792 April 19, 2017 No. 169 IN THE COURT OF APPEALS OF THE STATE OF OREGON

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1 792 April 19, 2017 No Wolff v. Board of Psychologist Examiners April 28419, Or 2017 App IN THE COURT OF APPEALS OF THE STATE OF OREGON Christian WOLFF, Petitioner, v. BOARD OF PSYCHOLOGIST EXAMINERS, Respondent. Board of Psychologist Examiners ; A Argued and submitted October 7, Bear Wilner-Nugent argued the cause and filed the brief for petitioner. Keith Kutler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Carolyn Alexander, Assistant Attorney General. Before Ortega, Presiding Judge, and Lagesen, Judge, and Wilson, Senior Judge. ORTEGA, P. J. Reversed and remanded. Case summary: Petitioner requests judicial review of a final order of the Board of Psychologist Examiners that suspended petitioner s psychologist associate s license and imposed a civil penalty of $10,000. The board notified petitioner that it intended to discipline him for listing the abbreviation PsyA after his name in various public forums, using the phrase Master of Arts Clinical Psychology to describe his degree in at least one of those forums, and indicating that he has been practicing psychology for 15 years on at least one website. In the board s view, that conduct was immoral or unprofessional conduct because it could mislead the public into believing that petitioner had a doctoral degree in psychology and was a licensed psychologist. The board also alleged that petitioner s conduct violated a statutory prohibition against holding oneself out to be a psychologist without first obtaining a license. An administrative law judge (ALJ) agreed with the board and issued a proposed order that granted summary determination to the board. The board rejected petitioner s exceptions to the ALJ s order and issued a final order that adopted the ALJ s proposed order. On judicial review, petitioner argues that the board erred because the summary determination record did not establish that his conduct would in fact have misled or deceived the public into believing that he had a doctoral degree in psychology and was a licensed psychologist. Held: Summary determination is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, there

2 Cite as 284 Or App 792 (2017) 793 is no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought and the party filing the motion is entitled to a favorable ruling as a matter of law. Viewing the summary determination record in the light most favorable to petitioner, a reasonable factfinder, considering the totality of the circumstances, could find that petitioner s conduct would not have misled or deceived the public into believing that petitioner had a doctorate in psychology and was a licensed psychologist. Because the record on summary determination was not sufficient to eliminate any issue of material fact as to whether petitioner s conduct was misleading or deceiving, summary determination was inappropriate. Reversed and remanded.

3 794 Wolff v. Board of Psychologist Examiners ORTEGA, P. J. Petitioner requests judicial review of the Board of Psychologist Examiners final order that suspended petitioner s license to practice as a psychologist associate and assessed a $10,000 civil penalty. The board notified petitioner that it intended to discipline him for (1) listing the abbreviation PsyA after his name on letterhead, business cards, signature blocks, and websites, (2) using the phrase Master of Arts Clinical Psychology to describe his degree in at least one of those forums, and (3) indicating that he has been practicing psychology for 15 years on at least one website. An administrative law judge (ALJ) issued a proposed order that granted summary determination to the board, concluding that petitioner engaged in immoral or unprofessional conduct under ORS (2)(d) 1 and violated the prohibition in ORS (1)(b) against representing oneself to be a psychologist without first being licensed under ORS to After rejecting petitioner s exceptions to the ALJ s order, the board issued a final order that adopted the ALJ s proposed order with minor modifications, concluding that petitioner was engaged in immoral or unprofessional conduct because he created a serious risk to public health or safety by misleading and deceiving the public about his 1 ORS (2) provides, in part: The board may impose a sanction listed in subsection (1) of this section against any psychologist or psychologist associate or applicant, or, if applicable, any unlicensed person found in violation of ORS to , when, in the judgment of the board, the person: ***** (d) Is guilty of immoral or unprofessional conduct or of gross negligence in the practice of psychology, including but not limited to: (A) Any conduct or practice contrary to recognized standard of ethics of the psychological profession or any conduct or practice that constitutes a danger to the health or safety of a patient or the public, or any conduct, practice or condition that adversely affects a psychologist or psychologist associate s ability to practice psychology safely and skillfully. 2 ORS (2) provides that to represent oneself to be a psychologist means to use any title or description of services incorporating the words psychology, psychological, psychotherapy or psychologist, or to offer or render to individuals or to groups of individuals services included in the practice of psychology.

