- Court: Oregon Court of Appeals
- Area(s) of Law: Administrative Law
- Date Filed: 04-29-2015
- Case #: A152438
- Judge(s)/Court Below: Nakamoto, J. for the Court; Armstrong, P.J.; & Egan, J.
- Full Text Opinion
Petitioner, an anesthesiologist, received a complaint and notice of proposed disciplinary action from the Oregon Medical Board (the board), alleging he violated ORS 677.190(1)(a) when he engaged in unprofessional or dishonorable conduct by drinking one or two glasses of wine with dinner while on call. This conduct, the board said, was contrary to both the policy of Petitioner’s employer and recognized standards of ethics of the medical profession. At hearing, the board argued Petitioner engaged in unprofessional or undesirable conduct because he (1) violated his employer’s drug-free workplace policy and (2) by consuming alcohol while on call, which violated an underlying ethical obligation. Petitioner argued that he had insufficient notice of the board’s second basis. In a proposed order, the ALJ found Petitioner had sufficient notice, he did not violate the workplace drug-free policy and that Petitioner was not impaired by his alcohol consumption; therefore, the ALJ concluded, the board had no grounds to sanction Petitioner. The board’s final order included additional findings of a recognized community ethical standard that precluded consumption of alcohol by Petitioner while he was on call and imposed penalties and costs on Petitioner. On appeal, the Court held that because the board, in its complaint and notice, made reference to unprofessional or dishonorable conduct in ORS 677.188(4)(a), which includes three separate types of conduct deemed unprofessional or dishonorable, Petitioner was not given unequivocal notice of the basis on which the board intended to proceed. Additionally, the Court held that Petitioner was prejudiced by the board’s basis for its conclusion in the final order of two theories not argued at the contested hearing rather than Petitioner’s alleged violation of ORS 677.190(1)(a). Reversed.