Avalos v. NM Counseling ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 HOMER J. AVALOS,
3 Petitioner-Appellant.
4 v. NO. 30,611
5 NEW MEXICO COUNSELING and
6 THERAPY PRACTICE BOARD,
7 Respondent-Appellee,
8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
9 Barbara J. Vigil, District Judge
10 Brennan & Sullivan, P.A.
11 Joan M. Waters
12 Michael W. Brennan
13 Santa Fe, NM
14 for Appellant
15 Gary K. King, Attorney General
16 Mona N. Valicenti, Assistant Attorney General
17 Santa Fe, NM
18 for Appellee
19 MEMORANDUM OPINION
20 FRY, Judge.
1 The New Mexico Counseling and Therapy Practice Board (Board) revoked
2 Appellant Homer Avalos’s license to practice as a clinical mental health counselor
3 after it determined that Avalos had engaged in unprofessional conduct based on an
4 incident involving a sixteen-year-old female client. Avalos appealed the license
5 revocation to the district court, which affirmed the Board’s decision. We granted
6 Avalos’s petition for writ of certiorari to review the district court’s decision. We
7 affirm.
8 BACKGROUND
9 Avalos was licensed by the Board to practice as a clinical mental health
10 counselor and provided counseling and therapy services from his home office in
11 Chaparral, New Mexico. In October 2007, the Board received a formal complaint that
12 Avalos had allegedly inappropriately touched and sexually assaulted a sixteen-year-
13 old female client, Victim, while she was at his home office for a urinalysis test. Based
14 on the complaint, the Board issued a Notice of Contemplated Action (NCA) to Avalos
15 alleging that his conduct had violated the Counseling and Therapy Practice Act as well
16 as the code of ethics governing counselors and therapists, which justified the
17 suspension or revocation of his professional license. NMSA 1978, § 61-9A-26(A)(4)
18 (2005); 16.27.18 NMAC (3-20-95). Attached to the NCA were copies of the
19 complaint and incident reports from the local sheriff’s department that was dispatched
2
1 to Avalos’s home after Victim’s family called 911 on the night of the incident. In
2 addition to the factual details provided in these attached documents, the NCA itself
3 stated the following as the factual basis underlying the allegations:
4 According to [the] [i]ncident [r]eport, on [September] 25, 2007, the
5 Otero County Sheriff’s Department was dispatched to [Avalos’s
6 residence] in reference to a criminal sexual contact. The [i]ncident
7 [r]eport indicated that a 16 year [old] female reported that she went to the
8 business/residence of [Avalos] in order to submit to a urine test. The
9 female alleged that while at [Avalos’s] business/residence, [Avalos]
10 touched her inappropriately and sexually assaulted her. The [i]ncident
11 [r]eport also indicated that the alleged victim’s sister was a witness to the
12 incident. According to the alleged victim at the time of the incident
13 [Avalos’s] breath smelled of alcohol.
14 The NCA sought to impose discipline in accordance with Section 61-9A-
15 26(A)(4) of the Counseling and Therapy Practice Act , which authorizes the Board to
16 suspend, deny, or revoke a counselor’s license if the licensee is “guilty of
17 unprofessional or unethical conduct,” and with the code of ethics governing
18 counselors and therapists. Specifically, the NCA sought to impose discipline pursuant
19 to four administrative provisions: 16.27.18.16(B)(1) NMAC (7-1-04), which prohibits
20 licensees from engaging in “sexual intercourse, contact[,] or other physical intimacies”
21 with a client to whom the licensee has rendered counseling or therapy within the
22 previous 60 months; 16.27.18.16(D) NMAC, which prohibits licensees from
23 undertaking or continuing a professional relationship with a client when the licensee
24 is “impaired due to mental, emotional, physiological, or substance abuse conditions”;
3
1 16.27.18.16(A) NMAC, which prohibits licensees from misrepresenting their
2 credentials; and 16.27.18.12 NMAC (6-15-01), which generally concerns a licensee’s
3 obligation to act with professional integrity and competence as defined by law.