4 Cite as 284 Or App 792 (2017) 795 academic degree and credentials. 3 See ORS (2)(d)(A) (conduct that is a danger to the health or safety of the public is immoral or unprofessional conduct ). Accordingly, the board suspended petitioner s psychologist associate license for one year 4 and, because it concluded that petitioner s conduct was deliberate and with knowledge, assessed a $10,000 civil penalty. On judicial review, petitioner argues that the ALJ committed legal error by concluding that the conduct that he admitted to violated ORS (1)(b) and ORS (2)(d). He argues that his use of PsyA was not misleading to the public because he also included phrases such as psychologist associate, licensed psychologist associate or Portland psychologist associate immediately following his use of PsyA. Alternatively, he asserts that, even assuming that his use of PsyA was a falsification of his academic degree or professional credentials, the board failed to adduce substantial evidence to connect such a falsification with any public detriment. Similarly, he asserts that his use of Master of Arts Clinical Psychology and practicing psychology were not misleading in the context in which he used those words and did not constitute a danger to the health or safety of the public. As for the ALJ s conclusion that he held himself out as a licensed psychologist, he asserts that the ALJ erred because a psychologist associate is authorized by the applicable statutes to practice psychology at least to a limited extent. Finally, petitioner asserts that, even if his conduct merited discipline, the $10,000 penalty should be remanded for reconsideration because whether petitioner engaged in willful or reckless disregard for the law was a factual issue that could not be resolved on summary determination. In response, the board first asserts that petitioner failed to preserve the arguments that he makes on appeal. 3 Although the board s final order is the order that we are charged with reviewing on judicial review, because the orders of the board and the ALJ are substantively the same, for ease of reference, we generally refer to the ALJ s order throughout this opinion. 4 The board stayed all but 30 days of the suspension provided that petitioner submits a written request to the Board to stay the suspension and provides persuasive evidence that he had removed the words clinical psychology or practicing psychology and the initials PsyA from all materials.

5 796 Wolff v. Board of Psychologist Examiners On the merits, the board argues that, based on the totality of petitioner s undisputed conduct and the summary determination record, the ALJ permissibly concluded that petitioner s conduct would mislead the public into thinking that petitioner had a doctoral degree in psychology and was a licensed psychologist, and thus, it represented a risk to the public health and safety. The board also asserts that the relevant statutes unambiguously state that only a doctoral level psychologist is licensed to practice psychology, so petitioner s assertions that he has been practicing psychology for 15 years violated ORS (1)(b). Ultimately, we conclude that genuine issues of material fact remained that precluded a ruling for the board on summary determination. Thus, the ALJ erred by granting summary determination to the board, and we reverse and remand the board s final order for further proceedings. We begin with the relevant undisputed background and procedural facts. Petitioner earned a Master of Arts degree in psychology. His transcript indicated that he majored in psychology with an emphasis in clinical psychology. He is licensed by the board as a psychologist associate under ORS and, pursuant to ORS (3), received approval from the board to function without immediate supervision. Psychologist associate licenses are issued to applicants who meet certain statutory requirements, possess a master s degree in psychology from an approved program, and are deemed competent to perform certain functions within the practice of psychology under the periodic direct supervision of a psychologist licensed in Oregon, unless they receive approval to practice without such supervision, as petitioner was. ORS (1), (3). The functions within the practice of psychology that a psychologist associate may perform may include but are not restricted to administering tests of mental abilities, conducting personality assessments and counseling, including educational and vocational planning. ORS (1). In May 2013, the board issued a notice to petitioner that it intended to impose a civil penalty of $5,000 against him for violating ORS (2)(d), based on allegations that petitioner placed PsyA followed by the words

6 Cite as 284 Or App 792 (2017) 797 Licensed Psychologist Associate behind his name on letterhead, business cards, signature block, and websites available to the public. The board s notice indicated that PsyA was not a recognized abbreviation in the field of psychology, either as an academic degree or professional license designation, and asserted that use of that abbreviation constituted statements that are false, deceptive or fraudulent regarding [petitioner s] academic degree. Accordingly, the board alleged that petitioner s conduct constituted immoral or unprofessional conduct under ORS (2)(d) and violated an ethical standard adopted by the board that prohibited false or deceptive statements. See OAR (1) (adopting the ethical principles and code of conduct of the American Psychological Association). Subsequently, the board amended its notice to allege that petitioner s use of the phrase Master of Arts Clinical Psychology and references to practicing psychology on letterhead and websites also violated ORS (2)(d) because that conduct constituted false, deceptive or fraudulent statement[s] regarding petitioner s academic degree and credentials. 5 In addition, the board alleged that petitioner s conduct violated ORS (1)(b), which prohibits representing oneself as a psychologist without first obtaining a license. The board s amended notice proposed suspending petitioner s psychologist associate license for one year and imposing a $10,000 civil penalty. Petitioner requested a contested case hearing and the board referred the case to an ALJ with the Office of Administrative Hearings. 5 The board specifically cited to 14 websites that it asserted provided examples of petitioner s conduct. The administrative record does not contain the full text of any of those websites. Instead, the board simply provided the Uniform Resource Locators (URLs) for the websites and quoted text from those websites that the board found objectionable. The following quoted text from the board s notice represents the various ways that petitioner listed his degree, license, and credentials on those websites: Christian Wolff, Psy.A, Portland Psychologist Associate Psychotherapist & Counselor Christian Wolff, MS, Psy.A, Licensed Psychologist Associate, Counseling & Psychotherapy in Portland, Oregon Christian Wolff, Psy.A, Psychologist Associate Christian Wolff, MA, Psy.A * ** Master of Arts Clinical Psychology Christian Wolff, Psy.A, Portland Psychologist Associate: Counseling & Psychotherapy in NW Portland.

