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Wolff v. Board of Psychologist Examiners

Court of Appeals of Oregon

April 19, 2017

Christian WOLFF, Petitioner,
v.
BOARD OF PSYCHOLOGIST EXAMINERS, Respondent.

          Argued and Submitted October 7, 2015

         Board of Psychologist Examiners 2012073.

          Bear Wilner-Nugent argued the cause and fled the brief for petitioner.

          Keith Kutler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carolyn Alexander, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Wilson, Senior Judge.

         Case summary:

         Petitioner requests judicial review of a final order of the Board of Psychologist Examiners that suspended petitioner's psychologist associate's license and imposed a civil penalty of $10, 000. The board notified petitioner that it intended to discipline him for listing the abbreviation "PsyA" after his name in various public forums, using the phrase "Master of Arts Clinical Psychology" to describe his degree in at least one of those forums, and indicating that he "has been practicing psychology for 15 years" on at least one website. In the board's view, that conduct was "immoral or unprofessional conduct" because it could mislead the public into believing that petitioner had a doctoral degree in psychology and was a licensed psychologist. The board also alleged that petitioner's conduct violated a statutory prohibition against holding oneself out to be a psychologist without first obtaining a license. An administrative law judge (ALJ) agreed with the board and issued a proposed order that granted summary determination to the board. The board rejected petitioner's exceptions to the ALJ's order and issued a final order that adopted the ALJ's proposed order. On judicial review, petitioner argues that the board erred because the summary determination record did not establish that his conduct would in fact have misled or deceived the public into believing that he had a doctoral degree in psychology and was a licensed psychologist. Held: Summary determination is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, there is "no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought" and the party fling the motion "is entitled to a favorable ruling as a matter of law. Viewing the summary determination record in the light most favorable to petitioner, a reasonable factfnder, considering the totality of the circumstances, could find that petitioner's conduct would not have misled or deceived the public into believing that petitioner had a doctorate in psychology and was a licensed psychologist. Because the record on summary determination was not sufficient to eliminate any issue of material fact as to whether petitioner's conduct was misleading or deceiving, summary determination was inappropriate.

         Reversed and remanded.

          ORTEGA, P.J.

         Petitioner requests judicial review of the Board of Psychologist Examiners' final order that suspended petitioner's license to practice as a psychologist associate and assessed a $10, 000 civil penalty. The board notified petitioner that it intended to discipline him for (1) listing the abbreviation "PsyA" after his name on letterhead, business cards, signature blocks, and websites, (2) using the phrase "Master of Arts Clinical Psychology" to describe his degree in at least one of those forums, and (3) indicating that he "has been practicing psychology for 15 years" on at least one website. An administrative law judge (ALJ) issued a proposed order that granted summary determination to the board, concluding that petitioner engaged in "immoral or unprofessional conduct" under ORS 675.070(2)(d)[1] and violated the prohibition in ORS 675.020(1)(b) against representing "oneself to be a psychologist without first being licensed under ORS 675.010 to 675.150."[2]

         After rejecting petitioner's exceptions to the ALJ's order, the board issued a final order that adopted the ALJ's proposed order with minor modifications, concluding that petitioner was "engaged in immoral or unprofessional conduct" because he created a "serious risk to public health or safety" by misleading and deceiving the public about his academic degree and credentials.[3] See ORS 675.070(2)(d)(A) (conduct that is a danger to the health or safety of the public is "immoral or unprofessional conduct"). Accordingly, the board suspended petitioner's psychologist associate license for one year[4] and, because it concluded that petitioner's conduct was "deliberate and with knowledge, " assessed a $10, 000 civil penalty.

