Mayer v. Board of Psychologists, Department of Labor & Industry , 374 Mont. 364 ( 2014 )

April 1 2014
DA 13-0129
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 85TAYLOR MAYER,
Petitioner and Appellant,
v.
BOARD OF PSYCHOLOGISTS,
DEPARTMENT OF LABOR AND
INDUSTRY, STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV-12-0294
Honorable Susan P. Watters, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Peter T. Stanley, Attorney at Law, Billings, Montana
For Appellee:
Tyler G. Moss, Special Assistant Attorney General, State of Montana
Department of Labor and Industry, Helena, Montana
Submitted on Briefs: December 3, 2013
Decided: April 1, 2014
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Taylor Mayer applied with the Montana Board of Psychologists (the Board) for
licensure as a psychologist. When the Board initially denied his application on the
ground that he did not meet the education-related qualifications, Mayer exercised his
right to a contested case hearing. Following the hearing, the Hearing Officer entered
proposed findings of fact and conclusions of law in favor of Mayer. The Board thereafter
reviewed the Hearing Officer’s decision and rejected several of his proposed findings and
conclusions. The Board entered a final agency decision denying Mayer’s application.
¶2 Mayer sought judicial review of the Board’s final decision in the Thirteenth
Judicial District Court, Yellowstone County. He argued that the Board had misapplied
the standards governing the Board’s review of a hearing officer’s decision. The District
Court affirmed the Board, and Mayer now appeals to this Court. The issue on appeal is
whether the District Court correctly affirmed the Board’s final decision. The question,
more specifically, is whether the Board had sufficient grounds for rejecting certain
findings and conclusions of the Hearing Officer. We affirm.
BACKGROUND
¶3 The Legislature has determined “that the practice of psychology in Montana
affects the public health, safety, and welfare and should therefore be subject to regulation
and control in the public interest in order to protect the public from the unauthorized and
unqualified practice of psychology and from unprofessional conduct by persons licensed
to practice psychology.” Section 37-17-101, MCA. To that end, the Legislature has
established the Board of Psychologists, which consists of six members appointed by the
2
Governor with the consent of the Senate. Two members must be licensed psychologists
in private practice, one member must be a licensed psychologist in public health, one
member must be a licensed psychologist engaged in the teaching of psychology, and two
members must be from the general public. Section 2-15-1741, MCA.
¶4 Of significance to this case, the Board is required to license as a psychologist any
person who satisfies certain specified criteria. Section 37-17-302, MCA. In particular,
the person must be at least 18 years of age and of good moral character, pay the
prescribed fee, pass the prescribed examination, and have completed at least two years of
supervised experience in the practice of psychology. Section 37-17-302(1), (2), (4),
MCA. Additionally, the person must submit evidence that he or she:
(a) has received a doctoral degree in clinical psychology from an
accredited college or university having an appropriate graduate program
approved by the American psychological association;
(b) has received a doctoral degree in psychology from an accredited
college or university not approved by the American psychological
association and has successfully completed a formal graduate retraining
program in clinical psychology approved by the American psychological
association; or
(c) has received a doctoral degree in psychology from an accredited
college or university and has completed a course of studies that meets
minimum standards specified in rules by the board.
Section 37-17-302(3), MCA. Essentially, under subsections (a) and (b), the person must
have completed a graduate program in clinical psychology approved by the American
Psychological Association (APA), whereas under subsection (c), the person must have
completed a course of studies that meets standards specified by the Board.
¶5 Mayer worked as a counselor at the Yellowstone Boys and Girls Ranch when he
decided to pursue a Ph.D. in psychology. He enrolled in the clinical psychology program
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at Walden University in 1997 and obtained a doctorate of philosophy in clinical
psychology in May 2005. Walden is an online university that administers its classes
primarily over the Internet. Since 1990, Walden has been accredited by the Higher
Learning Commission, which accredits degree-granting colleges and universities in the
north central region of the United States. Walden’s clinical psychology program,
however, is not accredited by the APA. Thus, Mayer’s licensure application fell under
subsection (c) of § 37-17-302(3), MCA—meaning that his course of studies had to meet
the standards specified in the Board’s rules. Those standards are detailed below.