7 798 Wolff v. Board of Psychologist Examiners Petitioner answered the board s notices by admitting that he used the abbreviation PsyA to stand for psychologist associate in various publicly available forums, but noting that he never did so without also spelling out some variant of psychologist associate. He also admitted to using Master of Arts Clinical Psychology to describe his degree, but argued that he did so because his master s degree program emphasized clinical psychology. As for his statement that he has been practicing psychology for 15 years, he asserted that ORS chapter 675 authorizes psychologist associates to perform certain functions within the practice of psychology, so his use of that phrase was not false, deceptive, or fraudulent. In short, he admitted to most of the conduct alleged by the board, but denied that that conduct constituted false, deceptive, or fraudulent statements that would harm the public, or amounted to representing oneself to be a psychologist even though he was not a licensed psychologist. Subsequently, petitioner and the board moved for summary determination under OAR , which provides for an administrative summary determination proceeding that is akin to a trial court summary judgment proceeding under ORCP 47. Lucke v. DPSST, 247 Or App 630, 633, 270 P3d 251 (2012). In that proceeding, the ALJ is required to view the evidence in the light most favorable to the nonmoving party, OAR (7), and grant the motion if there is no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought and the party filing the motion is entitled to a favorable ruling as a matter of law. OAR (6). In its motion, the board asserted that there is no genuine issue of fact and, thus, no requirement for a fact finding hearing. The board claimed that petitioner s conduct is established as a matter of law and his use of the initials PsyA are not recognized in the profession and, therefore, constitute a false, deceptive or fraudulent statement. In essence, the board asserted that, based on petitioner s admissions to using the unrecognized abbreviation PsyA in various communications, the ALJ was left to conclude as

8 Cite as 284 Or App 792 (2017) 799 a matter of law that his conduct violated ORS (2)(d), ORS (1)(b), or applicable ethical standards. In support of its motion, the board submitted an affidavit of the executive director of the Oregon Higher Education Coordinating Commission (OHECC). The executive director averred that the OHECC oversees the Office of Degree Authorization (ODA), which, in turn, administers laws, standards, and services that protect students, holders of legitimately earned degrees, institutions, * ** and licensing boards. The executive director noted that he had not come across the degree designation * ** PsyA for a Psychologist Associate, there is no credible reference to such a degree as a recognized abbreviation in the field of Psychology, and, although it would be appropriate for a licensed psychologist associate to list the initials M.A. or M.S. and the words Licensed Psychologist Associate behind their name, [i]t is not appropriate, but rather, misleading to the public, to use PsyA in association with a person s name as a credential to signify a degree level. In his response, petitioner disagreed that his admission to certain conduct extinguished any genuine issues of material fact, noting that the only behavior that he admitted to was the use of PsyA to indicate my LICENSE as an independent licensed Psychologist Associate. Therefore, he disputed that using PsyA even assuming that it was not a recognized abbreviation was potentially misleading to the public because, in context, the public would understand that the abbreviation referred to petitioner s license. The ALJ granted the board s motion, concluding in her proposed order that petitioner s use of PsyA signified or advertised a degree or credential that is false and misleading to the public. Specifically, she noted that PsyA is not a recognized abbreviation in the field of psychology, although it is similar to initials used to designate a doctorate in psychology, and that, by using it in the same location that licensed psychologists place the initials Psy.D and Ph.D, petitioner signified a degree or credential that was misleading to the public. Accordingly, she concluded that that conduct has a serious detrimental effect on the health and safety of the public and constituted immoral or unprofessional

9 800 Wolff v. Board of Psychologist Examiners conduct under ORS (2)(d). Similarly, the ALJ concluded that using practicing psychology on a website available to the public was a false, deceptive, or fraudulent statement because it signified that petitioner had a doctorate in psychology. Finally, the ALJ concluded that petitioner s listing of Master of Arts Clinical Psychology in conjunction with the word degree was false and misleading to the public because it signified that he had a doctorate in clinical psychology. The ALJ also concluded that petitioner s use of PsyA, Master of Arts Clinical Psychology, and practicing psychology violated the prohibition in ORS (1)(b) against holding oneself out as a psychologist without first obtaining a license. The ALJ proposed suspending petitioner s license for one year and assessing a civil penalty of $10, Petitioner filed exceptions to the proposed order. The board denied the exceptions and issued a final order, which was substantively the same as the ALJ s proposed order. Petitioner sought judicial review of the board s final order. We review orders that result from the grant of summary determination for legal error. Hamlin v. PERB, 273 Or App 796, , 359 P3d 581 (2015); see also ORS (8)(a). As noted, under OAR , summary determination is appropriate if, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought and the party filing the motion, is entitled to a favorable ruling as a matter of law. Accordingly, our review requires us to determine if there was a genuine issue as to any material fact that is relevant to resolution of the legal issues presented by the motion here, whether petitioner violated ORS (2)(d) or ORS (1)(b) and if not, whether the board was entitled to a favorable ruling as a matter of law. As is the case with a motion for summary judgment, because the board would bear the burden of proof 6 The ALJ concluded that petitioner did not violate any applicable ethical standards because those standards only applied to licensed psychologists.

