STATE ex rel. OKLA. STATE BD. OF BEHAVIORAL HEALTH LICENSURE v. MATTHEWS-GLOVER

STATE ex rel. OKLA. STATE BD. OF BEHAVIORAL HEALTH LICENSURE v. MATTHEWS-GLOVER
2019 OK CIV APP 76
Case Number: 116081
Decided: 03/06/2019
Mandate Issued: 12/11/2019
DIVISION IV
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

STATE OF OKLAHOMA ex rel. OKLAHOMA STATE BOARD OF BEHAVIORAL HEALTH LICENSURE, Petitioner/Appellee,
v.
VANITA MATTHEWS-GLOVER, LPC, Respondent/Appellant.

APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA

HONORABLE PATRICIA G. PARRISH, TRIAL JUDGE

AFFIRMED

R. Mitchell McGrew, ASSISTANT ATTORNEY GENERAL, STATE OF OKLAHOMA, Oklahoma City, Oklahoma, for Petitioner/Appellee

Malinda S. Matlock, Jacqueline M. McCormick, PIERCE, COUCH, HENDRICKSON, BAYSINGER & GREEN, L.L.P., Oklahoma City, Oklahoma, for Respondent/Appellant

DEBORAH B. BARNES, PRESIDING JUDGE:

¶1 In November 2015, the Oklahoma State Board of Behavioral Health Licensure (the Board) issued an order finding Vanita Matthews-Glover (Ms. Glover, or Appellant) "has violated 59 O.S. § 1912(A)(5) and OAC 86:11-3-3(e) by engaging in a romantic relationship with a client within five years after the end of the counselor/client professional relationship." The order states,

Section 1912(A)(5) provides that [the Board] may deny, revoke, suspend or place on probation any license or specialty designation issued pursuant to the provisions of the Licensed Professional Counselors Act (59 O.S. §§ 1901-1920) to a licensed professional counselor [(LPC)], if the person has engaged in unprofessional conduct as defined by the rules established by the Board.

The order further provides: "The Oklahoma Administrative Code 86:[11]-3-3(e) states that [LPCs] shall not engage in any activity that is or may be sexual in nature with a former client for at least five (5) years after the termination of the counseling relationship." In its order, the Board determined that Ms. Glover's "license as [an LPC] is hereby REVOKED effective thirty (30) days after she is notified of this final agency order . . . ."

¶2 Ms. Glover sought judicial review of the Board's order by filing a petition in the district court. She requested that the district court set aside the Board's order, modify the order "to a lesser punishment," or reverse and remand the case to the Board for further proceedings. Ms. Glover asserted, among other things, that the Board's conclusions are "arbitrary and capricious," and that the Board violated her "constitutional rights of substantive due process under the United States and Oklahoma Constitutions."1

 

¶3 A hearing was held before the district court in April 2017. Prior to this hearing, Ms. Glover filed a brief in which she clarified that she admits she violated "OAC 86-11-3-3(e) by having a romantic relationship with . . . a former client[] more than 2 years but less than 5 years after the therapy relationship with [the former client] ended." Ms. Glover asserted, however, that the five-year rule found in § 86:11-3-3(e) of the Administrative Code "violates substantive due process and is an unequal exercise of power by the Board." In addition, Ms. Glover asserted the remedy of license revocation "under these facts is excessive, arbitrary and capricious[.]"

 

¶4 Following the hearing, the district court entered its order finding, in part, as follows:

2. There was clear and convincing evidence that [Ms. Glover] violated the Oklahoma State Board of Behavioral Health License rules 59 O.S. § 1912(A)(5) and OAC 86:[11]-3-3(e) by engaging in a romantic relationship with a client within five years after the end of the counselor/client professional relationship, which was the basis for the decision by the Board to revoke [her] LPC license.
3. The decision of [the Board] is neither arbitrary nor capricious.
4. [Ms. Glover's] substantive due process claim is denied.
5. [Ms. Glover] failed to show [the Board's] five year ban on any activity that is or may be sexual in nature between [LPCs] and their former clients is arbitrary and unreasonable, having no rational relationship to public health, safety, or welfare.
6. [The Board's] rule banning for five years sexual relationships between [LPCs] and their former clients is rationally related to protection of public health, safety, or welfare.
7. [Ms. Glover's] equal protection claim is denied as [the Board] has articulated a potential reason to support the finding of a rational basis for the difference in the time frame of the ban on sexual relationships with former clients for [LPCs] and Licensed Marriage and Family Therapists. . . .

¶5 From the district court's order upholding the Board's order, Ms. Glover appeals.

STANDARD OF REVIEW

¶6 The Licensed Professional Counselors Act2 provides that "[t]he hearings provided for by the Licensed Professional Counselors Act shall be conducted in conformity with, and records made thereof as provided by, the provisions of" the Oklahoma Administrative Procedures Act.3 59 O.S. 2011 § 1914. The Oklahoma Administrative Procedures Act provides, in pertinent part, as follows:

(1) In any proceeding for the review of an agency order, the Supreme Court or the district or superior court, as the case may be, in the exercise of proper judicial discretion or authority, may set aside or modify the order, or reverse it and remand it to the agency for further proceedings, if it determines that the substantial rights of the appellant or petitioner for review have been prejudiced because the agency findings, inferences, conclusions or decisions, are: (a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence, as defined in Section 10 of this act, including matters properly noticed by the agency upon examination and consideration of the entire record as submitted; but without otherwise substituting its judgment as to the weight of the evidence for that of the agency on question of fact; or
(f) arbitrary or capricious; or
(g) because findings of fact, upon issues essential to the decision were not made although requested. (2) The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue. (3) The reviewing court shall affirm the order and decision of the agency, if it is found to be valid and the proceedings are free from prejudicial error to the appellant.

75 O.S. 2011 § 322 (footnotes omitted).

ANALYSIS

I. Equal Protection

¶7 Appellant argues the five-year restriction on sexual relationships with former clients applicable to LPCs in Oklahoma violates the Equal Protection Clause4 because this Clause, according to Appellant, "does not allow classification based on unreal or feigned differences." Appellant asserts, "Other similarly situated behavioral health professionals, governed by the same Board, do not have the same time restrictions as LPCs; the restrictions are shorter." Appellant singles out "specifically LMFTs" -- referring to marital and family therapists. Appellant asserts LPCs and marital and family therapists -- two "counseling professions overseen by the Board" -- "are simply too similarly situated" to justify the stricter treatment of LPCs. She asserts, "The Board must show that the differences in the rules' respective timeframes" -- i.e., a two-year restriction on sexual relationships with former clients applicable to marital and family therapists, and a five-year restriction applicable to LPCs5 -- "has a rational basis which connects to the difference between LPCs and other behavioral health professions it governs; it has not and cannot." Appellant similarly asserts there is a "lack of rational explanation for the five year ban, especially in light of the significantly differing standards," and argues the Board has unconstitutionally promulgated and applied "a different rule for the same behavior by a therapist[.]"