¶6 After obtaining his degree in 2005, Mayer applied with the Board to become
licensed as a psychologist. It appears that no decision was made on that application.
Mayer renewed his application in late 2008 and provided supporting materials in 2009.
As with his initial application, Mayer again relied on the education he had received at
Walden. The Board denied the application at a meeting held on June 17, 2010, citing
three reasons for the denial: noncompliance with the academic residency requirement,
noncompliance with the curricular requirements, and inadequate assessment of student
performance in the curriculum.
¶7 Mayer challenged the Board’s June 17, 2010 decision and requested a hearing.
Under the statutory framework, a person who is denied a license is entitled to a contested
case hearing before an impartial hearings examiner. See §§ 2-4-631(1), 37-1-121(1),
37-1-131(1)(b), 37-1-307(1)(a), MCA. The hearing must be conducted in accordance
with the Montana Administrative Procedure Act, the Montana Rules of Civil Procedure,
and the Montana Rules of Evidence, § 37-1-310, MCA, and all parties must be afforded
4
an opportunity to respond and present evidence and argument on all issues involved,
§ 2-4-612(1), MCA. Although the hearing is conducted by a hearings examiner, the final
agency decision is made by the Board. See §§ 2-4-621(3), 37-1-131(1)(b), MCA. As
will be seen, this puts the Board in the position of first presenting evidence at the hearing
and advocating in support of its initial decision denying the licensure application, and
then reviewing the hearings examiner’s proposed findings and conclusions following the
hearing. The Board is not permitted, however, to simply discard the hearings examiner’s
decision and reaffirm the Board’s original denial. Rather, as discussed below, the Board
is constrained by the standards of review set forth in § 2-4-621(3), MCA.
¶8 A two-day contested case hearing was held in March 2011. The Hearing Officer
admitted seven exhibits, which included documents from Mayer’s application file,
syllabus pages from Walden University, and guidelines for accrediting professional
psychology programs. Two witnesses testified. The Board, through counsel, presented
testimony from Dr. Christine Fiore, who is a professor of psychology at the University of
Montana. Mayer, who also was represented by counsel, testified on his own behalf. The
testimony from both Dr. Fiore and Mayer focused on whether Walden’s program met the
residency and curricular requirements adopted by the Board for universities that are not
APA-accredited. The Board’s rules, in summary, contain the following requirements.
¶9 First, as to residency, a non-APA-accredited psychology program must include “a
minimum of three academic years of full-time graduate study with a minimum of one
year’s residency at the educational institution granting the doctoral degree.” Admin.
R. M. 24.189.604(1)(i) (emphasis added). Relevant to the Hearing Officer’s analysis, the
5
Board amended the definition of “one year’s academic residency” during the time frame
when the Board was considering Mayer’s application. Under the old definition, “one
year’s academic residency” meant “18 semester hours or 27 quarter hours earned on a
full-time or part-time basis at the educational institution granting the doctoral degree.”
Admin. R. M. 24.189.301(2) (2009). The residency had to be accumulated in not less
than 9 months and not more than 18 months, and had to include “face-to-face (personal)”
group courses where there is “both faculty-to-student and student-to-student interaction.”
Admin. R. M. 24.189.301(2)(a)(i). The institution had to document its assessment and
evaluation of the student’s performance. Admin. R. M. 24.189.301(2)(c).
¶10 The Board amended Rule 24.189.301(2) in 2010 based on the perception that
“some applicants do not appear to understand what is meant by ‘one year’s academic
residency.’” 12 Mont. Admin. Register 1508 (June 24, 2010). The Board sought in the
amended rule “to more thoroughly and completely delineate the specific components of
the residency requirement.” 3 Mont. Admin. Register 303 (Feb. 11, 2010). For example,
the rule now defines “one year’s academic residency” as “continuous, full time, active
engagement by the student in the elements of the training program while the student is
physically present during one academic year at the educational institution.” Admin.