         On judicial review, petitioner argues that the ALJ committed legal error by concluding that the conduct that he admitted to violated ORS 675.020(1)(b) and ORS 675.070 (2)(d). He argues that his use of "PsyA" was not misleading to the public because he also included phrases such as "psychologist associate, " "licensed psychologist associate" or "Portland psychologist associate" immediately following his use of "PsyA." Alternatively, he asserts that, even assuming that his use of "PsyA" was a falsification of his academic degree or professional credentials, the board "failed to adduce substantial evidence to connect such a falsification with any public detriment." Similarly, he asserts that his use of "Master of Arts Clinical Psychology" and "practicing psychology" were not misleading in the context in which he used those words and did not constitute a danger to the health or safety of the public. As for the ALJ's conclusion that he held himself out as a licensed psychologist, he asserts that the ALJ erred because a psychologist associate is authorized by the applicable statutes to "practice psychology"-at least to a limited extent. Finally, petitioner asserts that, even if his conduct merited discipline, the $10, 000 penalty should be remanded for reconsideration because whether petitioner engaged in "willful or reckless disregard for the law" was a factual issue that could not be resolved on summary determination.

         In response, the board first asserts that petitioner failed to preserve the arguments that he makes on appeal. On the merits, the board argues that, based on the totality of petitioner's undisputed conduct and the summary determination record, the ALJ permissibly concluded that petitioner's conduct would mislead the public into thinking that petitioner had a doctoral degree in psychology and was a licensed psychologist, and thus, it represented a risk to the public health and safety. The board also asserts that the relevant statutes unambiguously state that only a "doctoral level psychologist" is licensed to "practice psychology, " so petitioner's assertions that he "has been practicing psychology for 15 years" violated ORS 675.020(1)(b).

         Ultimately, we conclude that genuine issues of material fact remained that precluded a ruling for the board on summary determination. Thus, the ALJ erred by granting summary determination to the board, and we reverse and remand the board's final order for further proceedings.

         We begin with the relevant undisputed background and procedural facts. Petitioner earned a Master of Arts degree in psychology. His transcript indicated that he "majored" in psychology with an "emphasis" in clinical psychology. He is licensed by the board as a psychologist associate under ORS 675.065 and, pursuant to ORS 675.065(3), received approval from the board to "function without immediate supervision." Psychologist associate licenses are issued to applicants who meet certain statutory requirements, possess a "master's degree in psychology" from an approved program, and "are deemed competent to perform certain functions within the practice of psychology under the periodic direct supervision of a psychologist" licensed in Oregon, unless they receive approval to practice without such supervision, as petitioner was. ORS 675.065(1), (3). The "functions within the practice of psychology" that a psychologist associate may perform "may include but are not restricted to administering tests of mental abilities, conducting personality assessments and counseling, including educational and vocational planning." ORS 675.065(1).

         In May 2013, the board issued a notice to petitioner that it intended to impose a civil penalty of $5, 000 against him for violating ORS 675.070(2)(d), based on allegations that petitioner placed "PsyA" followed by the words "Licensed Psychologist Associate" behind his name on letterhead, business cards, signature block, and websites available to the public. The board's notice indicated that "PsyA" was not a "recognized abbreviation in the field of psychology, either as an academic degree or professional license designation, " and asserted that use of that abbreviation constituted "statements that are false, deceptive or fraudulent regarding [petitioner's] academic degree." Accordingly, the board alleged that petitioner's conduct constituted "immoral or unprofessional conduct" under ORS 675.070(2)(d) and violated an ethical standard adopted by the board that prohibited false or deceptive statements. See OAR 858-010-0075(1) (adopting the ethical principles and code of conduct of the American Psychological Association). Subsequently, the board amended its notice to allege that petitioner's use of the phrase "Master of Arts Clinical Psychology" and references to "practicing psychology" on letterhead and websites also violated ORS 675.070(2)(d) because that conduct constituted "false, deceptive or fraudulent statement [s]" regarding petitioner's academic degree and credentials.[5] In addition, the board alleged that petitioner's conduct violated ORS 675.020(1)(b), which prohibits representing oneself as a psychologist without first obtaining a license.

         The board's amended notice proposed suspending petitioner's psychologist associate license for one year and imposing a $10, 000 civil penalty. Petitioner requested a contested case hearing and the board ...


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