¶8 The Oklahoma Supreme Court has explained:

An "equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right [such as the right to vote, the right of interstate travel, rights guaranteed by the First Amendment, or the right to procreate] or operates to the peculiar disadvantage of a suspect class [such as a class based on race, alienage or ancestry]." Although not an absolute guarantee of equality of operation or application of state legislation, the Equal Protection Clause is intended to safeguard the quality of governmental treatment against arbitrary discrimination.

Gladstone v. Bartlesville Indep. Sch. Dist. No. 30 (I-30), 2003 OK 30, ¶ 9, 66 P.3d 442 (footnote omitted). "The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996) (citations omitted). Thus, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end." Id. (citation omitted) That is, "[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (citations omitted).

¶9 Appellant does not assert that the separate classification of LPCs targets a suspect class, or that the five-year rule in question burdens a fundamental right. Instead, she frames her argument under a rational basis review standard, asserting "[t]here is no rational basis for the 5 year rule[.]"6

 

¶10 As indicated above, LPCs in Oklahoma are governed by the Licensed Professional Counselors Act, 59 O.S. 2011 & Supp. 2018 §§ 1901-1920 (the LPCA). Marital and family therapists are governed by a separate act -- the Marital and Family Therapist Licensure Act, 59 O.S. 2011 & Supp. 2015 §§ 1925.1-1925.18 (the MFTLA). The responsibilities and powers granted to LPCs in the LPCA differ in significant ways from the responsibilities and powers granted to marital and family therapists in the MFTLA. The LPCA provides that "'Licensed professional counselor' or 'LPC' means any person who offers professional counseling services for compensation to any person and is licensed pursuant to the provisions of the [LPCA]. The term shall not include those professions exempted by Section 1903 of this title[.]" 59 O.S. Supp. 2013 § 1902. Section 1903 states, in pertinent part, that "[t]he [LPCA] shall not be construed to include" marital and family therapists, among other professionals. 59 O.S. 2011 § 1903(A)(1). In addition, § 1902 of the LPCA states as follows:

 

For the purpose of the [LPCA]: . . . ;
3. "Counseling" means the application of mental health and developmental principles in order to: a. facilitate human development and adjustment throughout the life span,
b. prevent, diagnose or treat mental, emotional or behavioral disorders or associated distress which interfere with mental health,
c. conduct assessments or diagnoses for the purpose of establishing treatment goals and objectives, and
d. plan, implement or evaluate treatment plans using counseling treatment interventions; 4. "Counseling treatment interventions" means the application of cognitive, affective, behavioral and systemic counseling strategies which include principles of development, wellness, and pathology that reflect a pluralistic society. Such interventions are specifically implemented in the context of a professional counseling relationship[.]

¶11 By contrast, the MFTLA provides, in part, as follows:

For purposes of the [MFTLA]:
. . . ;
3. "Licensed marital and family therapist" means a person holding a current license issued pursuant to the provisions of the [MFTLA];
4. "Marital and family therapy" means the assessment, diagnosis and treatment of disorders, whether cognitive, affective, or behavioral, within the context of marital and family systems. Marital and family therapy involves the professional application of family systems theories and techniques in the delivery of services to individuals, marital pairs, and families for the purpose of treating such disorders;
. . . ;
6. "Practice of marital and family therapy" means the rendering of professional marital and family therapy services to individuals, family groups and marital pairs, singly or in groups, whether such services are offered directly to the general public or through organizations either public or private, for a fee, monetary or otherwise[.]

59 O.S. Supp. 2013 § 1925.2. The MFTLA further states it "shall not be construed to apply to" LPCs, among other professionals. 59 O.S. 2011 § 1925.3(A)(2).

¶12 As explained by the United States Supreme Court,

The Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike. But so too, the Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. The initial discretion to determine what is different and what is the same resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.

Plyler v. Doe, 457 U.S. 202, 216 (1982) (emphasis added) (internal quotation marks omitted) (citations omitted).

¶13 While a licensed marital and family therapist has the power to assess, diagnose and treat "disorders, whether cognitive, affective, or behavioral, within the context of marital and family systems," LPCs plainly have greater powers and responsibilities relating, for example, to "human development and adjustment throughout the life span," and the prevention, diagnosis and treatment of "mental, emotional or behavioral disorders or associated distress which interfere with mental health," without the specific limitations found in the MFTLA. Evidence of the in-depth and long-term role which LPCs are authorized and likely to play in the lives of at least some of their patients is found in Appellant's own affidavit, where she states: "I have patients that have seen me for more than 10 years and their continued improvement requires continuity of care."

¶14 Furthermore, the Board asserts the five-year restriction is appropriate because "LPCs present unique and more severe concerns than similar post-therapeutic relationships between," for example, marital and family therapists and their former clients. The Board asserts that, "[w]hen treating clients, the LPC approaches problems with the client's individual development in mind, examining and discussing the client's psychological and social development. [Family and marital therapists] do not focus on these factors in therapy. Rather, [they] look to identify and craft solutions for problems within a relationship."7

 

¶15 We conclude the five-year restriction is not inconsistent with the roles and responsibilities of LPCs set forth in the governing statutory language. As explained by the Oklahoma Supreme Court,

 

we must apply . . . legislative definition[s] as written because it is the duty of a court to give effect to legislative acts, not to amend, repeal or circumvent them. This Court has no power to rewrite legislation simply because the legislative definition may not comport with our conception of prudent public policy.

City of Tulsa v. State ex rel. Pub. Employees Relations Bd., 1998 OK 92, ¶ 18, 967 P.2d 1214 (citations omitted). In the MFTLA and the LPCA, the Legislature has created two different classes of professionals with readily distinguishable powers and, as stated by the Board on appeal, "[t]he fact that [these and other professionals] all practice professions in the broad field of counseling and are all governed by the same State agency is insufficient to consider them a single class." The Board further states, "Although they may not be as distinguishable from the lay perspective as is a dentist from a podiatrist, these . . . distinct professions all differ in approaches to treatment, number of clients seen at one time, clinical techniques, length of the counseling relationship, and more."

The [United States] Supreme Court has held that a state legislature addressing health and safety reform "may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others.

Nat'l Ass'n for Advancement of Psychoanalysis, 228 F.3d at 1052 (internal quotation marks omitted) (citation omitted). In a context comparable to the present case, the Ninth Circuit explained:

The question is not whether we would choose to implement the same scheme, but whether it was rational for the [state legislature] to implement different licensing schemes for psychologists, and for social workers and family counselors. It is not irrational for [a law-making body] to progress one step, or one profession, at a time.

Id. at 1053 (citation omitted).