10 Cite as 284 Or App 792 (2017) 801 on the alleged violations at the contested case hearing, to be entitled to summary determination, the board s evidence must be such that all reasonable factfinders would have to conclude that petitioner commited the violations alleged by the board. ORS (2) ( The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position. ); see Wieck v. Hostetter, 274 Or App 457, 470, 362 P3d 254 (2015) (explaining that a party that has the burden of proof on an issue at trial has the burden of producing evidence to establish that issue as a matter of law at the summary judgment stage). On review, we understand petitioner to argue that, viewing the facts in the light most favorable to him, the board lacked a lawful basis to conclude that he violated ORS (1)(b) and ORS (2)(d). 7 As to the allegations that he violated ORS (2)(d), he claims that the conduct that he admitted to using the abbreviation PsyA, referencing a master s degree in clinical psychology, and stating that he practices psychology did not entitle the board to a ruling as a matter of law that he engaged in immoral or unprofessional conduct. 8 According to petitioner, that is so because, when his use of those descriptors is considered within the context in which he used them, whether that conduct would have misled or deceived the public as to his degree or credentials presented a genuine issue of material fact that was not resolved by the summary determination record. Put another way, he complains that the summary determination record did not establish that his conduct would in fact have misled or deceived the public such as to constitute a danger to the health or safety of the public. 7 Petitioner does not complain that the ALJ s order exceeded the scope of the board s summary determination motion to the extent that the board s motion was based solely on petitioner s use of PsyA, yet the ALJ s order also relied on the board s allegations as to his use of clinical psychology and practicing psychology to conclude that petitioner violated the applicable statutes. 8 At times in petitioner s brief, he frames his arguments in terms of a lack of substantial evidence. Given that we are tasked with reviewing an order entered on summary determination to determine if there remain any genuine issues of material fact, those references to substantial evidence appear inapt. Nevertheless, petitioner also correctly frames the issue as whether the board was entitled to judgment as a matter of law given the undisputed facts and viewing the evidence in the record in the light most favorable to him.

11 802 Wolff v. Board of Psychologist Examiners Similarly, he asserts that the summary determination record failed to establish as a matter of law that his conduct, including his statement that he had been practicing psychology for 15 years, was a violation of the prohibition against holding oneself out to be a psychologist without first obtaining a license. See ORS (1)(b). In particular, he asserts that the governing statutes persuasively establish that psychologist associates do practic[e] psychology, albeit with a more limited scope of practice than psychologists, noting that psychologist associates are authorized under ORS to perform certain functions within the practice of psychology. The board argues that, because it is undisputed that petitioner (1) used the abbreviation PsyA where a degree designation should be placed, (2) represented that he had a degree in clinical psychology, and (3) stated that he has been practicing psychology for 15 years, the board appropriately concluded that petitioner had misled the public into believing that he had a doctorate degree in clinical psychology and was a licensed psychologist. Given those circumstances, the board asserts that it was entitled to a favorable ruling as a matter of law that petitioner engaged in immoral or unprofessional conduct and represented [him] self to be a psychologist. Before we discuss the merits, we briefly address the board s contention that petitioner did not preserve his assignments of error. See Thomas Creek Lumber v. Board of Forestry, 188 Or App 10, 30, 69 P3d 1238 (2003) (noting that the preservation requirements of ORAP 5.45 apply not only to appeals of trial court judgments but also to petitions for judicial review of agency action ). In short, the board contends that petitioner s arguments on judicial review were not made in his exceptions to the ALJ s proposed order. As we recently explained, at least where, as here, the applicable statutes and rules do not make the filing of exceptions a mandatory prerequisite to judicial review, filing exceptions is not necessary to preserve an argument that is already before the board. Watts v. Board of Nursing, 282 Or App 705, 709, 386 P3d 34 (2016). Rather, it is sufficient that the petitioner raised the issues before the ALJ. Id. In

12 Cite as 284 Or App 792 (2017) 803 this instance, the arguments that petitioner makes on judicial review were fairly put before the board in petitioner s response to the board s summary determination motion. In particular, petitioner, although acknowledging that he had used PsyA in various forums, argued to the board that the use of that abbreviation was not necessarily misleading, essentially contending that the record left genuine issues of material fact to be determined. Petitioner also put before the board similar arguments regarding whether his use of clinical psychology and practicing psychology violated ORS (2)(d) or ORS (1)(b). Accordingly, we conclude that petitioner preserved the arguments he makes on judicial review. As to the merits, we agree with petitioner that summary determination was inappropriate in this instance because, viewing the evidence in the light most favorable to petitioner, there remained genuine issues of material fact as to whether petitioner s use of PsyA, Master of Arts Clinical Psychology, and practicing psychology was misleading or deceiving to the public. The ALJ s conclusions that petitioner violated ORS (2)(d) and ORS (1)(b) required a factual finding that petitioner s conduct would have misled the public into believing that petitioner was a licensed psychologist with a doctorate in psychology. Based on the summary determination record, we conclude that that was a disputed issue of material fact, which was inappropriate to resolve at the summary determination stage of the proceedings. To review, the summary determination record consisted solely of the conduct that petitioner admitted to and an affidavit from the executive director of OHECC. That evidence established that (1) petitioner was a psychologist associate with a master s degree in psychology with an emphasis in clinical psychology who was authorized to perform certain functions within the practice of psychology ; and (2) petitioner, in various forms and in combination with various additional descriptors, used an unrecognized abbreviation (PsyA) that is similar to degree designations for licensed psychologists, and he indicated in various public forums that he had a Master of Arts Clinical Psychology degree and has been practicing psychology for 15 years.