4 Procedural History
5 The Uniform Licensing Act (ULA), NMSA 1978, §§ 61-1-1 to -31 (1957, as
6 amended through 2003), provides the procedures that a professional licensing board
7 must follow when initiating actions against a licensee. Under the ULA, a licensee
8 must be served with an NCA and given an opportunity to have a hearing before a
9 board can take any action resulting in the suspension or revocation of a license.
10 Sections 61-1-3, -4. The ULA requires that hearings be conducted “either by the
11 board or, at the election of the board, by a hearing officer who may be a member or
12 employee of the board or any other person designated by the board in its discretion.”
13 Section 61-1-7(A).
14 In this case, Avalos requested a formal hearing, and the Board designated a
15 hearing officer to preside over the hearing. At the start of the hearing, the Board’s
16 administrative prosecutor informed the hearing officer that the Board was dismissing
17 the charges based on alleged misrepresentation of credentials. The hearing proceeded
18 as to all remaining charges in the NCA. Over the course of the two-day hearing, the
19 hearing officer heard testimony from several individuals including Victim’s sister and
4
1 mother, Deputy Jason Green and Detective Eduardo Medrano from the sheriff’s
2 department, the SANE nurse, and Board member Michael Maestas. Because Victim
3 was unable to be present at the hearing, the hearing officer admitted Victim’s
4 deposition testimony. Avalos and his office secretary also testified at the hearing.
5 Following the hearing, the hearing officer submitted his report to the Board.
6 The report consisted primarily of a summary of the procedural aspects of the hearing
7 as well as a detailed recitation of the testimony of each witness. The report ended
8 with the hearing officer’s conclusions and recommendations. The hearing officer
9 wrote that it was his “impression that the evidence of sexual touching is insufficient
10 to reach a preponderance in this case.” He found, however, “that there is a
11 preponderance of proof that [Avalos’s] treatment and intervention here deviated from
12 that expected of a licensee in accord [with 16.27.18.12 NMAC].” With regard to this
13 conclusion, the hearing officer noted Avalos’s use of questionable techniques in his
14 treatment of Victim, Avalos’s act of “allowing home/office visits by the teenage girls
15 as he was alone late at night while he was under the influence of either alcohol and/or
16 prescription drugs,” and Avalos’s “poor choices in employing [Victim’s sister].”
17 Based on the foregoing, the hearing officer recommended that Avalos’s license be
18 suspended for one year followed by two years’ supervised probation, and that he
19 undergo alcohol/drug treatment evaluation.
5
1 The hearing officer’s report was filed on October 9, 2009. A few weeks later,
2 the hearing officer supplemented his report with an addendum. The addendum
3 consisted entirely of findings of fact made by the hearing officer. We note that there
4 were no findings of fact provided in the hearing officer’s initial report.
5 The Board convened on November 3, 2009, to consider Avalos’s case. In its
6 final order, the Board adopted the hearing officer’s report and the findings of fact in
7 the addendum, with the exception of one finding that the Board modified. The Board
8 then made several additional findings of fact. The Board concluded that there was a
9 “preponderance of the evidence to support the allegations” made by Victim, that
10 Avalos’s conduct “violated applicable statutes and administrative regulations
11 governing the practice of counseling,” that there was a preponderance of the evidence
12 to show that Avalos “failed to show professional judgment in his interaction” with
13 Victim and her sister, and that there was sufficient evidence that Avalos “failed to
14 recognize the boundaries in his scope of practice.” The Board decided to permanently
15 revoke Avalos’s license and assessed a fine plus costs to be paid by Avalos.
16 Avalos appealed the Board’s final order to the district court pursuant to Rule
17 1-074 NMRA and Section 61-1-19 of the ULA, raising several arguments as to the
18 propriety of the Board’s actions in revoking his professional license. The district
19 court rejected Avalos’s arguments, determining that the Board’s decision was
6
1 “supported by substantial evidence in the record,” that the Board acted “within its
2 scope of authority and in accordance with law,” and that Avalos was “afforded all due
3 process [required] under the [ULA].” We granted Avalos’s petition for writ of
4 certiorari to review the district court’s decision pursuant to Rule 12-505 NMRA.
