Weldon v. Bd. of Lic. Pro. Counselors and Therapists

Under ORS 183.650(3), an agency may only modify the ALJ’s finding of fact when there is “clear and convincing evidence” that the finding was incorrect. If a party challenges this modification then the court will review the finding of fact de novo and remand to the agency if the court finds that the modification was an error.

Weldon appealed the Board of Licensed Professional Counselors and Therapists (the board) order suspending her counseling license and imposing sanctions. Weldon was counseling a 10-year-old child concerning social problems and abuse by an older sibling. Due to Weldon’s handling of the counseling, the board imposed a hearing before an Administrative Law Judge. The ALJ recommended to the board that Weldon’s license should not be suspended and that no sanctions should be imposed. The board modified the ALJ recommendation and concluded that Weldon violated the Board’s Code of Ethics, OAR 833-100, and was “grossly negligent in the practice of professional counseling.” ORS 675.745(1) (d). Weldon appealed the board’s decision and contends four assignments of error. This Court agreed with one of these assignments of error, that the board violated ORS 183.650(3) when it deleted the ALJ’s finding of fact without clear and convincing evidence that the finding was incorrect. Reversed and remanded for reconsideration of Weldon’s violations.