONSHIPS, MCL 333.16221(h)
19
MCR 2.506(A)(1) provides:
The court in which a matter is pending may by order or subpoena
command a party or witness to appear for the purpose of testifying in open court
on a date and time certain and from time to time and day to day thereafter until
excused by the court, and to produce notes, records, documents, photographs, or
other portable tangible things as specified.
-16-
We have grouped our discussion of MCL 333.16221(a), (b)(i), and (h) together because
many of the underlying facts LARA relies on to support the first three counts of the
administrative complaint apply to more than one of the three statutory provisions implicated in
this case.
Initially, Engel argues that Black-Pond did not have the requisite expertise or knowledge
to qualify as an expert. At the hearing and after Engel’s counsel voir dired Black-Pond, Engel
objected to her being qualified as an expert on duty, standards of practice, and ethics, contending
that Black-Pond had no more training on those matters than any other licensed social worker
who would come before the hearings examiner. The examiner, however, ruled that Black-Pond
was qualified “in the field of general social work.” In responding to the exceptions LARA filed
to the examiner’s proposal for decision, Engel mentioned to the subcommittee that he had
challenged Black-Pond’s qualifications as an expert. But Engel did not ask the subcommittee to
review or reverse the examiner’s determination on the matter.20 Therefore, the subcommittee
never addressed the issue. The failure to file an exception to a proposal for decision constitutes a
waiver of an objection not raised. Attorney General v Pub Serv Comm, 136 Mich. App. 52, 56;
355 NW2d 640 (1984), citing MCL 24.281(3) (a proposal for decision shall become the final
decision in the absence of the filing of exceptions). Minimally, the issue was not properly
preserved. See Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich. 211, 234 n 23;
507 NW2d 422 (1993) (we need not address issues that were not posed in the lower tribunal).
Nevertheless, although our resolution of this appeal will ultimately not rely on our
conclusion regarding Black-Pond’s status as an expert, we will examine the issue because we
find it troubling. We note that LARA fails to address Engel’s argument challenging Black-
Pond’s credentials. MRE 702 provides:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise if
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case. [Emphasis added.]
With respect to her qualifications, Black-Pond testified consistently with her curriculum
vitae (CV), which was admitted into evidence. She also noted additional training and experiences
that were not contained in her CV, which was a bit out of date. Black-Pond is an LMSW and
also a licensed professional counselor. She had special training in relation to traumatized
children and adults, sensorimotor psychotherapy, and intergenerational trauma. Black-Pond had
given presentations on various aspects of trauma, including trauma assessment, treatment, and
exposure strategies. She had been employed as a child welfare worker, a forensic interviewer,
20
In Engel’s exception to the proposal for decision, he understandably focused exclusively on
the subpoena issue, making no claim that Black-Pond should not have been qualified as an
expert.
-17-
and she was currently the clinical director at the Children’s Trauma Assessment Center at
Western Michigan University. Black-Pond had authored papers on alexithymia, which is a
communication disorder, and on best practices in child welfare systems in connection with
serving traumatized children. She was a member of the International Society of Traumatic Stress
Studies. Black-Pond testified that she had been qualified as an expert in a similar administrative
hearing four or five months earlier. She further testified:
[I] am also a qualified expert in the area of assessing and treating sexually
abused children and children who have otherwise been traumatized, as well as in
the area of domestic violence, and testify pretty regularly in Kalamazoo and Cass
. . . and other counties.
LARA then sought to have Black-Pond qualified as an expert in social work. Before the
hearings examiner ruled, he allowed Engel’s attorney to voir dire Black-Pond. Engel’s counsel
asked whether she had any training or education in ethics and standards in social work. Black-
Pond responded that as an LMSW she had completed required ethics training. When asked
whether she had any education and training in ethics beyond that required of all LMSWs, she
stated, “I do not have any other specialized course work.” With respect to testifying as an expert
months earlier in a similar administrative hearing, Black-Pond testified that the case involved the
failure to comply with the general standards of practice. She observed that she had read the
Reamer article on boundary issues and dual relationships. Indeed, Black-Pond agreed that the
article formed the basis for her opinion in the instant case. Engel proceeded to challenge Black-
Pond’s qualifications to give expert testimony in the case, and the hearings examiner made his
ruling to qualify her as an expert in the field of general social work.
