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Oregon court again reverses revocation based on summary determination

The Court of Appeals of Oregon, following on a 2017 case, King v. Department of Public Safety Standards, reversed the revocation of a licensee because the state's Board of Licensed Professional Counselors and Therapists determined her sanction through a summary determination issued by an administrative law judge.

(Nesbit v. Board of Licensed Professional Counselors and Therapists)

The board filed disciplinary charges against Nesbit, a professional counselor, based on what it alleged was an inappropriate but nonsexual relationship with a client.

During Nesbit’s disciplinary hearing before an administrative law judge, the board successfully moved for two summary determinations, first to find Nesbit guilty of three of the charged violations, and second, to find Nesbit’s license should be revoked based on those violations. The board then adopted the recommendation of the judge, revoked Nesbit’s license, and imposed $22,000 in costs.

Nesbit appealed, arguing, among other things, that the administrative law judge and the board acted inappropriately by determining her sanction through a summary determination, and the case went before the Court of Appeals of Oregon, which issued an opinion April 18.

The court agreed with Nesbit, holding that decision to revoke her license could not have been made by summary determination. Under the Oregon statute which empowers the board, “[t]he Board undeniably has authority, as a matter of discretion, to revoke petitioner’s license.”

“Notably, however, the statute does not mandate that the board revoke petitioner’s license based upon her particular conduct or undisputed violations,” the court noted. A 2017 decision by the board, King v. Department of Public Safety Standards, determined that a discretionary disciplinary sanction is an inappropriate subject for summary determination.

Under Oregon regulations, parties seeking summary determination must show that they are entitled to a decision as a matter of law, and disciplinary sanctions which are subject to discretion cannot be a matter of law. Therefore, the board’s decision to that effect was illegitimate.

The court reversed the revocation order and remanded the case to the board for further proceedings.