¶16 Returning to the general protections afforded by the Equal Protection Clause where there is no suspect class or fundamental right at issue, "[i]n the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous." Romer, 517 U.S. at 632. As noted by the Ninth Circuit, "The day is gone" when the Fourteenth Amendment could be utilized "to strike down state laws" merely "because they may be unwise, improvident, or out of harmony with a particular school of thought." Nat'l Ass'n for Advancement of Psychoanalysis, 228 F.3d at 1051 (citation omitted). In the absence of a targeted suspect class or an implicated fundamental right, we must start with the presumption "that even improvident [legislative] decisions will eventually be rectified by the democratic processes." City of Cleburne, Tex., 473 U.S. at 440.

¶17 As explained by the Oklahoma Supreme Court in Gladstone,

Because we are dealing here neither with a suspect classification nor with an infringement upon a fundamental right, the rational-basis standard of review governs this dispute. Rational-basis scrutiny is a highly deferential standard that proscribes only that which clearly lies beyond the outer limit of a legislature's power. A statutory classification is constitutional under rational-basis scrutiny so long as "there is any reasonably conceivable state of facts that could provide a rational basis for the classification." The rational-basis review in equal protection analysis "is not a license for courts to judge the wisdom, fairness, or logic of legislative choices." For these reasons, legislative bodies are generally "presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality."

2003 OK 30, ¶ 12 (footnotes omitted).

¶18 Even assuming arguendo that a shorter time bar might constitute a wiser or more perfect rule ( and Appellant does not suggest that a time bar of some duration is inappropriate for sexual relationships between LPCs and their clients ) the five-year restriction is, nevertheless, rationally related to a legitimate state interest. The relatively strict five-year rule protects clients of LPCs from the potentially harmful effects of engaging in a sexual relationship with the person entrusted with their psychological care. Clients of LPCs may be particularly vulnerable8 emotionally and psychologically, and the greater protection afforded the more in-depth, individualized and potentially long-term care provided by LPCs to their clients is not irrational. Consequently, we reject Appellant's Equal Protection argument.

II. Substantive Due Process

¶19 For reasons similar to those set forth above for rejecting Appellant's Equal Protection argument, we must also reject Appellant's substantive due process argument.

Substantive due process of law is the general requirement that all governmental actions have a fair and reasonable impact on the life, liberty, or property of the person affected. Arbitrary action is thus proscribed. . . . [T]he analysis requires an adjudication of whether the legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest.

Braitsch v. City of Tulsa, 2018 OK 100, ¶ 7, _ P.3d _ (citations omitted). The Oklahoma Supreme Court has similarly explained that "substantive due process . . . bars certain governmental action despite the adequacy of procedural protections where the regulatory action is so arbitrary and irrational as to violate due process. Substantive due process does not protect from erroneous regulatory action, but arbitrary and irrational actions." CompSource Mut. Ins. Co. v. State ex rel. Okla. Tax Comm'n, 2018 OK 54, ¶ 47, _ P.3d _ (footnotes omitted).

¶20 As explained in our preceding analysis of Appellant's Equal Protection argument, the five-year restriction is rationally related to a legitimate state interest, and the restriction does not constitute an arbitrary legislative action that fails to advance any legitimate government interest. However arguably unwise or imperfect the regulatory action, according to Appellant, it is neither arbitrary nor irrational. Consequently, we must reject Appellant's substantive due process argument.

III. Revocation of LPC License

¶21 Finally, Appellant argues "[t]he Board's decision to exercise its harshest punishment is excessive, arbitrary, and capricious." The legal basis of this argument is not further specified in Appellant's Brief-in-chief, and Appellant has not filed a Reply Brief on appeal. Furthermore, Appellant has not provided any citation to legal authority in this section of her appellate brief. "Argument without supporting authority will not be considered." Okla. Sup. Ct. R. 1.11(k), 12 O.S. Supp. 2013, ch. 15, app. 1.

¶22 Nevertheless, in this section of her appellate brief, Appellant does refer to her brief filed below in the district court. In that brief, which is contained in the appellate record, Appellant cites to some authority in support of her argument attacking the Board's decision to revoke her license. She first cites to Fisher v. State Insurance Board, 1929 OK 432, 281 P. 300, in which the Oklahoma Supreme Court stated:

We think that it must be conceded that where a statute authorizes the cancellation of a license, the causes for revocation must be reasonably definite and certain, and that the character of the acts constituting the necessary elements that would justify revocation must be stated and charged with reasonable certainty.

Id. ¶ 15. However, in Fisher, the insurance board revoked the petitioner's license based on statutory language providing authority to do so for "other bad practices." This language was challenged by the petitioner on the basis that it constituted "entirely indefinite and uncertain" language. Id. ¶ 16.

¶23 In the present case, by contrast, the definiteness and certainty of the rule in question are not challenged. The LPCA, together with the pertinent regulations promulgated by the Board,9 set forth reasonably definite and certain causes for the revocation. Indeed, Appellant has stipulated to the fact that she violated the five-year rule discussed above, and one of the remedies available to the Board for such a violation is license revocation. For these reasons, we are not persuaded that Fisher lends any support to Appellant's argument.

¶24 Appellant also cites to Massengale v. Oklahoma Board of Examiners in Optometry, 2001 OK 55, 29 P.3d 558, in which the Oklahoma Supreme Court stated that "in determining whether administrative findings and conclusions are supported by substantial evidence, the reviewing court considers all the evidence -- including that which fairly detracts from its weight." Id. ¶ 20 (footnote omitted). The Massengale Court further stated, however, that "[g]reat weight is accorded an administrative entity in the exercise of its expertise." Id.10

 

¶25 With Fisher and Massengale as her only cited authority, Appellant asserts the following facts constitute mitigating factors which reveal that "[t]he Board's indefinite revocation arbitrarily and capriciously exceeds the severity of the violation": that the client in question "was not the complainant, was not pursued by Ms. Glover, was not abused by Ms. Glover, and was not harmed by Ms. Glover."

 

¶26 However, although these asserted facts are supported by portions of the former client's testimony elicited at the administrative hearing, the former client, who testified he suffers from "anxieties," also revealed that he was suffering from substantial guilt as a result of the sexual relationship with Appellant and its consequences. The client testified, "I feel like the problems that she's facing right now -- being accused of -- was my fault." He testified he feels "very bad" and "very guilty[.]" At the least, one reasonable interpretation of portions of the former client's testimony reveal he is an already psychologically vulnerable individual who has been negatively impacted by the sexual relationship with his former LPC. As stated above, the five-year rule is meant to protect LPC clients and former clients who may be particularly vulnerable emotionally and psychologically. Thus, we disagree with Appellant that there is not "one single violation of the purpose of the [five-year] rule" in this case.

