Watts v. Board of Nursing

Under OAR 137-003-0580(9), no express “penalty of perjury” clause is required for an affidavit to be valid.

Petitioner (Watts) sought review of a final order of the Oregon State Board of Nursing (the Board) denying her a license to practice as a registered nurse in Oregon. The Board filed a motion for summary determination to deny the license after concluding that Watts’ application contained fraudulent documents purportedly showing that she met educational criteria for licensure by graduating from a university when, in fact, she never did so. In response, Watts filed a motion in opposition, supported by her own sworn affidavit. An ALJ granted the Board’s motion for summary determination. On appeal, Watts argued the ALJ erred in granting the Board’s motion for summary determination because the pleadings and affidavits created a genuine issue as to a material fact. Under OAR 137-003-0580(9), a party or agency may satisfy the burden of producing evidence for or against a motion for summary determination through affidavits that are “made on personal knowledge, establish that the affiant is competent to testify to the matters stated therein and contain facts that would be admissible at the hearing." In the in the context of the rule, no express “penalty of perjury” clause is required for an affidavit to be valid. Even though Watts’ affidavit did not include “penalty of perjury” language, it contained the necessary elements. The Court therefore found it met the minimal requirements to be considered an affidavit within the context of OAR 137-003-0580(9). The Court then concluded that Watts was entitled to a hearing because the affidavit showed evidence creating a material issue of fact.  Vacated and remanded.