We agree with Engel’s challenge. Although Black-Pond certainly has some impressive
credentials, they are related to the areas of trauma and abuse, with a focus on children. Black-
Pond did not appear to have any more expertise in the field of social work ethics and standards of
practice than Engel, who testified to his belief that he had not been negligent, incompetent, or
otherwise in violation of the standards of practice. We also question the hearings examiner’s
determination to qualify Black-Pond as an expert in “general” social work when the crux of the
case concerned ethical standards and the violation of duties relative to social workers. The
record seems to reflect that Black-Pond garnered her “expertise” to give opinions in this case
solely and simply by reading the Reamer article. Given the record, the hearings examiner should
not have qualified Black-Pond as an expert for purposes of the specific issues posed in the case.
Finally, even if Black-Pond were qualified to give expert testimony, we hold that the
subcommittee’s findings and rulings were not supported by competent, material, and substantial
evidence on review of the whole record. The two broad areas of conduct giving rise to LARA’s
action were (1) the employment of TH to engage in the four construction projects—moving the
sink, repairing the car crash damage, remodeling the north side of the building, and working on
the roofing and exterior project—and (2) providing the funding for the motel stay. The
expressed concerns stemming from this conduct were (1) the alleged creation of a dual
relationship between Engel and TH, (2) possible conflicts of interest, (3) access to the building
that potentially compromised client files and records and placed medications and controlled
substances within the reach of TH and CS, (4) the crossing of boundaries, and (5) prospects of
dependency on Engel.
-18-
Although we agree with the examiner’s conclusion that LARA failed to establish the first
three counts of the complaint by a preponderance of the evidence, we note there were problems
with respect to the examiner’s proposal for decision in that he took a “no harm no foul” approach
to the case. The relevant provisions in MCL 333.16221 concern negligent conduct, failure to
conform to standards of acceptable practice, and dual relationships that create a risk of
exploitation or harm.21 Whether harm, exploitation, damages, or injury actually occurs is not
relevant to the inquiry; we are not addressing the elements of a tort. MCL 333.16221(a)
specifically provides that a violation on the basis of negligence can occur “whether or not injury
results.”
The record supports the inescapable conclusion that Engel’s primary intent in hiring TH
for the construction projects and in covering the motel costs was altruistic. There was no
evidence to the contrary. Moreover, as supported by Black-Pond’s testimony and the Reamer
article, there was nothing inherently or intrinsically improper about Engel’s hiring TH to
perform the construction work and paying for the motel room.
Accepting the premise that dual relationships need not be concurrent as asserted by
Black-Pond, we find it clear that a dual business/client relationship existed between Engel and
TH considering the construction projects and that Engel formally accepted TH as a client for
purposes of his social work practice on December 4, 2015. We question whether LARA proved
the existence of a dual relationship before December 4, 2015, at which time the construction
projects had all been completed. With respect to whether the parenting class created a social
worker/client relationship between TH and Engel, Black-Pond indicated that it could have done
so based on the surrounding circumstances and TH’s perception of those circumstances. There
was, however, no testimony regarding TH’s perceptions. In regard to the intake meeting
between Engel, TH, and CS in June 2014, Engel testified that the purpose of the meeting was to
assess whether he should or could accept TH and CS as clients. Ultimately, Engel did not take
TH as a client at that time. Additionally, Engel testified that he made clear to TH that TH’s
participation in some of Engel’s sessions with CS were not as a client; only CS was his client.
We note that the parenting class ended in June 2014, TH had his last session with Porenta in
October 2014, and the remodeling project did not start until December 2014, with the exterior
project commencing nearly ten months later in the fall of 2015. Nevertheless, assuming the
existence of a dual relationship before December 4, 2015, we reiterate that dual relationships are
not inherently or intrinsically improper.
21
With respect to rescinded Rule 338.2909(c) and its prohibition against certain dual
relationships, Engel argues that because the rule was rescinded, he should not be subject to its
reach. We conclude that this argument lacks merit. First, Rule 338.2909(c) was in effect when
Engel participated in the conduct at issue. Second, the testimony of Black-Pond and the Reamer
article make clear that engaging in particular dual relationships can generally constitute failure to
exercise due care and failure to conform to minimal standards of practice even without
contemplating any specific administrative rule barring such dual relationships.
-19-
Black-Pond and the subcommittee relied on Engel’s asserted failure to manage the dual
relationship given that there was no information that he had discussions or took steps to
minimize or eliminate potential problems regarding dependency, conflicts of interest, and
boundaries. We first note, and there is no dispute, that LARA had the burden of proof. MCL
333.16237(4). Our examination of the record reveals that when questioning Engel at the hearing,
LARA did not ask Engel any questions concerning actions he took to manage the dual
relationship so as to avoid potential dependency, conflict-of-interest, and boundary problems.