¶27 As indicated above, it is difficult to discern the precise legal nature of Appellant's argument in this section of her appellate brief, a section which contains no citation to legal authority. Nevertheless, a review of the record and the stipulations -- including the undisputed violation of the five-year rule within approximately two-years of the end of the counseling relationship in question -- reveals substantial evidence in support of the Board's determination. Moreover, the Board's decision to revoke Appellant's license is neither in excess of its statutory authority, nor arbitrary or capricious, given the facts and applicable law.

¶28 The concurring in part and dissenting in part Opinion states that "the Board must enact administrative rules" which "include . . . Rules setting forth guidelines relating to the appropriateness of the penalty imposed" in order to avoid the imposition of arbitrary and capricious penalties, i.e., penalties imposed "without determining principle." The concurring in part and dissenting in part Opinion states that the Board's decision to revoke Appellant's license was per se arbitrary and capricious because the Board has failed to promulgate, in advance, such guidelines or "objective criteria applicable to the selection of the appropriate penalty from the range of permitted penalties," and states that such "determining criteria" are necessary for the Board to properly select from the range of penalties for particular unprofessional conduct.

¶29 The position articulated in the concurring in part and dissenting in part Opinion is similar to that taken, at least in part, by the trial court in Behavioral Health & Human Services Licensing Board v. Williams, 5 N.E.3d 452 (Ind. Ct. App. 2014). In Williams, the Court of Appeals of Indiana explained as follows:

The Behavioral Health and Human Services Licensing Board [of Indiana] ("Board") revoked a mental health counselor's license when she developed a personal attachment to a patient, continued to see the patient after their professional relationship had ended, and ignored the patient's requests to leave her alone. Upon judicial review, the trial court found substantial evidence supporting the Board's findings and affirmed the revocation. On the licensee's motion to correct error, however, the court changed course. This time, it faulted the manner in which the Board conducted its proceedings, disapproved of the lack of a standard for disciplining licensees, and thus reversed and remanded with instructions to either impose a lesser sanction or hold a new hearing.

Id. at 453-54 (emphasis added). The Williams Court stated, "We conclude the Board afforded the licensee fair proceedings and acted within its authority in imposing the sanction of revocation. Further concluding the trial court impermissibly reweighed the credibility of the witnesses and substituted its judgment for that of the Board, we affirm the revocation." Id. The Williams Court explained: "Upon finding that [the mental health counselor] was subject to discipline, . . . the Board could impose any sanction authorized by Section 25-1-9-9, one of which includes '[p]ermanently revok[ing the] practitioner's license.'" 5 N.E.3d at 459. The Williams Court also stated: "[W]e find nothing in our statutes or caselaw that requires a system of progressive discipline. Indeed, a recent decision of this Court affirmed the revocation of a nursing license even though the licensee had no prior disciplinary incidents in her twenty-two years of practice." Id. at 460 (citation omitted). Finally, while acknowledging that a choice of discipline can nevertheless be attacked on the ground that it is arbitrary or capricious, the Williams Court explained:

An arbitrary and capricious decision is one that is patently unreasonable. A.B. v. State, 949 N.E.2d 1204, 1217 (Ind. 2011). Such a decision is made without consideration of the facts and in total disregard of the circumstances and lacks any basis that might lead a reasonable person to the same conclusion.

Id. at 459-60.

¶30 The concurring in part and dissenting in part Opinion also appears to be at odds with the reasoning of the Supreme Court of North Dakota in Larsen v. Commission on Medical Competency, 585 N.W.2d 801 (N.D. 1998), in which the court stated:

Revocation of license is one of nine available disciplinary actions under N.D.C.C. § 43-17-30.1(1). The statute leaves the choice of disciplinary action within the discretion of the Board "as it may find appropriate." Here, the Board adopted the recommendation of the ALJ revoking Larsen's license. Larsen does not dispute that revocation of his license to practice medicine was one of the sanctions available to the Board. There is nothing in the plain language of the statute or its legislative history to suggest this Court should second-guess a decision clearly within the parameters of the Board's authority.

585 N.W.2d at 809.

¶31 Similarly, in Dresser v. Board of Medical Quality Assurance, 181 Cal. Rptr. 797 (Cal. Ct. App. 1982), the California Court of Appeal determined the Board in question did not abuse its discretion when it revoked a psychologist's license for engaging in sexual relations with his patients. The Dresser Court explained:

The propriety of a penalty imposed by an administrative agency is a matter within its discretion and, absent a manifest abuse thereof, it will not be disturbed upon review by a trial or appellate court. Even if the penalty were to appear to be too harsh according to the court's evaluation, the court is not free to substitute its own discretion for that exercised by the administrative agency. Even were the penalty to appear harsh to us, still we would not be free to substitute our discretion for that of the administrative body. The fact[] that reasonable minds might differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within its discretion.

Id. at 804 (internal quotation marks omitted) (citations omitted). See also Palmer v. Board of Registration in Medicine, 612 N.E.2d 635 (Mass. 1993), in which the Supreme Judicial Court of Massachusetts determined revocation was within the Board's discretion and affirmed the decision of the Board to revoke a psychiatrist's license with leave to petition for reinstatement after two years. The Palmer Court cited to Keigan v. Board of Registration in Medicine, 506 N.E.2d 866 (Mass. 1987), in which the Supreme Judicial Court of Massachusetts stated:

It is well settled that in reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter; nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh.

Id. at 869 (internal quotation marks omitted) (citation omitted). The Palmer Court also cited to Levy v. Board of Registration & Discipline in Medicine, 392 N.E.2d 1036 (Mass. 1979), in which the Supreme Judicial Court of Massachusetts stated:

The revocation of a physician's license . . . is designed not to punish the physician for his crimes but to protect the public health, welfare, and safety. The revocation or suspension of a license is not penal, but rather, the Legislature has provided for such to protect the life, health and welfare of the people at large . . . .

Id. at 1041 (internal quotation marks omitted) (citations omitted). Cf. Robinson v. United States, 718 F.2d 336, 339 (10th Cir. 1983) ("[W]e must be mindful that once the agency determines that a violation has been committed, the sanctions to be imposed are a matter of agency policy and discretion."); State ex rel. Okla. Bar Ass'n v. Denton, 1979 OK 116, ¶ 6, 598 P.2d 663 ("In Oklahoma, the primary purpose of discipline is not punishment, but purification of the bar and protection of the courts and the public generally"; it also "acts as a restraining influence on other attorneys." (footnote omitted)).