13 804 Wolff v. Board of Psychologist Examiners Viewing that evidence in the light most favorable to petitioner, a reasonable factfinder, considering the totality of the circumstances, could find that petitioner s use of PsyA, Master of Arts Clinical Psychology, and practicing psychology, would not have misled or deceived the public into believing that petitioner had a doctorate in psychology. For example, petitioner s use of PsyA in conjunction with references to his license as a psychologist associate and other surrounding contextual clues does not establish, as a matter of law, that petitioner was using PsyA to represent his degree. Nothing in the record establishes that a degree designation (rather than a license designation) always follows a person s name. Further, the record does not establish, as a matter of law, that the public would have understood PsyA to represent a doctorate in psychology, particularly given other contextual clues in the surrounding text that petitioner was a licensed psychologist associate. 9 Similarly, a reasonable factfinder could conclude on this record that the public would not be misled into believing that petitioner had a doctoral degree in clinical psychology by listing his degree as Master of Arts Clinical Psychology. Again, viewing that description in the light most favorable to petitioner, a reasonable factfinder could find that petitioner s description of his degree would not have misled the public into believing that he had a doctorate in psychology. Similarly, on this record, a reasonable factfinder could find that petitioner s reference to practicing psychology was not misleading or deceiving given the surrounding textual clues and the totality of the circumstances. The ALJ s conclusion that petitioner s conduct also violated ORS (1)(b) is subject to similar problems. We understand the ALJ to have concluded that, because petitioner made representations that would have misled the public into believing that he held a doctorate in psychology 9 Perhaps if petitioner had used a recognized abbreviation for a licensed psychologist (i.e., Ph.D. or Psy.D), a reasonable factfinder would be compelled to find that such conduct is misleading or deceiving to the public. Cf. Topaz v. Board of Examiners for Engineering, 255 Or App 138, 147, 297 P3d 498, rev den, 353 Or 714 (2013) (petitioner did not dispute that using the abbreviation for professional engineer (i.e., P.E.) implied that he was a professional engineer and could perform engineering work). But, on the record here, we cannot conclude that the mere use of an unrecognized abbreviation compels such a finding.

14 Cite as 284 Or App 792 (2017) 805 and was a licensed psychologist, he violated ORS (1)(b) s prohibition against representing oneself as a psychologist. 10 We have rejected the conclusion that petitioner s representations necessarily would have misled the public as a matter of law; consequently, and for similar reasons, summary determination on the issue of whether petitioner s conduct violated ORS (1)(b) was also inappropriate. To be clear, we are simply concluding that the record on summary determination was not sufficient to eliminate any issue of material fact as to whether petitioner s conduct was misleading or deceiving. As we stated in Watts, [i]f there is evidence creating a relevant fact issue, then no matter how overwhelming the moving party s evidence may be, or how implausible the nonmoving party s version of the historical facts, the nonmoving party, upon proper request, is entitled to a hearing. 282 Or App at 714. Reversed and remanded. 10 We do not understand the board to have concluded that a licensed psychologist associate such as petitioner violates ORS (1)(b) by representing that the person is qualified to provide particular psychological services that the person is authorized to provide under the person s license. Such a construction of the statute would be problematic, given that licensed psychologist associates can permissibly provide specified services. See ORS

15 BEFORE THE BOARD OF PSYCHOLOGIST EXAMINERS ST ATE OF OREGON IN THE MATTER OF: CHRISTIAN WOLFF, M.A., Respondent ) FINAL ORDER ADOPTING ) RULING ON BOARD'S MOTION FOR ) ) ) OAH Case No.: ) Agency Case No.: HISTORY OF THE CASE On May 31, 2013, the Board of Psychologist Examiners (Board or PEB) issued a Notice oflntent to Impose Civil Penalty (Notice) to Christian Wolff, M.A. (Respondent). On June 28, 2013, LeAnn McDonald, Attorney at Law, on behalf of Respondent, filed Respondent Christian Wolffs Answer and Request for Hearing (Respondent's Answer and Request for Hearing). On June 30, 2013, the Board referred the hearing request to the Office of Administrative Hearings (OAH). Senior Administrative Law Judge (ALJ) Dove L. Gutman was assigned to preside at hearing. On September 5, 2013, a prehearing telephone conference was held. ALJ Gutman presided. Senior Assistant Attorney General Warren Foote represented the Board. Respondent represented himself. 1 On September 6, 2013, ALJ Gutman issued a Pre-Hearing Order setting forth, among other things, the issues for hearing, the prehearing schedule, and the date for the contested case hearing. On September 7, 2013, Respondent filed a Subpoena Request. On September 9, 2013, Mr. Foote, on behalf of the Board, filed a Motion to Quash Subpoena Request (Motion to Quash). On September 10, 2013, ALJ Gutman denied Respondent's Subpoena Request, granting the Board's Motion to Quash. On September 13, 2013, the Board issued an Amended Notice oflntent to Suspend and Impose Civil Penalty (Amended Notice) to Respondent. On September 30, 2013, Mr. Foote, on behalf of the Board, issued to Respondent the Board's Requests for Admissions. On October 1, 2013, the Board issued a Second Amended Notice oflntent to Suspend and Impose Civil Penalty (Second Amended Notice) to Respondent. On October 23, 2013, Respondent filed a Motion for Summary Dismissal (Motion to 1 During the prehearing conference, Respondent confirmed that he was no longer represented by counsel. Jn the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page I of 44