Neither did LARA produce TH and CS as witnesses; consequently, we have no evidence as to
their observations, thoughts, concerns, and recollections relative to Engel’s managing potential
problems. Black-Pond conceded that she had no information regarding the nature of discussions
that Engel may have had with TH and CS. Engel’s testimony on direct examination by his own
attorney provided the only evidence on Engel’s management of the assumed dual relationship,
and it was entirely ignored by the subcommittee.
Engel answered in the affirmative when asked whether he had any discussions with TH
regarding perceived conflicts or issues about doing work for Engel and then becoming his client.
Engel noted that he did not observe any stress on TH’s part in regard to performing the
construction work. The following passage comes from Engel’s testimony:
[D]ual practice is not an intrinsic problem. [D]ual relationship[s] exist[]
all the time. You know, it’s a common happening, a common circumstance. And
you know, [Black-Pond] did say that you have to manage that. She also said that
she sees no evidence that I managed that. And . . . my response to that is that no
one asked me any questions related to what I did to protect TH and CS.
***
[D]ual relationships happen all the time. You have to manage them. You
have to pay attention to them. I have done that with TH and CS. I worked
consistently all the time to do what was in their best interest.
And . . . the other is that [Black-Pond] talks about boundary violations and
crossings. And she presents . . . those without . . . making clear[,] as Reamer
does[,] that boundary crossings . . . happen all the time. . . . We need to be aware
of them and manage them. In point of fact, I did. And again, I always, I always
worked for the best interest of my clients. I have been a social worker for 45
years. And that’s where I come from.
This concluded Engel’s direct examination by his counsel. LARA’s attorney expressly
declined cross-examination. When Engel had earlier been examined as part of LARA’s case in
chief, he was asked no questions about what he did or did not do to manage any potential
problems related to a dual relationship. There was not a scintilla of evidence that Engel
mismanaged the dual relationship.
Next, the subcommittee observed that Engel’s act of giving TH a key to the building
allowed him access to the contents of the building, “potentially including confidential patient
information and medications, which included controlled substances.” This, according to the
-20-
subcommittee, posed a risk to TH and CS because they “both had a history of substance usage.”
The problematic aspect of these findings is that LARA presented no evidence that medications
and controlled substances were actually accessible by TH and CS, even though they had access
to the building and unlocked offices. Engel’s testimony suggested that all drugs were kept in
locked cabinets or closets, and there was no testimony to the contrary. The same is true with
respect to client files and records—there was no testimony that they were not kept under lock
and key or in secured desks or cabinets. And as far as managing the situation to prevent an
intrusion, Engel testified that Cochrane-Hoekstra and Wilkins were informed that TH had a key
and that the office manager was given direction to make sure that interior doors needed to be
locked. We additionally point out that with regard to the remodeling project that led to CS’s
using an office phone, it was a unanimous vote of the members that resulted in the project’s
being awarded to TH, not Engel’s own doing. Further, with respect to the roofing and exterior
project, the record shows that Wilkins was fully aware that TH was performing the construction
and that he had a key to the building, yet an interior door on Wilkins’s side of the building was
left unlocked.
In regard to Engel’s paying for the motel room, we first note that Engel exercised
reasonable discretion by refusing to hand over cash as TH had initially requested. Further, Engel
was faced with a situation where TH and CS were desperate for shelter, and Engel, instead of
turning his back on the couple, assisted them with obtaining lodging, which was entirely
reasonable given that money was owed or would be owed to TH for his construction services.
Black-Pond’s testimony and the subcommittee’s conclusion that compensating TH for
construction work by paying for the motel “complicated” matters and may have created a
dependency relationship befuddles us; it was simply another form of payment that was
quantifiable and directed for a legal, useful purpose. As with much of LARA’s case against
Engel, it did not provide any evidence that TH or CS had not previously been educated regarding
housing resources, options, or opportunities by Engel or other professionals—TH and CS did not
testify and Engel was not examined on the subject. We wholeheartedly agree with the
examiner’s statement that Black-Pond did not adequately explain the application of the standards
of practice to the particular facts in this case.
We affirm in part and reverse and remand in part for the subcommittee to enter an
amended or new final order consistent with this opinion and to reevaluate the issue of sanctions
in light of this opinion and the singular violation. We do not retain jurisdiction. Neither party
having fully prevailed on appeal, we decline to award taxable costs under MCR 7.219.
/s/ Michael J. Kelly
/s/ Jane E. Markey
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