R. M. 24.189.301(2) (2011) (emphases added). The year of academic residency must
consist of “two semesters or three quarters with continuous experience on campus, in no
less than three month increments,” and it must be accrued in no more than 18 months.
Admin. R. M. 24.189.301(2)(c). Full-time status means “at least 30 hours on campus per
week.” Admin. R. M. 24.189.301(2)(d). There must be “face-to-face (personal)”
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interaction among faculty and students, Admin R. M. 24.189.301(2)(e)(i), and the new
definition now makes clear that videoconferencing and other electronic means are not
sufficient, Admin. R. M. 24.189.301(2)(b), (g).
¶11 As to curriculum, the Board’s rules1 require that the program “be an organized
sequence of study . . . to provide an integrated education experience appropriate to the
professional practice of psychology.” Admin. R. M. 24.189.604(1)(e). Each student
must receive instruction in “scientific and professional ethics and standards, research
design and methodology, statistics and psychometrics,” and must demonstrate
competence in four substantive areas: biological bases of behavior, cognitive-affective
bases of behavior, social bases of behavior, and individual differences. Admin. R. M.
24.189.604(1)(i). The program must include at least 60 quarter hours or 40 semester
hours of “formal graduate study” in psychology as well as “examination and grading
procedures designed to evaluate the degree of mastery of the subject matter by the
student.” Admin. R. M. 24.189.604(1)(i)(v)(A), (B).
¶12 Dr. Fiore admitted that Mayer’s studies at Walden satisfied many, if not most, of
the Board’s requirements. Nevertheless, it was her opinion that Walden’s program did
not meet the Board’s standards in certain critical respects. She based this opinion on her
review of Mayer’s application file and the syllabi from the Walden courses Mayer had
taken, and on her assessments of Walden’s courses against the APA standards and the
psychology program at the University of Montana. As noted, Dr. Fiore is a professor of
psychology, as well as the Director of Clinical Training, at the University of Montana.
1
The curricular rules were not amended during the review of Mayer’s application.
7
The psychology program at the University of Montana is APA-accredited, and Dr. Fiore
has twice assisted the University with the accreditation process. She therefore considers
herself “very familiar” with the APA standards. Under cross-examination, Dr. Fiore
conceded that Mayer’s application was not subject to the APA standards or to the policies
of the University of Montana; rather, it was subject to the standards adopted by the Board
under § 37-17-302(3)(c), MCA. Dr. Fiore opined, however, that the Board’s standards
and the APA standards are “very similar . . . in terms of hours, residency, courses, etc.”
In this regard, Dr. Fiore discussed a letter the Board had sent to the APA in 2007 in
which the Board indicated that it relies on the criteria developed by the APA’s
Committee on Accreditation in determining whether a given training program meets the
Board’s own criteria. Dr. Fiore understood the Board’s rules for non-APA-accredited
programs, therefore, as being modeled on the APA standards while permitting some
“flexibility.”
¶13 Based on this understanding, Dr. Fiore opined that Walden’s program failed the
Board’s residency requirement because the Walden program did not require “continuous
enrollment for a[n academic] year . . . in physical residence.” Dr. Fiore conceded that the
Board’s old definition of residency does not state expressly that the enrollment must be
“continuous” and “in physical residence.” She maintained, however, that an academic
residency in psychology is not effective unless there is physical presence and continuous
enrollment for the academic year. She explained that the residency enables the student to
concentrate on coursework, professional training, and scholarship; to work closely with
professors, supervisors, and other students; to receive support in thesis, dissertation, or
8
doctoral work through frequent consultations with advisors; and to acquire habits, skills,
and insights necessary for attaining a doctoral degree in psychology. Dr. Fiore stated that
these purposes are accomplished through continuous close association and mentoring
with faculty members and other students. In her opinion, showing up for three-week
sessions in the summer and long weekends at other times of year (as Mayer had done) is
insufficient for fulfilling an academic residency in psychology.
