and Submitted September 13, 2016, St. Mary's Academy,
of Licensed Professional Counselors and Therapists 2014006;
Spencer D. Kelly argued the cause for petitioner. With him on
the briefs was Welch, Bruun & Green.
J. Maukonen, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Paul D. Smith, Deputy Solicitor
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: Petitioner seeks judicial review of a final order of
the Board of Licensed Professional Counselors and Therapists
(board) revoking her counseling license. Petitioner argues
that the board erred by revoking her license on summary
determination rather than through a contested hearing.
The board committed legal error in revoking petitioner's
license on summary determination. Under King v. Dept. of
Public Safety Standards, 289 Or.App. 314, 412 P.3d 1183
(2017), imposing a particular sanction is not a proper matter
for summary determination because it is an exercise of the
agency's discretion and not susceptible to determination
as a matter of law.
Or.App. 402] DEHOOG, P. J.
a former licensed professional counselor, seeks judicial
review of a final order of the Board of Licensed Professional
Counselors and Therapists (board) revoking her license based
on three findings of professional misconduct. Petitioner
raises three assignments of error on review; due to our
resolution of the first assignment, we do not discuss the
second and third. In her first assignment of error,
petitioner argues that it was improper for the board to
revoke her counseling license on summary determination. Based
on our recent decision in King v. Dept. of Public Safety
Standards, 289 Or.App. 314, 412 P.3d 1183 (2017),
which we held that an agency's exercise of discretion in
imposing a sanction is not a proper matter for summary
determination, we agree with petitioner. Accordingly, we
reverse and remand.
our disposition in this case relates to a purely procedural
matter, we limit our discussion of the facts underlying
petitioner's license revocation proceedings to those
necessary for context. This disciplinary action arose from
allegations that petitioner had engaged in a nonsex-ual, but
nonetheless inappropriate, dual relationship with a client.
Petitioner began providing counseling services to the client
in 2001. Those services continued until February 2013.
Because, in the board's view, petitioner's
relationship with her client violated various regulations
applicable to licensed professional counselors, the board
filed and served petitioner with a notice of intent to revoke
petitioner's license, alleging several instances of
misconduct. Petitioner's matter was assigned to an
administrative law judge (ALJ) for a contested case hearing
and, following preliminary proceedings not relevant here, the
board moved for summary determination on some of its
allegations. Based on the parties' briefing and related
filings, the ALJ granted summary determination as to the
following three violations:
[291 Or.App. 403] "1. Licensee engaged in an
inappropriate dual relationship with Client, in violation of
OAR 833-100-0021(1) and (10), OAR 833-100-0031(1) and (2),
and OAR 833-100-0041(2).
"2. Licensee used her counseling relationship with
Client to further her personal and financial interests, in
violation of OAR 833-100-0041(2), (3) and (10).
"3. Licensee abruptly terminated her counseling services
to Client without providing Client with any pre-termination
counseling or counselor referrals, in violation of OAR
833-100-0021(2), (10) and (17)."
appeal, petitioner does not dispute that her conduct violated
those provisions of law; as explained below, she challenges
only the substantive and procedural validity of the ...