5 STANDARD OF REVIEW
6 In an administrative appeal of this type, we “conduct the same review of an
7 administrative order as the district court sitting in its appellate capacity, while at the
8 same time determining whether the district court erred in the first appeal.” Rio
9 Grande Chapter of the Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16,
10 133 N.M. 97, 61 P.3d 806. Applying the same standard of review that the district
11 court applied in this case, we determine whether the Board’s decision was arbitrary
12 and capricious, not supported by substantial evidence, or otherwise not in accordance
13 with law. See § 61-1-17 (providing that a person entitled to a hearing under the ULA
14 may obtain review of an adverse board decision pursuant to NMSA 1978, Section 39-
15 3-1.1 (1999), which grants district courts appellate jurisdiction to review agency
16 decisions); see § 39-3-1.1(D) (stating that a district court may set aside, reverse, or
17 remand a board’s final order if it determines that: “(1) the agency acted fraudulently,
18 arbitrarily, or capriciously; (2) the final decision was not supported by substantial
19 evidence; or (3) the agency did not act in accordance with law”).
7
1 DISCUSSION
2 Avalos raises six issues on appeal, arguing that (1) the Board improperly
3 reweighed the evidence and entered findings of fact specifically rejected by the
4 hearing officer; (2) the Board failed to familiarize itself with the record prior to taking
5 its final action; (3) the Board failed to comply with the Open Meetings Act, NMSA
6 1978, § 10-15-1 to -4 (1974, as amended through 2009); (4) there was insufficient
7 evidence to support findings that Avalos undertook a professional relationship while
8 under the influence of alcohol or drugs; (5) there were procedural due process
9 violations; and (6) there were improper ex parte communications between the hearing
10 officer and the Board.
11 Whether the Board’s Final Order Violated the ULA
12 Avalos’s primary argument on appeal is that the Board, after having delegated
13 the conduct of the hearing to a hearing officer, was prohibited from reweighing the
14 evidence and entering findings of fact specifically rejected by the hearing officer. We
15 are not persuaded by Avalos’s argument for two reasons.
16 First, we conclude that because the Board is responsible for issuing the final
17 administrative decision regarding license revocations, it is not bound by the hearing
18 officer’s findings of fact under the provisions of the ULA. In administrative
19 adjudications where a board appoints a hearing officer to preside over the hearing, the
8
1 ULA specifies that a hearing officer is only required to submit findings of fact in a
2 report to the board. Section 61-1-7(A) (providing that “[a] hearing officer shall,
3 within thirty days after any hearing, submit to the board a report setting forth his
4 findings of fact”). After the hearing officer’s report is submitted to the board, it is the
5 board that is charged with the task of rendering a decision and providing the findings
6 of fact and conclusions of law underlying that decision. See Section 61-1-13(A)
7 (“After a hearing has been completed, the members of the board shall proceed to
8 consider the case and as soon as practicable shall render their decision[.]”); see also
9 Section 61-1-16 (“The decision of the board shall contain findings of fact made by the
10 board; conclusions of law reached by the board; the order of the board based upon
11 these findings of fact and conclusions of law; and a statement informing the applicant
12 or licensee of his right to judicial review and the time within which such review must
13 be sought.”).
14 Thus, under the language of the ULA, it is clear that the board, and not the
15 hearing officer, is the ultimate decision maker with respect to agency adjudications.
16 The board has the express authority to enter findings of fact and is not bound by the
17 hearing officer’s findings of fact. Moreover, there is no statutory basis within the
18 ULA for a hearing officer to provide recommendations to the board and,
19 consequently, there is no basis for the board to give deference to the hearing officer’s
9
1 recommendations. However, we recognize the role of the hearing officer as the
2 individual who hears the evidence firsthand and observes the demeanor of the
3 witnesses as a means of assessing credibility. Thus, although the board is not bound
4 by the hearing officer’s findings, the board has the responsibility to familiarize itself
5 with the record, including the hearing officer’s findings and to provide a reasoned
6 basis for its final findings of fact and conclusions of law, especially where it has made
7 findings concerning witness credibility. Section 61-1-16; see also Bd. of Educ. of
8 Alamogordo Pub. Sch. Dist. No. 1 v. Jennings, 98 N.M. 602, 605, 651 P.2d 1037,
9 1040 (Ct. App. 1982) (holding that an agency is not bound by the recommendations
10 of its hearing officer, even on points turning on the credibility of witnesses), overruled
11 on other grounds by Bd. of Educ. of Melrose Mun. Sch. v. N.M. State Bd. of Educ., 106
12 N.M. 129, 740 P.2d 123 (Ct. App. 1987); see id. at 130, 740 P.2d at 125 (recognizing
13 that an agency may not arrive at a conclusion contrary to hearing examiner where
14 credibility is at issue without reviewing the entire record).