¶14 As to curriculum, Dr. Fiore went through each of Mayer’s Walden courses and
explained why she believed the courses were insufficient. She cited primarily two
reasons why the courses did not meet the Board’s standards. First, as noted, the Board’s
rules require “an organized sequence of study . . . to provide an integrated education
experience appropriate to the professional practice of psychology.” Admin. R. M.
24.189.604(1)(e). In Dr. Fiore’s opinion, based on her familiarity with APA-accredited
graduate programs, Walden’s courses were not organized in a proper sequence of study.
She stated that she could not perceive “the rhyme or reason of how courses are taken” at
Walden. In basing her opinion in part on the APA standards, Dr. Fiore reiterated that the
Board’s standards are modeled on, and substantially the same as, the APA standards.
Second, the Board’s rules also require the program to include a certain number of hours
of “formal graduate study” in psychology, plus “examination and grading procedures
designed to evaluate the degree of mastery of the subject matter by the student.” Admin.
R. M. 24.189.604(1)(i)(v)(A), (B). In Dr. Fiore’s opinion, the classes and level of
instruction at Walden were “more consistent with undergraduate level education than
graduate level education.” Dr. Fiore testified repeatedly that Walden’s courses lacked the
9
necessary “breadth” and “depth” expected of graduate level courses. She also indicated
that the methods used at Walden for assessing students’ mastery of the subject matter
were inadequate. In this regard, Dr. Fiore posited that the one-to-thirty ratio of faculty to
students at Walden is “more like undergraduate education” and inhibits appropriate
assessment of student competence at a graduate level.
¶15 Mayer testified that he received an undergraduate degree in psychology from the
University of Montana in 1991 and a master of science in rehabilitation counseling from
Montana State University-Billings in 1995. Mayer has worked in the human services and
mental health field since 1992 and at the Yellowstone Boys and Girls Ranch since 1993.
He was licensed in Montana as a clinical professional counselor in 1996.
¶16 Mayer explained that he had selected Walden partly because his family lived in
Billings and he had been unwilling to relocate to an APA-accredited school. He stated
that he had reviewed the Board’s rules and concluded that Walden’s program met the
Board’s requirements. Mayer noted that he had contacted the Board early in his studies
at Walden and inquired whether Walden was an approved university, but the Board did
not give him an answer. Mayer chose to continue his studies at Walden nonetheless.
¶17 Mayer testified that he had completed 27 quarter hours in residence “at Walden”
within an 18-month period and that the majority of the residency included face-to-face
time with faculty and students. He conceded that the residency consisted of a three-week
summer session, several long weekends throughout the year, and then another three-week
summer session. As to curriculum, Mayer testified about the topics covered in each of
his Walden courses, as stated on the syllabi. He also testified from memory regarding
10
some of his coursework. He explained having to provide scholarly input at least twice a
week to the ongoing list-serve discussions led by the professors, as well as having to
provide critical evaluations of other students’ work posted on these online forums.
Mayer maintained that his studies were “more demanding and interactive” than Dr. Fiore
had suggested during her testimony, and he posited that all of his Walden courses were
graduate level courses. His opinion in this regard, however, was based on his comparison
of his Walden courses to his undergraduate classes at the University of Montana and his
master’s program at Montana State University-Billings. Mayer conceded that he had no
experience with other graduate psychology programs. He also conceded that aspects of
the Walden program were not “robust” and that the training depended largely on each
individual student’s own diligence and “self-motivat[ion].”
¶18 Finally, Mayer noted that he had worked with two Montana-licensed psychologists
at the Yellowstone Boys and Girls Ranch. He testified that both psychologists had
indicated that they were satisfied with his work in relation to psychological assessment,
competency, and consultation services. Mayer stated that, in his opinion, the training he
received at Walden met the Board’s rules for non-APA-accredited programs and
adequately prepared him for the practice of psychology.