16 Dismiss), along with attachments 1 through 6. On October 30, 2013, Mr. Foote, on behalf of the Board, filed an Answer to Motion for Summary Determination (Answer to Motion to Dismiss) & Motion for Summary Determination, along with attachments A and B. On October 31, 2013, Respondent filed Respondent Christian Wolff's Answer and Request for Hearing re: 2nd Amended Notice of Intent to Suspend and Impose Civil Penalty (Answer and Request for Hearing regarding the Second Amended Notice). On October 31, 2013, a prehearing (or status) telephone conference was held. ALJ Gutman presided. Mr. Foote represented the Board. Respondent represented himself. On November 1, 2013, ALI Gutman issued a letter confirming relevant matters that were discussed at the prehearing telephone conference. On November l, 2013, Respondent filed a Request for Change of ALJ. On November 4, 2013, Presiding ALJ John Mann denied Respondent's Request for Change of ALJ. On November 6, 2013, Mr. Foote, on behalf of the Board, requested that Respondent's failure to respond to the Requests for Admissions be deemed an admission of the matters that are the subject of the Requests for Admission (Board's Request for Admissions). On November 12, 2013, ALJ Gutman issued a Ruling denying Respondent's Motion to Dismiss. On November 12, 2013, ALJ Gutman issued a Ruling denying the Board's Request for Admissions. On November 12, 2013, Respondent filed an Answer to the Board's Motion for Summary Determination. On November 13, 2013, Respondent submitted attachments Rl through R39. ISSUES 1. Whether Respondent engaged in immoral or unprofessional conduct. ORS (2)(d). 2. Whether Respondent engaged in conduct that violated Ethical Standard 5.01 (Avoidance of False or Deceptive Statements), formulated under ORS (12), as adopted by OAR (1). 3. Whether Respondent engaged in conduct that violated ORS (1 )(b) and (2). 4. Whether Respondent's license shall be suspended for a period of one year with all but 30 days of the suspension being stayed provided Respondent comply with the terms of the Board's Final Order requiring Respondent to produce persuasive evidence that he has removed the words "clinical psychology" or "practicing psychology" and the initials "Psy.A." (or initials closely resembling these) from all websites, letterheads, advertising, or other representations to the public that refer to Respondent by name. ORS (1)(c). 5. Whether Respondent shall be assessed a civil penalty in the amount of $10,000. ORS In the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 2 of 44

17 (1)(g), and (3)()J). DOCUMENTS CONSIDERED The following documents were considered in this matter: The Board's Motion for Summary Determination, attachments A and B, Respondent's Answer to the Board's Motion for Summary Determination, attachments Rl through R39, and the party's pleadings. LEGAL STANDARD FOR Motions for Summary Determination are governed by OAR , which provides, in pertinent part: (!)Not less than 28 calendar days before the date set for hearing, the agency or a party may file a motion requesting a ruling in favor of the agency or party on any or all legal issues (including claims and defenses) in the contested case. The motion, accompanied by any affidavits or other supporting documents, shall be served on the agency and parties in the manner required by OAR (2) Within 14 calendar days after service of the motion, the agency or a party may file a response to the motion. The response may be accompanied by affidavits or other supporting documents and shall be served on the agency and parties in the manner required by OAR (3) The administrative law judge may establish longer or shorter periods than those under section ( 1) and (2) of this rule for the filing of motions and responses. ***** (6) The administrative law judge shall grant the motion for a summary determination if: (a) The pleadings, affidavits, supporting documents (including any interrogatories and admissions) and the record in the contested case show that there is no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought; and (b) The agency or party filing the motion is entitled to a favorable ruling as a matter of law. (7) The administrative law judge shall consider all evidence in a In the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 3 of 44