¶32 As indicated above, 59 O.S. Supp. 2015 § 1905(B) of the LPCA provides that "[t]he Board shall have the authority to: . . . 4. Issue, renew, revoke, deny, suspend and place on probation licenses to practice professional counseling," and 59 O.S. Supp. 2015 § 1912(A) of the LPCA provides that "[the Board] may deny, revoke, suspend or place on probation any license or specialty designation issued pursuant to the provisions of the [LPCA] to a licensed professional counselor, if the person has: . . . 5. Engaged in unprofessional conduct as defined by the rules established by the Board[.]" Pertinent to this case, the Board has promulgated § 86:11-3-3 of the Oklahoma Administrative Code which sets forth Rules of Professional Conduct for LPCs related to "Client welfare." Section 86:11-3-3(e) provides, in pertinent part, that "LPCs shall not engage in any activity that is or may be sexual in nature with a former client for at least five (5) years after the termination of the counseling relationship." The position set forth in the concurring in part and dissenting in part Opinion would appear to limit the Board's discretion and authority in a manner inconsistent with the plain language, quoted above, of the LPCA. "Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute's plain language." State ex rel. Okla. State Dep't of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875 (citation omitted).

When a court is called on to interpret a statute, the court has no authority to rewrite the enactment merely because it does not comport with the court's view of prudent public policy. Also, the wisdom of choices made within the Legislature's law-making sphere are not our concern, because those choices -- absent constitutional or other recognized infirmity -- rightly lie within the legislative domain.

Head v. McCracken, 2004 OK 84, ¶ 13, 102 P.3d 670 (citations omitted).

¶33 In § 1912 of the LPCA, the Legislature has deliberately granted broad powers to the Board to choose either to "deny, revoke, suspend or place on probation any license" upon determining an LPC has, among other things, engaged in unprofessional conduct as defined by the Board. Clearly, revocation of a license is one of the available disciplinary actions under the LPCA, which states that the Board "shall have the authority to . . . revoke . . . licenses to practice professional counseling[.]" The statute also leaves the choice of disciplinary action within the discretion of the Board, stating that the Board "may . . . revoke . . . any license" for the reasons listed in § 1912. As stated by the Larsen Court, quoted above, "There is nothing in the plain language of the statute . . . to suggest this Court should second-guess a decision clearly within the parameters of the Board's authority."11

 

¶34 The Board's choice of a remedy will nevertheless be reversed if it is arbitrary or capricious. However, we disagree that the Board must promulgate, in advance, criteria and guidelines more limiting than, and therefore inconsistent with, the broad language of § 1912 pertaining to the choice of a sanction. Such criteria or guidelines would prevent the Board from exercising the wide discretion granted to it by the Legislature in the selection of sanctions appropriate for the unique facts and circumstances which may arise -- sanctions appropriate not merely for the punishment of particular LPCs, but also for the integrity of the license in question and, perhaps most importantly, for the protection of that portion of the public requiring mental health services.

 

¶35 It is nevertheless this Court's view that the revocation of Appellant's license is harsh. It is worth noting, however, that OAC § 86:11-7-6(a) provides that Appellant may re-apply for a license after a period of five years following the revocation.12 Also, this Court is unable to simply substitute its discretion for that of the Board, especially when the Board is acting in an area of expertise which it supervises.13 While the Board's choice of penalty in this case has given this Court pause, we conclude it is not without reason and justification, and we are unable to conclude it is arbitrary or capricious. As stated above, one reasonable interpretation of portions of the former client's testimony reveal he is an already psychologically vulnerable individual who has been negatively impacted by the circumstances. Appellant chose not to testify. The Board, in revoking Appellant's license, was not simply penalizing Appellant, but was fulfilling its important roles, however strictly, of protecting the public and the integrity of the license in question.

¶36 For all these reasons, we must reject Appellant's argument attacking the Board's decision to revoke her license.

CONCLUSION

¶37 Based on our review, we affirm the Board's order.

¶38 AFFIRMED.

WISEMAN, V.C.J., concurs, and RAPP, J., concurs in part and dissents in part.

FOOTNOTES

1 Ms. Glover also filed a motion to stay enforcement of the Board's order, and this motion, which was not opposed by the Board, was granted by the district court in an order filed in December 2015.

2 Title 59 O.S. 2011 & Supp. 2018 §§ 1901-1920.

3 Title 75 O.S. 2011 & Supp. 2016 §§ 250-323.

4 Appellant is referring to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, which mandates that no state "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, 1. We note, as the Oklahoma Supreme Court has noted, that "[a]lthough the Oklahoma Constitution does not contain an equal protection provision like or similar to that found in its federal counterpart, [the Oklahoma Supreme Court] has identified a functional equivalent of that clause in the anti-discrimination component of our state constitution's due process section[.]" Gladstone v. Bartlesville Indep. Sch. Dist. No. 30 (I-30), 2003 OK 30, ¶ 6 n.15, 66 P.3d 442.

Of course, "[t]he Oklahoma Constitution does not merely project a mirror image of the federal constitution." However, the minimum level of protection . . . is determined by federal law: "The state of Oklahoma in the exercise of its sovereign power may provide more expansive individual liberties than those conferred by the United States Constitution -- it is only when state law provides less protection that the question must be determined by federal law."

Deal v. Brooks, 2016 OK CIV APP 81, ¶ 28 n.7, 389 P.3d 375 (released for publication by order of the Oklahoma Supreme Court) (citations omitted). However, Appellant has not attempted to fashion an argument under the Oklahoma Constitution.

5 According to the affidavit of Thom Balmer, PhD, an Associate Professor in the Psychology Department of Cameron University and a member of the Board who has "served on the Board since the inception of the Board,"

The Board's rules establish a five (5) year ban on sexual relationships between LPCs and former clients and a two (2) year ban on sexual relationships between LMFTs and former clients. The rules in place mirror [a rule of] the 2005 and 2015 American Counseling Association . . . Code of Ethics . . . and [a rule of] the 2012 American Association for Marriage and Family Therapists [AAMFT] . . . .

Balmer further states in his affidavit that, "[i]n 2015, the AAMFT amended its rule banning sexual relationships between LMFTs and former clients from a 2-year ban to a ban in perpetuity. As a result, the Board will consider at an upcoming meeting a change in its rules to increase the ban for LMFTs."

6 Indeed, LPCs are not a suspect class entitled to heightened scrutiny. As noted by the Oklahoma Supreme Court, "a suspect class [is] one that is saddled with such disabilities, or subjected to such history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Gladstone, 2003 OK 30, ¶ 9 n.23 (internal quotation marks omitted) (citation omitted). Cf. Nat'l Ass'n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) ("[P]sychoanalysts are not a suspect class entitled to heightened scrutiny[.]"). Nor is a fundamental right implicated in the restriction on sexual relationships with former clients. "It is true that the Fourteenth Amendment protects some personal relationships, such as those that attend the creation and sustenance of a family and other highly personal relationships." Id. at 1050 (internal quotation marks omitted) (citation omitted). However, as explained by the Ninth Circuit in a context comparable to the present case,

The relationship between a client and a psychoanalyst lasts "only as long as the client is willing to pay the fee." [IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1193 (9th Cir. 1988).] Even if analysts and clients meet regularly and clients reveal secrets and emotional thoughts to their analysts, these relationships simply do not rise to the level of a fundamental right. See Zablocki v. Redhail, 434 U.S. 374, 383-86 . . . (1978) (right to marry); Moore v. City of East Cleveland, 431 U.S. 494, 503-06 . . . (1977) (right to live with family); Griswold v. Connecticut, 381 U.S. 479, 482-86 . . . (1965) (right to marital privacy); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 . . . (1925) (right of parents to direct children's upbringing and education). "These are not the ties that 'have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.'" IDK, 836 F.2d at 1193 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 618-19 . . . (1984)).