¶19 The Hearing Officer issued his proposed findings of fact, proposed conclusions of
law, and recommended order on November 14, 2011. As an initial matter, the Hearing
Officer addressed the Board’s amendments to the definition of “one year’s academic
residency.” As noted, the new definition makes it explicit that the residency must be
“full time,” consisting of “continuous experience on campus, in no less than three month
11
increments,” and that the student must be “physically present” during one academic year
at the educational institution. Admin. R. M. 24.189.301(2)(c) (2011). The Hearing
Officer construed these as new requirements not imposed by the prior definition of “one
year’s academic residency.” Because the new definition became effective on June 25,
2010—eight days after the Board’s initial denial of Mayer’s application—the Hearing
Officer concluded that the prior definition controls. Though the Board has never disputed
that the prior definition is controlling, the Hearing Officer nevertheless concluded that the
reasons advanced by the Board and Dr. Fiore for finding Mayer’s residency at Walden
inadequate were premised on the requirements contained in the amended definition. As
such, the Hearing Officer determined that the Board and Dr. Fiore were improperly
attempting to subject Mayer to new, inapplicable residency criteria.
¶20 The Hearing Officer also rejected Dr. Fiore’s opinion concerning residency for a
second reason. Specifically, the Hearing Officer perceived “considerable inconsistencies
in her testimony about what standard she was testifying about.” The Hearing Officer
stated that Dr. Fiore referred “all too frequently” to the APA’s criteria and the practices
of the University of Montana, and that her testimony displayed “considerable lack of
familiarity” with the Board’s standards. Based on his interpretation of the prior definition
of “one year’s academic residency,” the Hearing Officer found that Mayer had satisfied
the residency requirement because he “attended classes in-person on campus and earned
more than 27 quarter hours on a full-time basis,” his classes “included student-to-faculty
and student-to-student contact and involved personal group courses,” and his
performance was “documented by the institution.”
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¶21 As to curriculum, the Hearing Officer found Mayer’s testimony alone “sufficient
to show that he completed the required course work.” Conversely, the Hearing Officer
again felt that Dr. Fiore’s testimony was “inconsistent about the standards for the course
work” because she frequently referred to the curricular requirements of the APA and the
University of Montana. The Hearing Officer found that Mayer’s studies at Walden
included instruction in the various content areas described in Rule 24.189.604, that he
successfully completed the required courses, and that he had the requisite meetings with
faculty relating to the program and course content. The Hearing Officer dismissed
Dr. Fiore’s concerns regarding the breadth and depth of Walden’s courses, stating merely
that “it is clear based on Mayer’s testimony and the effect of the rules that he met those
requirements.” Finally, based on “outstanding recommendations” included in Mayer’s
application file, which indicated that “Mayer meets the expectations of his peers, and
uses and understands the work of a licensed psychologist,” the Hearing Officer opined
that “any doubts about the sufficiency of his course work should be resolved in his favor
because his work experience and the knowledge of those most familiar with it indicate
that the knowledge he gained at Walden University was sufficient.” The Hearing Officer
accordingly recommended that, pending the outcome of his examination, the Board grant
Mayer’s application for licensure as a psychologist.
¶22 The Board issued its findings of fact, conclusions of law, and final order on
February 10, 2012. The Board adopted a majority of the Hearing Officer’s findings and
conclusions, but rejected or modified several critical findings and conclusions and
reinstated its denial of Mayer’s application. As to residency, the Board concluded that
13
the Hearing Officer had misinterpreted the definition of “one year’s academic residency”
under Admin. R. M. 24.189.301(2) (2009). The Board indicated that the residency must
be fulfilled at the educational institution and that it must be continuous.2 The Board
modified the Hearing Officer’s finding to state: “Mayer attended classes in-person but not
on campus.” Regarding curriculum, the Board concluded that the Hearing Officer had
misapplied the criteria governing the sequence, content, and assessment of Mayer’s
coursework at Walden. The Board stated that the Walden psychology program “lacked
an organized sequence of study” and that the Walden coursework “lacked substantive
content, adequate assessment of student competence, and adequate evaluation of student
mastery through examinations and grading procedures.” In this regard, the Board
criticized the Hearing Officer for accepting what the Board characterized as Mayer’s
“biased, lay testimony” over the “expert” testimony of the Board’s witness, Dr. Fiore.