18 manner most favorable to the non-moving party or non-moving agency. (8) Each party or the agency has the burden of producing evidence on any issue relevant to the motion as to which that party or the agency would have the burden of persuasion at the contested case hearing. (9) A party or the agency may satisfy the burden of producing evidence through affidavits. Affidavits shall be 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. (10) When a motion for summary determination is made and supported as provided in this rule, a non-moving party or nonmoving agency may not rest upon the mere allegations or denials contained in that party's or agency's notice or answer, if any. When a motion for summary determination is made and supported as provided in this rule, the administrative law judge or the agency must explain the requirements for filing a response to any unrepresented party or parties. ( 11) The administrative law judge's ruling may be rendered on a single issue and need not resolve all issues in the contested case. (12) If the administrative law judge's ruling on the motion resolves all issues in the contested case, the administrative law judge shall issue a proposed order in accordance with OAR incorporating that ruling or a final order in accordance with OAR ifthe administrative law judge has authority to issue a final order without first issuing a proposed order. FINDINGS OF FACT Background I. Respondent is licensed by the Board as a Psychologist Associate in the State of Oregon. (Notice of Intent to Impose Civil Penalty; Respondent's Answer and Request for Hearing.) Respondent's license from the Board provides, in relevant part: Oregon Board of Psychologist Examiners Licensed Psychologist Associate License Number: Expiration Date: Jn the Matter of Christian Wolff - FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 4 of 44

19 5050 3/31/2015 Christian Wolff, M.A. (Attachment R-39.) 2. Respondent's highest academic degree is a Master of Arts (MA) in Psychology from Washburn University in Topeka, Kansas. Respondent's transcript from WU indicates, in part: ****DEGREE SUMMARY**** MASTER OF ARTS MAJOR: PSYCHOLOGY EMPH: CLINICAL PSYCHOLOGY (Respondent's Motion to Dismiss, Attachment 6.) 3. Respondent uses the initials "PsyA," "Psy.A," and "Psy.A." on letterhead, business cards, signature blocks and websites made available to the public to indicate his license as a Psychologist Associate. Respondent's practice is to include the words "Licensed Psychologist Associate" immediately after the initials. (Respondent's Motion to Dismiss, Attachment 5; Respondent's Answer and Request for Hearing; Respondent's Answer and Request for Hearing Regarding the Second Amended Notice.) Investigation 4. On January 3, 2013, Karen Berry, Investigator for the Board, issued a letter to Respondent that stated, in relevant part: The Board of Psychologist Examiners has opened an investigation file regarding your alleged misrepresentation of your credentials to practice psychology. We are conducting a preliminary investigation into these matters. As you know, the Board sent you a certified letter, dated , that informed you it was unlawful to represent yourself as a "Psychologist" or "Licensed Psychologist" when advertising for new clients. Reference was made to two published advertisements. Yet, you refer to yourself as a "Licensed Psychologist" on the current ipsychotherapist.com website. There is no basis in law for referring to yourself as "Christian Wolff, Psy.A." Your master's level degree should follow your name in any written or published material. Using "Psy.A" in place of M.A. appears to suggest you are a licensed psychologist with a doctoral level degree. This misleading advertisement can be found In the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 5 of 44

20 on the current website. You also use this language in the current advertisement. ORS sets out authorized sanctions for misrepresenting oneself to be a licensed psychologist. (Respondent's Motion to Dismiss, Attachment 3.) 5. On April 3, 2013, Becky Eklund, Interim Executive Director for the Board, sent a letter to Respondent that stated, in material part: As you are aware, the Board of Psychologist Examiners is currently investigating your alleged professional misconduct. Although the investigation is ongoing, the Board voted to issue this 30-day letter of specific allegations of conduct that may constitute violation of APA Ethical Standard 5.01 Avoidance of False or Deceptive Statements in the view of the Board. Please provide the Board with any information you believe important to its understaniling of your use of"psy.a." and "PsyA" after your name on at least four internet sites. In your response to this letter, please include the following information: 1. What is the degree Psy.A.? 2. Where did you earn a Psy.A. degree? 3. Do you believe use of a Psy.A. degree after your name is not misleading to the public and why? In accordance with the Board's administrative rules, you are required to respond to this letter within 30 days from the date of mailing, OAR (5)(a). The Board may choose to act on the allegations if you do not respond. The Board may seek additional information from you in a future letter if additional possible violations are uncovered as part of its ongoing investigation. The Board's role is to protect the public and the Board understands this may be a very stressful process for you. The Board looks forward to addressing these matters with you as efficiently as possible. (Respondent's Motion to Dismiss, Attachment 4; emphasis in original.) 6. On April 26, 2013, Respondent sent a letter to Ms. Eklund, Ms. Berry, Shane Haydon, and the Board that stated, in pertinent part: My apologies for taking this long to respond to your letter of April In the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 6 of 44

