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Nesbit v. Board of Licensed Professional Counselors & Therapists

Court of Appeals of Oregon

April 18, 2018

Lynne Joy NESBIT, Petitioner,
v.
BOARD OF LICENSED PROFESSIONAL COUNSELORS AND THERAPISTS, Respondent.

          Argued and Submitted September 13, 2016, St. Mary's Academy, Portland.

          Board of Licensed Professional Counselors and Therapists 2014006;

          Spencer D. Kelly argued the cause for petitioner. With him on the briefs was Welch, Bruun & Green.

          Jona 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 General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge. [*]

         Case 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.

         Held: 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.

         [291 Or.App. 402] DEHOOG, P. J.

         Petitioner, 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.[1] 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), [2] in 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.

         Because 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)."

         On 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 ...


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