Finally, the Board expressed frustration with the Hearing Officer’s consideration of the
“outstanding recommendations” in Mayer’s file. The Board indicated that whether
Mayer meets the expectations of his peers is not relevant to the issue of whether
Walden’s program satisfies the Board’s residency and curricular rules.
¶23 Mayer sought judicial review of the Board’s decision. In affirming the Board, the
District Court concluded that the Board had not erred in accepting Dr. Fiore’s testimony
over Mayer’s testimony concerning the adequacy of Walden’s coursework. The District
Court acknowledged that Mayer could testify as to the content of his classes; however,
2
Although the Board did not specifically use the word “continuous,” the Board did cite
two pages of the hearing transcript where Dr. Fiore testified that Walden’s residency program is
inadequate “[b]ecause there isn’t continuous enrollment for a[n academic] year.”
14
the court reasoned that because the only doctoral-level courses he had ever taken were at
Walden, Mayer had nothing to compare those courses to and no basis for believing they
were adequate under the Board’s rules. As to residency, the District Court noted that the
record is unclear as to where and how Mayer’s residency was completed. Mayer testified
that he had completed his residency “at Walden.” Conversely, the Board claimed that the
residency had occurred at hotel conference rooms. Although the Board did not cite to the
record in support of this claim, Mayer did not challenge the assertion either. Thus, the
District Court inferred that Mayer’s residency did not take place “at the campus” of
Walden University. The court concluded that the Board was correct in determining that
Mayer had not satisfied the residency requirement. Mayer now appeals.
STANDARDS OF REVIEW
¶24 The Montana Board of Psychologists is considered an “agency” for purposes of
the Montana Administrative Procedure Act. Section 2-4-102(2), MCA. Judicial review
of a final agency decision in a contested case is confined to the record. Section
2-4-704(1), MCA. The district court reviews the agency decision to determine whether
the agency’s findings of fact are clearly erroneous and whether the agency correctly
interpreted the law. Ostergren v. Dept. of Revenue, 2004 MT 30, ¶ 11, 319 Mont. 405, 85
P.3d 738; Briese v. Mont. Pub. Employees’ Ret. Bd., 2012 MT 192, ¶ 11, 366 Mont. 148,
285 P.3d 550. We employ the same standards when reviewing a district court’s order
affirming or reversing an agency decision. Ostergren, ¶ 11; Briese, ¶ 11.
¶25 The Board’s final agency decision was based in part on the Board’s interpretations
of its own rules. Those rules were enacted pursuant to the authority of §§ 37-1-131(1)(a),
15
37-17-202(1), and 37-17-302(3)(c), MCA.3 The interpretation of an administrative rule is
a question of law. St. Personnel Div. v. Child Support Investigators, 2002 MT 46, ¶ 62,
308 Mont. 365, 43 P.3d 305. However, in determining whether an agency correctly
interpreted its own rules, procedures, or policies, the agency’s interpretation should be
afforded great weight, and the reviewing court should defer to that interpretation unless it
is plainly inconsistent with the spirit of the rule. Knowles v. State ex rel. Lindeen, 2009
MT 415, ¶ 22, 353 Mont. 507, 222 P.3d 595. The agency’s interpretation of the rule will
be sustained so long as it lies within the range of reasonable interpretation permitted by
the wording. Knowles, ¶ 22.
DISCUSSION
¶26 Did the Board have sufficient grounds for rejecting certain findings and
conclusions of the Hearing Officer?