21 3, As you may know, I am usually much more prompt in all my communications with the board. Life has simply placed many demands on me at the present time. Regarding your questions, I am wondering if you can help me to be more clear on them so I can respond in a more meaningful way. Such clarity may help us all to expedite a resolution to this matter. By your letter, the board is issuing a specific allegation that I have engaged in conduct which may constitute a violation of AP A Ethical Standard 5.01 Avoidance of False or Deceptive Statements (ES 501). I am not clear, however, on what, precisely, it is that I have done to lead the board to believe that ES 5.01 has been violated. I guess, in addition to the question "what," I am asking why the board believes my conduct violates (or may violate) ES 5.01, and how the board believes my conduct is violating (or may be violating) this ethical standard. I am sorry to seem dense. I have in fact read the letter from Karen Berry dated January 3, 2013 and I have read your letter as well. It seems the board believes I am representing myself to be doctoral level psychologist when I, in fact, practice as a masters level psychologist (known as a psychologist associate). Apparently the issue which remains is the use of my initialism, "Psy A" to indicate my license as a Psychologist Associate. In that the hour has come to be this late, I would like to attempt to answer the questions you have posed to me in the way in which you have phrased them. 1) What is the degree Psy.A.? PsyA is not a degree. It is technically an acronym/initialism, short for Psychologist Associate. "Licensed Psychologist Associate" are words used to indicate my license. Master of Arts is my (highest) degree. When I use an initialism to indicate my degree, I use MA. 2) Where did you earn a Psy.A. degree? Please see my answer to question number one. My license as a psychologist associate was granted to me by the State of Oregon through the Oregon Board of Psychologist Examiners (OBPE). It was earned through a long and involved process starting with my degree and other prerequisites to application for licensure as a psychologist associate. It continued with a residency which began at Pawnee Mental Health Services in Manhattan, Kansas, continued at Tualatin Valley Centers (now Life Works NW), primarily under the direction of Ken Ihli, PhD, former In the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 7 of 44

22 Chair of OBPE. After I was granted my license, I continued the supervised work experience required for independent licensure, also under the direction o[f] Ken Ihli. Due to funding cuts, I was laid off from Tualatin Valley Centers, and finished my supervised work experience under the direction of Sally Clayton, Ph.D. I took and passed the final oral examination and was thus granted, by the State of Oregon and OBPE, a license to practice psychology as an independent psychologist associate. 3) Why do you believe use of a Psy.A. degree after your name is not misleading to the public and why? It is not a degree and is not intended to signify a degree. Respectfully, answering this question could require an extremely I ong response. This is due to the manner in which the question is phrased. I am being asked to prove (justify) a negative. I respectfully submit it would save a lot of time and confusion if the board would state its reasons for believing the use of Psy A after my name is misleading to the public. With a rephrasing, I believe I could provide the Board with a brief, concise, and clear response to its concerns about this matter. To put it more simply, the process would go like this: The Board enumerates the reasons it believes it is true (or may be true) that putting Psy A after my name misleads the public. Then, addressing each point, I would provide reason and evidence for my belief that it is not true. I do in fact believe this would lead to worthwhile education on this matter and provide the Board with what they wish to know. If you could help me understand, specifically, the what, why, and how of these allegations, I may be able to provide more specific, useful, and clear answers to your questions. I am also interested in!mowing, specifically, what the board would like me to do to remedy this concern; why the board would like me to do it, and how the suggested remedy would, in the board's view, [] move me from alleged violation to compliance with the ethical standard. (Respondent's Motion to Dismiss, Attachment 5; emphasis in original.) 7. On May 31, 2013, Ms. Eklund, on behalf of the Board, issued a Notice oflntent to Impose Civil Penalty (Notice) to Respondent that stated, in part: I. In the Matter of Christian Wolff- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 8 of 44

23 The Board of Psychologist Examiners (Board) is the state agency responsible for licensing and disciplining psychologists and psychologist associates, and for regulating the practice of psychology in the State of Oregon. Christian Wolff, M.A., (Respondent) is licensed by the Board to perform certain functions within the practice of psychology in the state of Oregon as a psychologist associate. 2. The Board proposes to impose a civil penalty of $5,000 against Respondent, pursuant to ORS (l)(g), ORS (2)(d) immoral or unprofessional conduct, and ORS (2)(h) in that Respondent has violated the code of professional conduct formulated under ORS (12), as adopted by OAR Respondent's conduct that violated ORS (2)(d) and ORS (2)(h) is more particularly described below: Respondent is a licensed psychologist associate. His highest academic degree is a Master of Arts in psychology. Respondent has placed the initials "PsyA" or "Psy.A." followed by the words "Licensed Psychologist Associate" behind his name on letterhead and webpages that have been published and made available to the public. In response to inquiries by the Board, Respondent acknowledges that PsyA is not a degree, and describes his use of those initials as an "acronym/initialism, short for Psychologist Associate." The terms "PsyA" and "Psy.A." are not recognized abbreviations in the field of psychology, either as an academic degree or professional license designation. 3.2 Licensed psychologists in Oregon must hold a doctorate degree in psychology from an approved doctoral program in psychology, and may properly list the following initials behind their name to designate a doctorate in psychology: "Ph.D." and "Psy.D." Psychologist associates with a master of arts in psychology may list the initials "M.A." behind their name to designate their academic degree. By listing the initials "Psy A" or "Psy.A." behind his name on letterhead and webpages made available to the public, Respondent has used initials that are not a recognized abbreviation in the field of psychology, and constitute public statements that are false, deceptive or fraudulent regarding his academic degree. This conduct violates ORS (2)(d) In the Matter of Christian Wo/jf- FINAL ORDER ADOPTING RULING ON BOARD'S MOTION FOR Page 9 of 44