Bice v. Oregon Board of Psychology

Remand is required "when an agency makes unidentified and unexplained changes to an order, including making additional factual findings, if those new findings change the basis of the order." See Robin v. Teacher Standards and Practices Comm., 291 Or App 379, 396-98, 421 P3d 385 (2018).

Petitioner appealed a determination by the Board of Psychologist Examiners (“Board") who found that Petitioner had violated Ethical Standards 3.04 and ORS 675.070(2)(d)  when Petitioner kissed a teenage client (“SM”) on the cheek. Petitioner assigned error to the Board's new finding of facts on remand without explaining those findings, which is required pursuant to ORS 183.650(2). On appeal, Petitioner challenged the Board’s new finding that Petitioner's kiss had an "adverse reaction" to SM and that SM "suffered harm" as a result of that kiss because that finding was not in the judicial proceeding nor among the findings that the Board was directed to reconsider on remand. In response, the Board argued that it did not make any new findings, but rather only "drew permissible inferences from previously found historical facts." Remand is required "when an agency makes unidentified and unexplained changes to an order, including making additional factual findings, if those new findings change the basis of the order." See Robin v. Teacher Standards and Practices Comm., 291 Or App 379, 396-98, 421 P3d 385 (2018). The Court held that the Board failed to comply with the requirements of ORS 183.650(2) when it made a determination based on a new finding of fact without offering any explanation.

Reversed and Remanded.