Nat'l Ass'n for Advancement of Psychoanalysis, 228 F.3d at 1050. Once again, Appellant does not argue otherwise.

7 (Emphasis added.)

8 Appellant admits that "[t]he rule against sexual relationships between a client and a counselor is designed to protect the client from harm that can result from being taken advantage of or abused in a counselor/client relationship when the client is vulnerable."

9 "Pursuant to the Administrative Procedures Act . . . , the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law." Estes v. ConocoPhillips Co., 2008 OK 21, ¶ 10, 184 P.3d 518 (footnotes omitted). The LPCA states, inter alia, as follows: "The State Board of Behavioral Health Licensure shall: 1. Prescribe, adopt and promulgate rules to implement and enforce the provisions of the [LPCA] . . . ." 59 O.S. Supp. 2015 § 1905(A).

10 The Oklahoma Supreme Court similarly stated in City of Hugo v. State ex rel. Public Employees Relations Board, 1994 OK 134, 886 P.2d 485, as follows:

In determining whether an administrative agency's findings and conclusions are supported by substantial evidence, the reviewing court will consider all the evidence including that which fairly detracts from its weight. However, great weight is accorded the expertise of an administrative agency. On review, a presumption of validity attaches to the exercise of expertise. An appellate court may not substitute its judgment for that of an agency, particularly in the area of expertise which the agency supervises.

Id. ¶ 10 (footnotes omitted).

11 The concurring in part and dissenting in part Opinion cites, inter alia, Matter of Bessemer Mountain, 856 P.2d 450 (Wyo. 1993), in which the Supreme Court of Wyoming stated: "In the absence of the appropriate criteria or factors adopted by administrative rulemaking, classifications made on an ad hoc basis are inherently arbitrary and capricious." Id. at 451 (footnote omitted). However, the issue presented in that case was whether the state agency in question could, under the state statute in question, "classify lands within the state [of Wyoming] as 'very rare or uncommon' without adopting by regulation the criteria or factors that will establish a standard for such a classification." Id. The Court described the phrase "very rare or uncommon" as "too amorphous to permit judicial review of the action of the [agency in question], as required by statute." Id. (emphasis added). In other words, the issue presented was one of statutory construction. The court explained: "[T]he intent of the legislature was to invoke the expertise of the [state agency] to establish by regulation the factors and criteria that will serve as a standard for making the classification of 'very rare or uncommon.'" Id. at 454. The court was careful to distinguish statutory language that "particularly provides for the promulgation of rules and regulations," from statutory language that "anticipate[s] an ad hoc approach[.]" Id. at 455. The court further explained that a

clear statutory direction is enforceable by an agency in accordance with its plain meaning without promulgation of the rule. [However,] [i]n this instance, there does not seem to be any plain meaning without promulgation of a rule that sets the statutory standards for arriving at a classification of lands as "very rare or uncommon." In such an instance, it is appropriate to require the implementation of standards pursuant to the rulemaking power, particularly when that authority is expressly and explicitly delegated in the statute.

Id. at 455 (internal quotation marks omitted) (citation omitted). The analogy to be drawn between Matter of Bessemer Mountain and the present case is that the Oklahoma Legislature clearly intended that the Board promulgate rules defining "unprofessional conduct." See 59 O.S. Supp. 2015 § 1912(A)(5) ("[e]ngaged in unprofessional conduct as defined by the rules established by the Board"). However, the LPCA also plainly grants the Board the discretion to choose to either "deny, revoke, suspend or place on probation any license" once such a violation has been found to have occurred (so long as the penalty is not imposed arbitrarily or capriciously).

12 "No re-application for a revoked license will be considered for a period of 5 years following the revocation." OAC § 86:11-7-6(a).

13 For example, this Court is not privy to any information likely available to experts in this area -- such as statistics or studies on the possible negative outcomes of LPC and former client sexual relationships -- which might render a layman's impression inaccurate.

RAPP, J., concurring in part and dissenting in part:

¶ 1 I respectfully concur in part and dissent, in part. There are two issues in this case.

¶2 The first issue is whether Glover violated the Rules of Professional Practice. I recognize that the Board has the statutory authority to implement and enforce the Oklahoma Licensed Professional Counselors Act (OLPCA). 59 O.S. Supp. 2018, § 1905(A)(1). This authority includes the authority and direction to establish Rules of Professional Conduct. 59 O.S. Supp. 2018, § 1905(A)(2).

¶3 Next, I recognize that the Board has, by administrative rule, promulgated Rules of Professional Conduct. Okla. Admin. Code, § 86:10-3 (2016). Included in those Rules is the Rule prohibiting sexual contact with former clients for a five year period after final treatment. Okla. Admin. Code, § 86:3-3(e) (2016). Moreover, Glover has admitted her conduct, initiated by her former client, and that her conduct violated this Rule. Therefore, the Majority Opinion correctly affirmed the Board's ruling that Glover violated the Rule of Professional Conduct relating to sexual contact with former clients.

¶4 The second issue concerns whether the Board has undertaken the requisite rulemaking before it may impose the license termination penalty and, if so, whether that penalty is appropriate here. In this regard, the issue is not whether license revocation is within the range of authorized penalties -- it is by statute. 59 O.S. Supp. 2018, § 1912(A).

¶5 The indisputable fact here, and overlooked by the Majority, is that the Board has failed to take administrative action to implement its authority to impose license penalties and to establish criteria for imposition of license penalties. The Legislature's delegation of authority to enforce licensure standards includes a mandate to "promulgate rules governing any licensure action." 59 O.S. Supp. 2018, § 1913.1(A).1 Therefore, I dissent to that part of the Opinion which affirms the penalty of termination of Glover's professional license.

¶6 I would have this Court vacate and reverse the imposition of the license termination penalty. This is based upon the ground that the Board has failed completely to promulgate any Rule for implementation of enforcement of the OLPCA with respect to action which affects the professional license. This failure has three consequences.

¶7 First, the Board is precluded from imposing a penalty affecting the license.