15 Avalos argues that even if the Board had the authority to issue its own findings
16 of fact, it is not allowed to ignore the hearing officer’s findings of fact and make its
17 own substitute findings of fact. Avalos argues that we should construe the role of the
18 Board here in the same manner as that of a disciplinary board overseeing proceedings
19 involving lawyers. There is no merit to Avalos’s argument based on our
10
1 determination that the Board has the sole authority to render a decision under the
2 ULA, and that decision will be upheld so long as it is not arbitrary or capricious,
3 unsupported by substantial evidence, or otherwise not in accordance with law.
4 Our second basis for rejecting Avalos’s argument is that his briefing
5 misconstrues the actions of the Board in this case with respect to the hearing officer’s
6 findings. After careful review of the record, we are unable to conclude that the Board
7 rejected the findings of fact entered by the hearing officer. As the district court noted
8 in its ruling, the Board’s final order adopted all of the hearing officer’s findings of
9 fact, with the exception of one finding, which the Board modified. The Board then
10 entered additional findings of fact and, based on our discussion above, it had the
11 authority to do so under the ULA.
12 Avalos argues that the hearing officer failed to find that inappropriate conduct
13 occurred while Victim was at his home on the evening of the incident. However, the
14 hearing officer entered specific findings of fact that Victim and her sister went to
15 Avalos’s home twice in the late evening hours of that night, that Avalos performed a
16 urinalysis test and stress test on Victim using bio feedback goggles, that Avalos asked
17 Victim questions and touched her while she was in the exam room with him, that
18 Victim’s sister opened the door to the exam room and saw Avalos touching her sister,
19 and that Victim’s sister observed that Avalos smelled of alcohol. The Board’s
11
1 additional findings were consistent with these findings entered by the hearing officer.
2 Even if that were not the case, the district court determined that the Board’s findings
3 were supported by substantial evidence, a determination that we affirm later in this
4 opinion to the extent that Avalos challenges it. Because the Board had the authority
5 to enter findings of fact in this case and was responsible for issuing the final decision
6 with respect to Avalos’s license, we conclude that the Board’s actions were not
7 improper.
8 We also reject Avalos’s argument that the Board failed to familiarize itself with
9 the record prior to entering its final order. Avalos contends that Board of Education
10 of Melrose Municipal Schools requires that an agency review all evidence, including
11 transcripts of the hearing, before it rejects the hearing officer’s factual findings. 106
12 N.M. at 130, 740 P.2d at 125. However, because we have already determined that is
13 not the factual scenario presented in this case, we conclude that Melrose is
14 inapplicable here. In addition, although the Board’s counsel stated during appellate
15 arguments before the district court that the Board did not review the hearing testimony
16 during the meeting at which it deliberated and voted to revoke Avalos’s license, we
17 are unable to ignore the Board’s statement in the final order that it “reviewed all [of]
18 the evidence taken at the hearing” and “familiarized itself with the record” before
19 reaching its decision. This was adequate to meet the requirements of the ULA, which
12
1 requires that all members of the Board who were not present throughout the hearing
2 to “familiarize themselves with the record, including the hearing officer’s report,
3 before participating in the decision.” Section 61-1-13(A). Even if we were to give
4 weight to the statement by the Board’s counsel, there is nothing in the record to
5 indicate that the members of the Board did not each review the evidence, including the
6 hearing testimony, prior to the meeting.
7 Moreover, we indulge a presumption in the regularity of the Board’s actions.
8 See State ex rel. Reynolds v. Aamodt, 111 N.M. 4, 6, 800 P.2d 1061, 1063 (1990) (“On
9 review of the acts or orders of administrative bodies, the courts will presume, among
10 other things, that the administrative action is correct and that the orders and decisions
11 of the administrative body are valid and reasonable; presumptions will not be indulged
12 against the regularity of the administrative agency’s action.” (internal quotation marks
13 and citation omitted)). We conclude that the Board’s final order complied with the
14 requirements of the ULA.
