remanding the board’s order, in part, because the board failed to explain why petitioner should be disciplined for presenting unqualified expert testimony in a judicial proceeding where the court nevertheless permitted the introduction of that testimony, presumably after meeting the minimum standards of reliability
How later courts described this case
- remanding the board’s order, in part, because the board failed to explain why petitioner should be disciplined for presenting unqualified expert testimony in a judicial proceeding where the court nevertheless permitted the introduction of that testimony, presumably after meeting the minimum standards of reliability
- stating that rules must give adequate notice of the prohibited conduct
- “[B]y granting authority to *725 the Board to impose sanctions for ethical violations, the legislature intends that practitioners be on notice about what conduct the board’s code of ethics requires before sanctions are imposed[.]”
- "[B]y granting authority to the Board to impose sanctions for ethical violations, the legislature intends that practitioners be on notice about what conduct the board's code of ethics requires before sanctions are imposed[.]"
Written by the judges who cited it.
The opinion
EDMONDS, P. J.,
concurring.
I agree with the reasoning and the result of the majority opinion. I write separately to express my concern that the Board of Psychologist Examiners is ignoring a fundamental statutory policy in the application of its administrative authority to petitioner’s case. I do not question the authority of the Board to determine what is and what is not ethical conduct for the practice of psychology in this state, and so long as its interpretations of its own rules are plausible, they will be upheld by this court. See Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142 , 881 P2d 119 (1994). However, by granting authority to the Board to impose sanctions for ethical violations, the legislature *321 intends that practitioners be on notice about what conduct the Board’s code of ethics requires before sanctions are imposed, and that element appears to be lacking in this case.
The facts of this case illustrate my concern. Petitioner was found to be in violation of ethical code provisions that state general rules of conduct for the profession of psychology regarding statements in a public forum. The code requires accurate and objective reporting. According to the Board, petitioner “misrepresented the bounds of the science of psychology” by the rendering of his opinion. It reasoned,
“[petitioner] knew or should have known he could not determine Gerald Hanson’s guilt with psychological assessment. He also should have known that any opinion regarding Gerald Hanson’s future dangerousness needed significant qualification given the limited information he had.”
However, the language of the code does not prohibit a psychologist from testifying in court and rendering an opinion about the guilt of a criminal defendant or his future dangerousness, and the Board points to nothing in its text or the context that would inform a practitioner that it is unethical conduct to render such opinions in a public forum. 1
Furthermore, the Board does not point to any well-recognized interpretation of the code that would provide petitioner constructive notice of the standards that it imposes. Finally, the Board does not point to any evidence that petitioner concealed or misrepresented any fact to the court conducting the bail hearing. So far as the record shows, he disclosed the extent of his investigation and the factors on which he based his opinion to the judge presiding over the bail hearing.
ORS 675.110(12) authorizes the Board “[t]o formulate a code of professional conduct for the practice of psychology giving particular consideration to the Ethical Standards of Psychologists, promulgated by American Psychological *322 Association.” The statute also gives the Board rule-making authority to carry out its grant of authority, ORS 675.110(15), and the authority to impose sanctions for violations of the provisions of ORS 675.010 to ORS 675.150, its rules, and any code of professional conduct that it has adopted. See ORS 675.110(3), ORS 675.110(4) and ORS 675.110(5). When the legislature authorizes a board to exercise control over professional standards by adopting codes or rules, it is deemed to have contemplated a legislative policy that the board provide fair notice of grounds for sanction before imposing a sanction that could lead to the loss of a practitioner’s profession or occupation. Megdal v. Board of Dental Examiners, 288 Or 293, 311-15 , 605 P2d 273 (1980). Although that intention does not require that all circumstances of professional conduct be described by a professional code of conduct, the legislature’s intent in the delegation of its authority is manifested in two particulars: (1) The Board must give notice of censurable conduct; and (2) it must confine disciplinary administration to announced standards. Id. at 314 . Here, it appears that the legislature’s intent in that regard has been frustrated. My review of the board’s record reveals nothing that would have put petitioner on prior notice that his testimony was unethical, for the reasons articulated by the Board. The majority is correct when it says that on remand the Board must clarify why petitioner’s conduct is subject to sanction.
One further issue deserves comment. The Board argues that any requirement imposed on it by the legislature under the reasoning in Megdal has been satisfied by the adoption by the Board of the American Psychological Association’s “Ethical Principles of Psychologists” (the code) and that we held to that effect in Loomis v. Board of Psychologist Examiners, 152 Or App 466 , 954 P2d 839 (1998). In Loomis , the petitioner was disciplined for making representations and recommendations to a court about an in-court custody dispute because the Board believed that she had not disclosed her bias toward her client and her reservations that would have affected the reliability of her recommendations. We held that the Board, by relying on the code and an expert’s testimony regarding the code, was acting within its delegated authority from the legislature and that there was *323 substantial evidence to support its finding of nondisclosure. Key to our decision was the principle in the code adopted by the Board that psychologists must “strive to ensure that the results of assessments and their interpretations are not misused by others.” In Loomis , the above standard imposed by the code was readily ascertainable by those regulated. It does not follow that every provision of the code will provide the requisite degree of notice of standards for censurable conduct. Our holding in Loomis should not be understood as a wholesale endorsement that the Board, by adopting the code, has complied with the legislature’s mandate to provide notice in every case. Also, I believe that ORS 675.110 requires the Board to explain in every case why the person subject to sanction had at least constructive knowledge of the standard of professional conduct that has been alleged to have been violated before the alleged violation occurred. Otherwise, the board could be without authority to sanction. It is my hope that the Board will reexamine its position on these issues on remand in fairness to petitioner and to facilitate further review, if any.
Accordingly, I concur with the majority.
In essence, it appears that the Board is using a code that establishes aspirational standards as the basis for imposing specific discipline. That is not the original purpose of the code, and the Board needs to act with greater care, and give more thorough explanations, when it converts a profession’s aspirations into specific disciplinary requirements.