Bice v. Bd. of Psychological Examiners

An appellate court may review a Board's final order de novo for findings of fact inconsistent with an administrative law judge's proposed order, and may reverse and remand the final order where there is substantial evidence of the truth of those facts.

Bice appealed final order of the Board of Psychologist Examiners (Board) concluding Bice violated professional standards in his treatment of a client and imposing sanctions. Bice argued that the board erred by changing its recitation of key facts and findings of credibility as found by the administrative law judge (ALJ). An agency must explain changes made to its findings of fact between an ALJ’s proposed order and the agency’s final order. ORS 183.650(2). Upon judicial review, the appellate court reviews the modifications for “substantial evidence.” ORS 183.482(8)(c); Becklin v. Bd. of Examiners for Engineering, 195 Or. App. 186, 206, 97 P.3d 1216 (2004), rev den, 338 Or. 16 (2005). “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.” ORS 183.482(8)(c). The Oregon Court of Appeals found that the Board’s findings of fact departed from the facts provided in the ALJ’s proposed order without explanation for the modification. The Court found substantial evidence that some of the facts as found by the Board were inaccurate when compared to findings of fact made by the ALJ. Reversed and remanded.