15 Open Meetings Act
16 Avalos contends that the Board’s meeting on November 3, 2009, at which the
17 Board voted to revoke Avalos’s license, failed to comply with the Open Meetings Act.
18 Avalos’s primary argument is that neither he nor his counsel were given individual
19 notice of the Board’s meeting.
13
1 It is well established that “[p]rocedural due process requires notice and an
2 opportunity to be heard prior to a deprivation of a protected liberty or property
3 interest” such as a license to practice a profession. Mills v. N.M. State Bd. of
4 Psychologist Exam’rs, 1997-NMSC-028, ¶¶ 13-15, 123 N.M. 421, 941 P.2d 502. The
5 ULA specifically provides that individuals whose licenses are subject to revocation
6 are entitled to notice through the issuance of an NCA and an opportunity to be heard.
7 Sections 61-1-3, -4(D). All hearings under the ULA are required to be open to the
8 public, although the Board or hearing officer may elect to hold a closed hearing under
9 limited circumstances. Section 61-1-7(B). With regard to specific hearing
10 requirements, the ULA provides that a licensee shall be afforded the right to
11 representation by counsel, to present evidence, to examine all opposing witnesses,
12 take depositions, and seek discovery of relevant evidence. Section 61-1-8. Following
13 the hearing, a quorum of the Board is required to render a decision containing specific
14 content and to provide notice of the decision to the licensee either personally or by
15 certified mail. Sections 61-1-5, -13, -15.
16 In the present case, it is undisputed that Avalos received notice of the
17 allegations against him in the NCA and that he was represented by legal counsel at the
18 hearing, where he had an opportunity to present evidence and examine opposing
19 witnesses before a hearing officer. Thus, it is readily apparent that there was no
14
1 procedural due process violation under the ULA at either the initial notice or hearing
2 stage of the administrative proceedings against Avalos. See Mills, 1997-NMSC-028,
3 ¶ 14 (noting that the specific requirements of procedural due process depend on the
4 facts of each case and can “encompass any number of the following components: (1)
5 notice of the basis for the governmental action[,] (2) a neutral decision maker[,] (3)
6 the opportunity to orally present a case[,] (4) the opportunity to present evidence and
7 witnesses[,] (5) the opportunity to cross-examine witnesses[,] (6) the right to have an
8 attorney present at the hearing[,] and (7) a decision based on the evidence presented
9 at the hearing accompanied by an explanation of the decision”).
10 On appeal, Avalos challenges the sufficiency of the notice issued by the Board
11 with respect to the final stage of the administrative proceedings, the November 2009
12 meeting at which the Board voted to revoke his license. He contends that the Board
13 failed to comply with the Open Meetings Act by not providing him with individual
14 notice of this meeting. The Board does not dispute that it did not provide individual
15 notice to Avalos of the November meeting; however, it argues that the publication
16 notice it provided sufficiently complied with the Open Meetings Act. We agree with
17 the Board that there was no violation of the Open Meetings Act.
18 The Open Meetings Act requires all final actions on the revocation of a license
19 to be taken at an open meeting by a quorum of the board. Section 10-15-1(D); Section
15
1 10-15-1(H)(1). The Open Meetings Act requires that the meetings be held “only after
2 reasonable notice to the public” is given. Section 10-15-1(D) (emphasis added). In
3 this case, the Board published notice of the meeting in a newspaper of general
4 circulation twelve days prior to the meeting. We conclude that this notice sufficiently
5 complied with Section 10-15-1(D). Avalos had already been afforded notice and an
6 opportunity to be heard based on the requirements of the ULA, and we conclude that
7 there was no additional notice requirement based on the Open Meetings Act.