¶8 In Oklahoma Water Resources Bd. v. Texas County Irrigation and Water Resources Ass'n, Inc., 1984 OK 96, ¶ 24, 711 P.2d 38, 47-48, the Court ruled that the Water Resources Board could not issue a permanent ground water permit until the Board made yield determination rules as required by statute. Oklahoma Water Resources Bd., 1984 OK 96 ¶ 23, 711 P.2d at 47. "Further, the Board before issuing permits for use of fresh ground water for tertiary recovery should do so only with the benefit of rules and regulations tailored to focus inquiry upon the pertinent issues peculiar to the tertiary process." Id. ¶ 23, at 47.

¶9 Driver's license revocation decisions provide an additional example. Sample v. State ex rel. Dep't of Public Safety, 2016 OK CIV APP 62, 382 P.3d 505 (The breath test for alcohol must be based upon approved administrative rules). A failure to adopt rules governing hearings resulted in the agency having no authority to conduct hearings. Adams v. Professional Practices Comm'n, 1974 OK 88, 524 P.2d 932.

¶10 Second, the Board's termination of Glover's license is per se arbitrary and capricious for lack of determining criteria.

¶11 The statute involved here permits a range of license disciplinary actions from probation to termination. Clearly, this provision brings into play factors for the Board's consideration and decision. These factors range from severity and seriousness of the violation to mitigation. However, the Board has nothing in its set of Rules providing objective criteria applicable to the selection of the appropriate penalty from the range of permitted penalties. This is the case even though the Legislature directed the Board, in mandatory terms, to promulgate Rules. 59 O.S. Supp. 2018, §§ 1905, 1913.1.

¶12 The Wyoming Supreme Court has succinctly stated the law. "In the absence of the appropriate criteria or factors adopted by administrative rulemaking, classifications made on an ad hoc basis are inherently arbitrary and capricious." In re Bessemer Mt., 856 P.2d 450, 451 (Wyo. 1993). In addition, the Texas Court of Civil Appeals stated:

Whether an action is arbitrary focuses on whether an agency had a rational basis for its decision. Capriciousness concerns whether the agency's action was whimsical, impulsive, or unpredictable. To meet basic standards of due process and to avoid being arbitrary, unreasonable, or capricious, an agency's decision must be made using some[thing other] than mere surmise, guesswork, or "gut feeling." An agency must not act in a totally subjective manner without any guidelines or criteria.

Stacy v. Dep't of Social Services, Division of Medical Services, 147 S.W.3d 846, 852 (Tex. App. 2004) (emphasis added) (quoting Missouri Nat'l Educ. Ass'n v. Missouri State Bd. of Educ., 34 S.W.3d 266, 281 (Mo. Ct. App. 2000)).

¶13 Oklahoma decisions have used the phrase "without determining principle" when defining arbitrary and capricious. Oklahoma Employment Security Comm'n v. Oklahoma Merit Protection Comm'n, 1995 OK CIV APP 76, ¶ 6, 900 P.2d 470, 473 ("An administrative agency's determination is arbitrary and capricious when it is 'willful and unreasonable without consideration or in disregard of facts or without determining principle, or unreasonable . . . in disregard of facts and circumstances.'")(citation omitted).

¶14 In Glover's case, the Board had no determining or objective principle to guide its decision regarding the appropriate penalty.

¶15 Third, due to the absence of administrative rules and objective criteria, the reviewing Court is unable to review the penalty decision to ascertain whether the decision is supported by the evidence and is not contrary to law.

¶16 Administrative agencies are not vested with personal or arbitrary power. The agencies are subject to the control of the courts when it appears they have acted arbitrarily. City of Wewoka v. Rose Lawn Dairy, 1949 OK 279, ¶¶ 11-13, 212 P.2d 1056, 1058. However, when, as here, an agency acts in the absence of legislatively required administrative rules, or without criteria and determining principle, the reviewing court cannot determine whether the agency decision is supported by evidence or contrary to law. A perfect analogy is found in cases concerning awards of attorney fees where the fee must be documented and the trial court's finding is set out with specificity to enable the reviewing court to review the reasonableness of the fee awarded. Burk v. City of Oklahoma City, 1979 OK 115, ¶ 22, 598 P.2d 659, 663. Here, the absence of any rules, determining principle, or objective criteria makes it impossible to conduct a meaningful review of the Board's decision to terminate Glover's license.

THE ANALYSIS OF THE DISSENT IN THE MAJORITY OPINION

¶17 The Majority Opinion apparently concludes that the Board may act in a totally subjective manner without any objective guidelines or criteria governing its selection of a penalty so long as the penalty imposed is within the authorized range of penalties. First, and foremost, this overlooks the mandate of the statute to enact rules. Also, in my view, that conclusion is contrary to controlling, applicable Oklahoma Supreme Court decisions and decisions from other jurisdictions cited above, in addition to the rulemaking mandate of 59 O.S. Supp. 2018, § 1913.1(A).

¶18 The Majority Opinion cites Behavioral Health and Human Services Licensing Board v. Williams, 5 N.E.3d 452 (Ind. Ct. App. 2014). There, the trial court had reversed the revocation. One reason assigned by the trial court for the ruling was that the Indiana Board had lacked a standard for determining the penalty. The Williams decision rejected that reasoning as contrary to the "general bar against probing the mental processes of administrative decisionmakers in their private deliberations." Williams, 5 N.E.3d at 462. This rationale is nothing more than saying that the appellate court will not retry the case and that is the principle holding in the case.

¶19 The foregoing assessment is confirmed by the Williams Court's citation to Med. Licensing Bd. of Ind. v. Provisor, 669 N.E.2d 406, 410 (Ind. 1996). The Provisor case is a review and application of the principle that an appellate court does not retry administrative proceedings. The principle is embodied in the Oklahoma Administrative Code. 75 O.S.2011, § 322.

¶20 Next, the Williams Court recognized that the Indiana Board does not have "unbridled discretion" and it is statutorily required to be consistent in imposing penalties. Significantly, the Williams Court did not reference any Indiana Code provision similar to Oklahoma's rulemaking mandate set out in Section 1913.1(A).2 Thus, the facts and ruling in Williams pertaining to the administrative proceeding there are materially different from the facts in Glover's situation.

¶21 The Majority Opinion next cites Larsen v. Commission of Medical Competency, 585 N.W.2d 801 (N.D. 1998). First, examination of this case shows that it is also a case which is fundamentally a restatement and application of the principle that the appellate court does not retry the case.