¶27 Mayer contends that the Board misapplied the standards governing its review of
the Hearing Officer’s decision. In reviewing a hearing officer’s proposed decision, the
Board may reject or modify the conclusions of law and interpretations of administrative
rules, but the Board may not reject or modify the findings of fact unless the Board “first
determines from a review of the complete record and states with particularity in the order
that the findings of fact were not based upon competent substantial evidence or that the
proceedings on which the findings were based did not comply with essential requirements
of law.” Section 2-4-621(3), MCA. In reviewing findings of fact, the question is not
3
There has been no challenge in this case to the validity of the Board’s residency and
curricular rules. See Mont. Trout Unlimited v. Mont. Dept. of Nat. Resources & Conserv., 2006
MT 72, ¶ 36, 331 Mont. 483, 133 P.3d 224; § 2-4-305(6), MCA.
16
whether there is evidence to support different findings, but whether competent substantial
evidence supports the findings actually made. Knowles, ¶ 21; § 2-4-621(3), MCA.
Competent evidence is evidence that is relevant and admissible. Black’s Law Dictionary
635, 636, 639 (Bryan A. Garner ed., 9th ed., Thomson Reuters 2009). Substantial
evidence is “[e]vidence that a reasonable mind could accept as adequate to support a
conclusion; evidence beyond a scintilla.” Black’s Law Dictionary 640. The agency’s
experience, technical competence, and specialized knowledge may be utilized in the
evaluation of evidence. Section 2-4-612(7), MCA.
¶28 Mayer argues that it was not the Board’s role to weigh inconsistent testimony or to
substitute its view of the facts for those found by the Hearing Officer. He maintains that
there was competent substantial evidence to support the Hearing Officer’s findings and
that the Board, therefore, should be reversed. The Board responds that it complied with
§ 2-4-621(3), MCA. The Board maintains that the Hearing Officer misinterpreted the
Board’s rules and that his findings were not based upon competent substantial evidence.
The Board asserts that the only evidence offered to show that Walden’s program satisfied
the Board’s curricular requirements was Mayer’s own “self-interested lay” testimony,
which in the Board’s view was insufficient to rebut the “expert” testimony of the Board’s
witness, Dr. Fiore. The Board also argues that the residency requirement was not
satisfied because “the location of where the residency hours were earned was simply not
established by any evidence.”
¶29 Initially, we agree with Mayer that it is not appropriate for a board to substitute its
judgment for that of the hearing officer as to the credibility of witnesses and the weight to
17
be given their testimony. See St. Personnel Div., ¶ 26 (“The purpose of § 2-4-621(3),
MCA, is to prevent a reviewing body from substituting its judgment for that of the
factfinder.”). “A hearing examiner, when one is used, is in the unique position of hearing
and observing all testimony entered in the case.” Brackman v. Bd. of Nursing, 258 Mont.
200, 205, 851 P.2d 1055, 1058 (1993). In Brackman, as in the present case, none of the
board members had heard the evidence “live”; rather, they were limited to reviewing “a
cold record.” 258 Mont. at 205, 851 P.2d at 1058. Hence, we stated that “[t]he findings
of the hearing examiner, especially as to witness credibility, are therefore entitled to great
deference.” Brackman, 258 Mont. at 205-06, 851 P.2d at 1058 (citing § 2-4-621, MCA).
¶30 Similarly, we do not accept the Board’s argument that an applicant must present
expert testimony in order to overcome the testimony of the Board’s expert witness. A
blanket rule of this nature would usurp the hearing examiner’s role to judge the
credibility of witnesses and the weight to be given their testimony. It also would put
applicants in the position of always having to retain an expert in order to challenge the
Board’s denials of their applications. Of course, without expert testimony, an applicant
might fail to demonstrate that his or her application should have been granted. However,
that will depend on the particular facts of the case and the applicant’s specific
circumstances. There is no rule—statutory or administrative—mandating that an
applicant present expert testimony at the contested case hearing in order to challenge the
denial of his or her licensure application.