8 To the extent that Avalos argues that his inability to attend the Board’s final
9 meeting prevented him from confirming whether the Board conducted the meeting in
10 compliance with the Open Meetings Act, we are not persuaded. Under the Open
11 Meetings Act, we apply a presumption that the Board held the meeting in accordance
12 with its requirements. Section 10-15-3(A). Moreover, although Avalos raises
13 arguments regarding the propriety of the Board’s actions, there is no evidence in the
14 record that he followed the proper procedure for asserting a violation of the Open
15 Meetings Act. See § 10-15-3(B) (requiring that an individual seeking enforcement of
16 the Open Meetings Act in the district court first provide “written notice of the claimed
17 violation to the public body and that the public body has denied or not acted on the
18 claim within fifteen days of receiving it”). We therefore decline to address these
19 issues.
16
1 Substantial Evidence
2 Avalos argues that there was insufficient evidence to support the Board’s
3 decision to the extent that the decision was based on findings that he was impaired by
4 drugs or alcohol during the alleged incident with Victim. Avalos essentially contends
5 that there was no evidence to support the NCA charge that Avalos violated
6 16.27.18.16(D) NMAC, which prohibits licensees from undertaking or continuing a
7 professional relationship with a client when the licensee is “impaired due to mental,
8 emotional, physiological, or substance abuse conditions.”
9 Substantial evidence supporting an administrative agency’s final action is
10 “evidence that a reasonable mind would regard as adequate to support a conclusion.”
11 Regents of the Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 17, 125
12 N.M. 401, 962 P.2d 1236. In conducting our review, we review the whole record,
13 considering both favorable and unfavorable evidence in the light most favorable to the
14 Board’s decision. See Romero v. Bd. of Cnty. Comm’rs, 2007-NMCA-004, ¶ 12, 140
15 N.M. 848, 149 P.3d 945; see also Grine v. Peabody Natural Res., 2006-NMSC-031,
16 ¶ 28, 140 N.M. 30, 139 P.3d 190. We do not substitute our judgment for that of the
17 agency, and “we only evaluate whether the record supports the result reached, not
18 whether a different result could have been reached.” Romero, 2007-NMCA-004, ¶ 12
19 (internal quotation marks and citation omitted).
17
1 Avalos’s challenge to the sufficiency of the evidence centers around the hearing
2 officer’s report, and he contends that the hearing officer entered no factual findings
3 that Avalos was impaired at the time he saw Victim on September 25, 2007. Our
4 review on appeal, however, is concerned with the factual findings entered by the
5 decision-making entity in this case, which is the Board. Although we consider the
6 hearing officer’s report during our whole record review of the Board’s factual
7 findings, the question ultimately is whether there was sufficient evidence to support
8 the Board’s findings regarding Avalos’s impairment. In addition, Avalos’s assertion
9 that the hearing officer failed to enter findings concerning impairment is incorrect
10 because the hearing officer specifically found the following: (1) “[Victim’s sister]
11 observed that [Avalos] smelled of alcohol” while he was in the exam room with
12 Victim, (2) Deputy Green observed Avalos “to be nervous and oblivious to what was
13 going on around him” and noted “a strong odor of alcohol emitting from [Avalos’s]
14 breath,” and (3) Avalos “took a Vicodin sometime during the evening” of the incident.
15 Moreover, the hearing officer included as one of his conclusions that Avalos “allowed
16 professional boundaries to be blurred by . . . allowing home/office visits by the
17 teenage girls [Victim and her sister] as he was alone at night while he was under the
18 influence of either alcohol and/or prescription drugs.”
18
1 Consistent with the hearing officer’s report, the Board specifically found that
2 Avalos’s breath smelled of alcohol when Victim and her sister were at his home, that
3 Deputy Green noticed “a strong odor of alcohol in the air and on [Avalos’s] breath”
4 when he was dispatched to Avalos’s residence, and that Deputy Green “observed open
5 bottles of Coors Light throughout the residence and noticed that [Avalos] was
6 extremely nervous, fidgety with slurred speech and bloodshot eyes, appearing
7 intoxicated.”
8 Based on our review of the record, we conclude that there was sufficient
9 evidence to support the Board’s findings. Victim’s videotaped deposition included
10 testimony that she could smell alcohol on Avalos’s breath when he was asking her
11 questions during the alleged incident. Victim’s sister testified that Avalos smelled like
12 alcohol and that she could smell the alcohol as soon she walked in. In addition,
13 Deputy Green testified that he smelled an odor of alcohol in the residence and from
14 Avalos when he was dispatched to Avalos’s residence following the incident, that
15 there were open cans of beer in Avalos’s residence, and that Avalos exhibited what
16 he considered to be signs of intoxication including bloodshot eyes and slurred speech.
