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In re Application of Ascherman

Sup Ct, New York County

August 12, 2013

In the Matter of the Application of LEE I. ASCHERMAN, M.D., DWARAKANATH G. RAO, M.D., COLLEEN L. CARNEY, Ph.D., DONALD L. ROSENBLITT, M.D., WILLIAM E. BERNSTEIN, M.D., CALVERN E. NARCISI, M.D., and ELIZABETH A. BRETT, Ph.D., Petitioners
v.
THE AMERICAN PSYCHOANALYTIC ASSOCIATION, INC., Respondent. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, Index No. 100206/13

Unpublished Opinion

SCHLESINGER, J.

Petitioners, all of whom are members of the respondent professional organization known as The American Psychoanalytic Association, Inc. (the Association), commenced this proceeding seeking Article 78, declaratory, and injunctive relief. Specifically, petitioners seek to enjoin the Association from implementing any new standards for the appointment of Training Analysts and from certifying any new Training Analysts by any method other than one approved by the Association's Board on Professional Standards (BOPS) on June 13, 2012 and codified in the Standards For Education and Training in Psychoanalysis (OSC, Exh A). In its counterclaims, the Association seeks a judgment mandating that BOPS adopt new standards for the appointment of Training Analysts that are "objective and verifiable" and declaring that the Executive Council, as the Board of Directors of the Association, retains the ultimate authority to set the standards for the appointment of Training Analysts.

When the proceeding was commenced, this Court issued a temporary restraining order (TRO) after hearing argument from both parties. In the TRO, the Court granted the injunctive relief requested by petitioners on an interim basis, but expressly allowed an Ad Hoc Committee of the Association's members to meet to develop new standards. All issues have now been fully briefed, and oral argument has been held, allowing for this determination on the merits.

Background

The resolution of this "turf" war depends on a close reading of the documents governing the respective roles of the parties and the interplay between provisions in those documents and the New York Not-For-Profit Corporation Law (N-PCL).

The Association is a professional membership organization incorporated in or about 1951 under the N-PCL; in addition to its national organization, its membership includes 31 accredited training institutes and 38 affiliate societies throughout the United States. According to the Certificate of Amendment of the Certificate of Incorporation (Exh B), the purpose of the Association is "to study and advance psychoanalysis; to advocate and maintain standards for the training of psychoanalysts and for the practice of psychoanalysis; to foster the integration of psychoanalysis with other branches of science, and to encourage research in all fields having to do with the scientific knowledge and welfare of man."

The Association is governed in large part by its bylaws (Exh C). According to Article V of the bylaws, the terms "Board of Directors" and "Directors" as used in the Certificate of Incorporation refer respectively to the Association's Executive Council and Councilors. While citing different legal authority, both sides here agree that the Association is managed by its Executive Council, which has broad authority "except as limited by these bylaws." Art V, Section 2.

One such arguable limitation is found in Article VII, Section 4 of the bylaws. That provision establishes a committee known as the Board on Professional Standards (BOPS) whose "duties ... shall be to 1) set principles, minimum standards and prerequisite requirements for the selection of applicants for psychoanalytic education and clinical training; ... [and] 3) set principles and minimum standards for training in psychoanalysis ..." As evidence of the claimed independence of BOPS from the Executive Council, petitioners note that Article VII of the bylaws specifies that BOPS shall be composed of representatives from each of the Association's approved institutes; such specificity is conspicuously absent with respect to the structuring of other committees, which the Executive Council has broad discretion to define.

In contrast, as evidence of the claimed authority of the Executive Council over BOPS, the respondent Association notes that Article VII obligates BOPS to "report its proceedings and actions to the Executive Council." The Association further argues that the bylaws in no way grant BOPS the sole authority to set standards and that, to the contrary, N-PCL § 701(a) obligates the Executive Council as a Board of Directors to oversee the activities of the Association and its committees.

The particular standards at issue in this tug-of-war relate to the role and appointment of Training Analysts. Pursuant to the written standards approved by BOPS in June 2012 (Exh A), a candidate seeking to become a psychoanalyst must fulfill three requirements: (1) complete a curriculum of psychoanalytic study at, and graduate from, an Association-approved institute; (2) conduct at least three supervised psychoanalytic treatments, consisting of at least four sessions per week with different genders; and (3) undergo personal psychoanalysis conducted by a Training Analyst, who is a certified psychoanalyst. Because of the active role a Training Analyst plays in the training process, the appointment to that role is considered prestigious and can significantly increase one's earning potential.

As such, the appointment process for Training Analysts is quite rigorous. The local training institute first chooses which aspiring Training Analysts, in their judgment, warrant further consideration. The institute then vets the individual's clinical work and cases to determine if the work meets the particular institute's criteria — criteria which the respondent Association here criticizes as "unwritten, unpublicized, not verifiable and highly subjective, and in many cases the determinations are not subject to appeal." (Answer, ¶ 37). The Association further criticizes the process in that the "Training Analysts in charge of vetting aspiring Training Analysts may have a vested economic interest in limiting the number of Training Analyst appointments, " causing the process to become "political" and "a frequent source of complaints from the Association membership" and leading some members to advocate for reform. (Answer, ¶¶ 37-42).

In the fall of 2011, three members of the Association posted comments on the membership listserv, urging the creation of a Training Analyst appointment system that was "objective, with collectively defined and easily verifiable certification criteria" so as to make the system "immune to politics and manipulation at both the national and local levels." Those members, Dr. Pyles, Dr. Perlman and Dr. Procci, urged BOPS to consider the idea at its January 2012 meeting and to prepare a proposal for implementation by June 2012. (¶¶ 45-46). BOPS, however, purportedly declined to discuss the idea at its January meeting, preferring to receive a formal written proposal for discussion in June. ¶ 47).

In response, at its own meeting the following day, the Executive Council approved the formation of a five-person task force to work with Dr. Pyles to develop the Perlman-Pyles-Procci proposal (PPP Proposal). The stated goal was to "present the proposal to BOPS in a timely manner so that BOPS can properly consider it at its June 2012 meeting." (See January 2012 Executive Council meeting minutes, Pyles Aff. Exh 11). A few months later, on April 4, 2012, the task force released its formal Proposal for Establishment of a National TA System, and it gave a copy to BOPS for consideration at its June 13 meeting. The proposal provided for, among other things, a central listing of ...


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