¶22 The North Dakota statute provides for a range of penalties and for the North Dakota Board to impose the one it finds appropriate. The facts there show that the Board did discuss and apply criteria for its action. Larsen, 585 N.W.2d at 807-08. The appellate issue was whether the appellate court would substitute its judgment.3 Thus, the North Dakota Board did employ criteria on the record to support its decision regarding an appropriate penalty and the appellate court did not retry the case.4

 

¶23 The Massachusetts cases cited by the Majority are likewise cases standing for the general rule that the appellate court does not retry the case decided by the agency. See, for example, Levy v. Board of Registration and Discipline in Medicine, 392 N.E.2d 1036, 1042 (Mass. 1979) (Reviewing court does not substitute its judgment even though it might disagree with the agency outcome).

 

¶24 The Majority Opinion's critique of this dissent does not misstate any legal principles. I do not advocate substitution of the judgment of the Reviewing Court or a retrial of the cause. However, I respectfully state that those legal principles depend upon the premise that the agency has in place determining criteria and administrative rules for the exercise of its discretion regarding imposition of an appropriate penalty.

¶25 Therefore, I emphasize the following points:

1. The Oklahoma statute mandates that the Board promulgate rules to implement the imposition of penalties. The Board has not done so. 2. This case is not about whether the Board has discretion to select from a range of penalties. This case is about having determining criteria so that the agency's decision avoids unreasonable harm. Criteria and determining principles serve to make an agency's decision "some[thing other] than mere surmise, guesswork, or 'gut feeling'" or, in other words, not capricious. 3. The Majority Opinion views the penalty imposed as "harsh." The Majority Opinion correctly continues with the observation that this Court will not substitute its judgment for that of the Board. The Majority Opinion continues with an apparent justification for the license revocation. In doing so, the Majority Opinion actually "retries" this part of the case by providing its judgment as to the appropriateness of the license revocation penalty. However, on this point, the issue is not whether this Court will retry the matter, but whether this Court can perform its judicial role of review in the absence of a record showing that the agency acted to impose the license revocation penalty in accord with published rules, criteria and determining principle. As the matter stands, this Court cannot perform the judicial review.

CONCLUSION

¶26 This is a unique case, both from a legal and a human viewpoint. The Record establishes that Glover violated a Rule of Professional Conduct. The law authorizes the Board to impose a penalty from a range of penalties. The Board selected license termination, a penalty characterized by the Majority Opinion as "harsh". I agree. However, the Record and the absence of the required administrative rules makes it impossible to ascertain what, if any, criteria the Board used to decide upon the most severe penalty.

¶27 The Record also shows that there were extenuating circumstances leading to Glover's violation of the Rule. At the time of the violation, Glover was in the process of a divorce with its attendant emotions and concerns for herself and her children. Glover experienced periods of stress and emotional instability. Also, during this period, Glover accidently met her former client at a hardware store. They met approximately two plus years after the client relationship terminated.

¶28 For some unknown reason, the client decided to pursue Glover. This ultimately resulted in a relationship and sexual contact. They ultimately parted company, but not without emotional reaction by both parties. In this light, it could be said that both Glover and the client were victims of their accidental meeting at the hardware store.

¶29 Cicero's statement, "The foundations of law are such that no man shall suffer a wrong," serves as an introduction to the premise of this dissent. The foundation has been laid by the enactment of OLPCA. However, this statutory foundation fails, like an unsupported glass structure that collapses under pressure. The statutory structure setting up a licensing Board and directing that provision be made for professional conduct with penalties for violations collapses when, as the Board responsible for establishing rules to support the structure, fails to act as directed.

¶30 The Legislature has authorized the Board to "revoke, deny, suspend and place on probation" a license pursuant to the OLPCA. 59 O.S. Supp. 2018, § 1905(B)(4). Thus, this case is not about whether the Board has authority to assess a specific penalty from a range of penalties. However, the Board must enact administrative rules governing how it carries out its authority before it can impose a penalty. 59 O.S. Supp. 2018, § 1905(A) (The Board "shall . . . (1) prescribe, adopt and promulgate rules to implement and enforce" the OLPCA (emphasis added)). Section 1913.1 directs that the Board "shall promulgate rules governing action to be taken pursuant to" the OLPCA. Such Rules must include not only procedural Rules, but also Rules setting forth guidelines relating to the appropriateness of the penalty imposed.

¶31 The Board has not promulgated Rules to implement the license actions provision of enforcement with respect to criteria for the appropriateness of the imposition of a penalty affecting the license.5 The Board's failure to promulgate applicable Rules has the consequences stated above.

¶32 Thus, the issue here is not whether the Board has the authority to revoke a license. The issue is whether the Board has taken the proper and necessary administrative steps to enable it to exercise this authority and to provide a set of criteria to guide its selection of a penalty from the authorized range of penalties.6 Promulgation of such Rules will also provide a basis for judicial review when the Board does exercise this authority.

¶33 The Board has not promulgated appropriate Rules. Therefore, its decision to terminate Glover's license is arbitrary and capricious.

¶34 I would have this Court hold that the Board has not taken the necessary and proper steps that it must do before exercising the authority given by the Legislature to appropriately select from a range of penalties regarding a person's professional license. I would further have this Court vacate and reverse the termination of Glover's license and reinstate it immediately. Finally, in recognition of the admitted violation of the Rules of Professional Conduct, I would have this Court remand the matter to the Board for consideration of an Administrative Penalty only.

FOOTNOTES

1 This statute provides:

A. The State Board of Behavioral Health Licensure shall promulgate rules governing any licensure action to be taken pursuant to the Licensed Professional Counselors Act which shall be consistent with the requirements of notice and hearing under the Administrative Procedures Act. No action shall be taken without prior notice unless the Board determines that there exists a threat to the health and safety of the residents of Oklahoma. (Emphasis added.)

2 See n.1.

3 "There is nothing in the plain language of the statute or its legislative history to suggest this Court should second-guess a decision clearly within the parameters of the Board's authority. Therefore, because this sanction is authorized by law and justified in fact, we hold the Board's decision to revoke Larsen's license was not an abuse of discretion." Larsen, 585 N.W.2d at 809 (emphasis added).

4 Moreover, the Larsen case supports the "Third Consequence" listed above. The administrative agency's findings "must be adequate to enable a reviewing court to ascertain the basis of the agency's decision." Larsen, 585 N.W.2d at 805.

5 The Board's enforcement authority includes imposition of an "Administrative Penalty." 59 O.S. Supp. 2018, § 1913.1(B). The penalty is essentially a fine. The Board has enacted an administrative rule for imposition of the Administrative Penalty. Okla. Admin. Code § 86:10-29-14 (2016). This Rule is not under review in this appeal.

6 The Board has a Rule stating that, at the close of the hearing, the "Board shall recommend the most appropriate penalty" from the list permitted by statute. Nevertheless, the Rule provides no criteria for determining factors for selection of an "appropriate penalty." Okla. Admin. Code. § 86:10-29-7 (2016). In the absence of criteria, the Board is unable to recommend an appropriate penalty in a reasoned, objective manner. The purpose of this Rule is to direct the use of an Individual Proceeding.