17 All of the foregoing is evidence that a reasonable mind would regard as adequate to
18 support a conclusion that Avalos undertook a professional relationship while
19
1 “impaired due to mental, emotional, physiological, or substance abuse conditions.”
2 See 16.27.18.16(D) NMAC.
3 Alleged Procedural Due Process Violations
4 Avalos contends that because the NCA did not include any allegations
5 concerning dual relationships, his procedural due process rights were violated to the
6 extent the Board determined that he engaged in a prohibited dual relationship with
7 Victim’s sister. See 16.27.18.16(B)(2) NMAC (prohibiting a licensee from entering
8 into a “financial or other potentially exploitive relationship” with a former client to
9 whom the licensee has rendered counseling within the previous 60 months). Avalos
10 fails to point to any specific findings or conclusions made by the Board regarding dual
11 relationships. Our review of the Board’s final order confirms that the Board did not
12 in fact enter any factual findings or conclusions concerning dual relationships or
13 Avalos’s alleged prior interactions with Victim’s sister. Although dual-relationship
14 testimony was elicited at the hearing and later included in the hearing officer’s
15 findings, the Board evidently did not rely on this testimony or findings in rendering
16 its decision. Thus, we are unconvinced that there was a violation of Avalos’s
17 procedural due process rights on this basis. Furthermore, given the lack of any
18 findings by the Board on this issue, we do not consider Avalos’s subsequent argument
19 that there was insufficient evidence to support findings concerning dual relationships.
20
1 Avalos also argues that the Board’s final decision should be reversed to the
2 extent it was based on conclusions that he made “poor choices” in intervening in prior
3 incidents at Victim’s home and used “questionable techniques” in his treatment of
4 Victim. Avalos likewise argues that the NCA did not give him notice of the factual
5 allegations underlying these conclusions and that there was no evidence that Avalos
6 violated any statute or rule in his treatment practices. Initially, we note that the
7 conclusions Avalos refers to were made in the hearing officer’s report, not in the
8 Board’s final order. The Board did, however, enter findings concerning a urinalysis
9 test and stress release therapy performed on Victim by Avalos, during which the
10 improper sexual contact occurred, as well as a previous incident where Avalos went
11 to Victim’s residence and intervened in a dispute involving Victim’s boyfriend and
12 her family. We construe Avalos’s general argument to be that the Board failed to
13 provide him of adequate notice in the NCA of allegations concerning his treatment
14 practices and that there was insufficient evidence showing that his practice methods
15 violated any applicable statutes or administrative regulations governing the practice
16 of counseling.
17 To the extent that Avalos argues that he was not given proper notice in the NCA
18 of allegations concerning his treatment practices, we are not persuaded. The ULA
19 provides that an NCA shall describe the “general nature of the evidence” that, if not
21
1 rebutted or explained, would justify the Board in taking the contemplated action.
2 Section 61-1-4(D). The NCA “serves the same function as a complaint in a civil case,
3 affording notice to the party against whom relief is sought of the facts alleged to
4 justify the relief, but not going into extensive evidentiary detail in support of those
5 facts.” Weiss v. N.M. Bd. of Dentistry, 110 N.M. 574, 581, 798 P.2d 175, 182 (1990);
6 see Oden v. N.M. Regulation & Licensing Dep’t, 1996-NMSC-022, ¶ 15, 121 N.M.
7 670, 916 P.2d 1337 (referring to notice pleading requirements of the NCA).
8 In this case, the NCA described the general nature of allegations made by
9 Victim and included as attachments the complaint filed with the state Regulations and
10 Licensing Department as well as three incident reports filed by officers with the Otero
11 County Sheriff’s Department. The NCA also specified the administrative regulations
12 that Avalos had allegedly violated, all of which touched on requirements that licensees
13 behave with professional competence.
