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Bice v. Oregon Board of Psychology

Court of Appeals of Oregon

February 21, 2019

David T. BICE, Ph.D., Petitioner,
v.
OREGON BOARD OF PSYCHOLOGY, Respondent.

          Argued and Submitted January 18, 2019

          Board of Psychologist Examiners 2009035, 2010007

          Steven J. Sherlag argued the cause and fled the briefs for petitioner.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.

         Case Summary:

         This judicial review proceeding under the Administrative Procedures Act is before the Court of Appeals for a second time, following a remand to the Board of Psychologist Examiners. Petitioner contends, among other things, that the board on remand made new, additional factual findings, without identifying and explaining the reason for that modification as required by ORS 183.650(2). Held: The Court of Appeals agreed with petitioner. In determining that petitioner's conduct violated Ethical Standard 3.04 and ORS 675.070(2)(d), the board made new findings about the effect of petitioner's conduct. The board was required to explain those new findings under ORS 183.650(2).

         Reversed and remanded.

         [296 Or.App. 195] LAGESEN, P.J.

         This judicial review proceeding under the Administrative Procedures Act is before us for the second time, following a remand to the Board of Psychologist Examiners. See Bice v. Board of Psychologist Examiners, 281 Or App 623, 383 P3d 913 (2016). Petitioner contends, among other things, that the board on remand made new, additional factual findings, without identifying and explaining the reason for that modification as required by ORS 183.650(2). We agree and, for that reason, we again reverse and remand the order.

         Petitioner is a licensed psychologist. The board sought to discipline petitioner for inappropriate conduct with two teenage female clients. Following a contested case hearing before an administrative law judge (ALJ) at the Office of Administrative Hearings, the ALJ, based on his factual findings, determined that petitioner had committed none of the alleged violations and that no sanctions were appropriate. The board reached a contrary conclusion, finding that petitioner violated three different ethical standards as well as ORS 675.070(2)(d).[1] In so doing, the board modified the ALJ's factual findings and also made new factual findings. Bice, 281 Or App at 626-29.

         In his first petition, petitioner challenged the board's modified findings. Consequently, we reviewed the modified findings de novo, supplanting those findings with our own findings, as ORS 183.650(4) required us to do. Bice, 281 Or App at 630-37. Among other things, we found that petitioner had kissed his 18-year-old patient, SM, on the cheek at the end of his last therapy session with her, rejecting the board's finding that petitioner had attempted to kiss SM on the lips. We explained that a finding that petitioner had kissed SM [296 Or.App. 196] on the cheek was supported by evidence of contemporaneous references to the cheek kiss in her diary and reports she made to her mother. Id. at 631-32. Although we found that the kiss on the cheek occurred, we made no findings about the effect that the kiss had on SM. At that time, neither the ALJ nor the board had made any findings about the effect that the kiss had on SM, having viewed the facts differently than we did.

         In addition to making the specific de novo factual findings required under ORS 183.650(4), we also set aside several supplementary factual findings that the board had made, concluding that they were not supported by substantial evidence. Id. at 637-38. We then remanded the order to the board to reconsider its order in view of our new findings and rejection of certain of its new findings: "Having found that several historical facts are not as found by the board, we must remand for the board to reconsider, under a correct understanding of the facts, its conclusions" that petitioner violated the statutes and ethical standards on which the board's disciplinary decision was predicated. Id. at 638.

         On remand, the board determined that petitioner violated one ethical standard-Ethical Standard 3.04[2]- and ORS 675.070(2)(d) (by violating that ethical standard and also by causing SM emotional distress). It did so based largely on our ...


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