383 P.3d 913
Or. Ct. App.2016Background
- Petitioner, an Oregon-licensed psychologist since 1975 with no prior discipline, faced board proceedings based on complaints from two former female clients (SM and SC) about touching and conduct during sessions in 2003 and earlier.
- The Board of Psychologist Examiners reopened an earlier dismissed 2003 complaint (SM) after receipt of a separate complaint (SC’s father) and investigated via an investigator (Berry) whose interviewing methods and disclosures are disputed.
- An ALJ conducted a contested-case hearing (14 witnesses, documentary exhibits) and issued a proposed order finding the board had not proven violations by petitioner.
- The board issued a final order modifying several of the ALJ’s factual findings, credited its expert over petitioner’s, concluded petitioner used touch as a therapeutic intervention without informed consent or adequate monitoring, and imposed sanctions.
- On judicial review under ORS 183.650(4), the court performed de novo review of disputed historical facts modified by the board, concluding some board modifications were not supported by the preponderance of evidence and remanding for reconsideration.
Issues
| Issue | Petitioner’s Argument | Board’s Argument | Held |
|---|---|---|---|
| Whether board properly modified ALJ factual findings (de novo review standard) | Board erred in modifying key historical facts and relied on tainted investigation; ALJ findings were correct | Board contends it correctly modified findings and credited its investigator and witnesses | Court applied ORS 183.650(4) de novo review, found several board-modified facts unsupported, reversed and remanded |
| Whether petitioner kissed or attempted to kiss SM | Denied attempt to kiss; ALJ found evidence inconclusive | Board credited SM and found attempted kiss and a cheek kiss occurred | Court found no attempt to kiss on lips but did find a cheek kiss based on contemporaneous diary/communications |
| Whether petitioner used touch as a therapeutic modality requiring informed consent/documentation | Petitioner used general/comforting touch, not therapeutic intervention; he asked permission and monitored reactions | Board found petitioner used touch as an intervention, citing expert, and failed to obtain informed consent or document rationale | Court found, on the record and expert testimony, petitioner used general/comforting touch (not therapeutic modality) and had asked for permission; remanded for board to reconsider violations |
| Whether board made unsupported additional findings (e.g., massaging neck/shoulders) | Such additional factual findings were not in ALJ order and lack substantial evidentiary support | Board initially denied making such finding or claimed irrelevance | Court held board made an unexplained additional finding (massaging) without ORS 183.650(2) explanation and lacking substantial evidence; finding unsupported |
Key Cases Cited
- Weldon v. Bd. of Lic. Pro. Counselors and Therapists, 266 Or. App. 52 (2014) (explains de novo review under ORS 183.650(4) of agency modifications to ALJ historical findings)
- Corcoran v. Board of Nursing, 197 Or. App. 517 (2005) (court must independently assess witness credibility and persuasiveness of expert testimony under de novo review)
- WaterWatch of Oregon v. Water Resources Dept., 268 Or. App. 187 (2014) (petitioners invoking de novo review must identify each challenged modification and provide supporting record citations)
- Becklin v. Board of Examiners for Engineering, 195 Or. App. 186 (2004) (agency must explain additional findings under ORS 183.650(2); review of such findings is for substantial evidence)
- Clinical Research Institute v. Kemper Ins. Co., 191 Or. App. 595 (2004) (issues raised first in reply brief may be forfeited)