14 We conclude that the NCA was sufficient to apprise Avalos of the nature of the
15 allegations against him. Given the detailed fact-specific nature of the attachments,
16 Avalos was aware that the allegations of improper sexual contact arose during a
17 urinalysis test and stress therapy performed by him on Victim at his home office in the
18 late evening hours of September 25, 2007. Avalos was thus given adequate notice
19 through the NCA that he might be questioned at the hearing regarding his treatment
22
1 practices on the evening of the incident. See N.M. State Bd. of Psychologist Exam’rs
2 v. Land, 2003-NMCA-034, ¶¶ 37-38, 133 N.M. 362, 62 P.3d 1244 (holding that
3 adequate notice was provided to psychologist where the NCA described the general
4 nature of the allegations and cited to applicable board rules and regulations because
5 this information afforded the psychologist sufficient notice that she might be asked
6 questions at the hearing regarding her treatment practices); see also Oden, 1996-
7 NMSC-022, ¶ 15 (determining that an NCA was sufficient to provide a licensee with
8 notice where the licensee “knew the general nature of the proceedings against him,
9 [which] is all that notice pleading requires”).
10 Avalos’s remaining argument also provides no basis for reversal of the Board’s
11 final order. We disagree with Avalos’s contention that there was no evidence in the
12 record that his treatment methods violated any statute or rule. Significantly, we note
13 that Avalos did not raise a sufficiency argument with respect to the Board’s
14 conclusion that there was a preponderance of evidence to support Victim’s allegations
15 that there was improper sexual contact while she was at Avalos’s home office for a
16 urinalysis test and stress release therapy. Thus, there was evidence to support a
17 conclusion that Avalos’s conduct violated administrative regulations. See
18 16.27.18.16(B)(1) NMAC (prohibiting licensees from engaging in “sexual intercourse,
23
1 contact, or other physical intimacies” with a client to whom the licensee has rendered
2 counseling or therapy within the previous 60 months).
3 Ex Parte Communication
4 Avalos argues that there were impermissible ex parte communications between
5 the hearing officer and the Board’s legal counsel during the time frame between the
6 hearing officer’s initial report and the filing of the addendum. Specifically, Avalos
7 alleges that after the hearing officer filed his initial report, the Board contacted the
8 state Regulation and Licensing Department (Department) and requested that the
9 Department ask the hearing officer to amend his report. Avalos alleges that this
10 communication led the hearing officer to file an addendum with findings of fact and
11 that neither the hearing officer nor the Board notified Avalos’s legal counsel of the
12 communication.
13 We disagree with Avalos’s contention that this was an impermissible ex parte
14 communication. At the hearings before the district court, the Board’s legal counsel
15 explained that the Board contacted the Department because the hearing officer’s initial
16 report failed to include any findings of fact, which the hearing officer is required to
17 submit to the Board under the ULA. See Section 61-1-7(A) (1993) (providing that
18 “[a] hearing officer shall, within thirty days after any hearing, submit to the board a
19 report setting forth his findings of fact”) (emphasis added). Stated another way, the
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1 hearing officer’s initial report, despite its detailed recitation of the testimony from
2 each witness, was inadequate as a matter of law due to the absence of findings of fact.
3 Under these circumstances, we conclude that it was not inappropriate for the Board
4 to contact the Department and request that the hearing officer submit his findings of
5 fact.
6 Furthermore, Avalos has not alleged, nor is there any evidence in the record,
7 that the communication between the Board and the Department concerned the merits
8 of the adjudication. See Colonias Dev. Council v. Rhino Envtl. Servs., Inc., 2003-
9 NMCA-141, ¶¶ 42-43, 134 N.M. 637, 81 P.3d 580 (determining that there were no
10 impermissible ex parte communications between an agency and its designated hearing
11 officer where the communications concerned scheduling and administrative matters,
12 and not the merits of the adjudication), overruled on other grounds by 2005-NMSC-
13 024, 138 N.M. 133, 117 P.3d 939. We therefore decline to reverse the Board’s final
14 order on this basis.
15 CONCLUSION
16 For the foregoing reasons, we affirm the final order of the district court and
17 uphold the Board’s revocation of Avalos’s license.
18 IT IS SO ORDERED.
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1
2 CYNTHIA A. FRY, Judge
3 WE CONCUR:
4
5 RODERICK T. KENNEDY, Judge
6
7 LINDA M. VANZI, Judge
26