¶31 Nevertheless, we conclude the Board’s decision was properly affirmed. At the
outset, the residency issue is somewhat problematic. To meet the “one year’s academic
18
residency” requirement under the prior rule—which all parties agree is controlling—
Mayer had to earn 27 quarter hours “at the educational institution granting the doctoral
degree.” Admin. R. M. 24.189.301(2) (2009). The Board has interpreted “at the
educational institution” to mean physical presence, and this is a reasonable interpretation
of the rule. Knowles, ¶ 22. However, as noted, the record is not clear as to where and
how Mayer’s residency was completed. Mayer testified that he completed his residency
“at Walden,” while the Board claimed (without citing to the record) that the residency
occurred at unspecified hotel conference rooms. Furthermore, the Board has interpreted
the residency rule as requiring “continuous” enrollment, as explained in Dr. Fiore’s
testimony. Yet, while the amended rule makes this requirement explicit, nothing in the
prior rule gave applicants notice that the residency had to be continuous. In fact, the prior
rule could be read as indicating just the opposite, by permitting the residency to be earned
“on a full-time or part-time basis” over a period of “not less than nine months and not
more than 18 months.” Admin. R. M. 24.189.301(2)(a) (2009).
¶32 We need not resolve the parties’ arguments regarding the residency requirement,
however, because we conclude the Board’s denial of Mayer’s application is supported by
the curricular requirement. First, the Hearing Officer erred in rejecting Dr. Fiore’s
assessment of Mayer’s studies at Walden on the ground that she relied “too frequently”
on the APA standards and the practices at the University of Montana (whose psychology
program is APA-accredited). The Hearing Officer perceived the Board’s curricular
standards as being materially different from the APA standards. That was an incorrect
interpretation of the Board’s rules. Based on her familiarity with the Board’s standards
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and the history of their adoption, Dr. Fiore testified that the Board modeled its curricular
standards on the criteria developed by the APA’s Committee on Accreditation. Thus, the
reason Dr. Fiore did not attempt to distinguish between the Board’s rules and the APA
rules is that the two are, as she put it, “very similar.” The Board, through this witness’s
testimony, has construed its curricular standards as mirroring the APA criteria. In light of
Dr. Fiore’s unrefuted testimony, this interpretation is reasonable and the Hearing Officer
should have deferred to it. Knowles, ¶ 22.
¶33 Second, the Board’s rules require “an organized sequence of study . . . to provide
an integrated education experience appropriate to the professional practice of
psychology,” and the program must involve “formal graduate study” in psychology.
Admin. R. M. 24.189.604(1)(e), (i)(v)(A). Based on her familiarity with APA-accredited
graduate programs, Dr. Fiore testified that Walden’s courses were not organized in a
proper sequence of study and did not have the necessary breadth and depth expected of
graduate level courses. Although Mayer opined that his Walden courses were graduate
level courses, he admittedly had no knowledge of other graduate psychology programs.
Other than comparing his Walden classes to his undergraduate classes at the University
of Montana and his master’s program at Montana State University-Billings, he had no
frame of reference or basis for giving an opinion as to whether Walden’s courses were
organized in a proper sequence or whether they constituted “formal graduate study”
under the Board’s rule. The Hearing Officer’s finding that Walden’s courses satisfied the
Board’s curricular rules was, therefore, not based upon competent substantial evidence.
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CONCLUSION
¶34 The Board was permitted to reject or modify the Hearing Officer’s interpretations
of the Board’s rules and to reject or modify any finding of fact that was not based upon
competent substantial evidence. The Hearing Officer’s finding that Walden’s program
satisfied the Board’s curricular criteria was based on a misinterpretation of the Board’s
rules and was not supported by competent substantial evidence. Accordingly, the Board
did not misapply the standards of review in reinstating its denial of Mayer’s application,
and the District Court did not err in affirming the Board’s final agency decision.
¶35 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
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