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IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 33143 GAIL S. ATER, ) ) Petitioner-Respondent, ) ) v. ) ) IDAHO BUREAU OF OCCUPATIONAL ) LICENSES, and IDAHO STATE BOARD OF ) PROFESSIONAL COUNSELORS AND ) MARRIAGE AND FAMILY THERAPISTS, ) ) ) Respondents-Appellants. )

Boise, May 2007 Term 2007 Opinion No. 78 Filed: May 23, 2007 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, for the County of Twin Falls. Hon. John K. Butler, District Judge. Order of the district court setting aside agency action is affirmed. Naylor & Hales, P.C., Boise, Idaho, for appellants. Carlton R. Ericson argued. Stephan, Kvanvig, Greenwood, Stone & Trainor, Twin Falls, Idaho, for respondent. Laird B. Stone argued. _____________________ JONES, Justice The Board of Professional Counselors and Marriage and Family Therapists ("Board"), a licensing board within the Idaho Bureau of Occupational Licenses, brought disciplinary proceedings against Gail Ater for allegedly violating certain provisions of the American Counseling Association Code of Ethics ("ACA Code"). The Board,

disregarding its hearing officer's recommendation, found violations and suspended Ater's license for one year. On appeal, the district court set aside the Board's order of

suspension and determined that remand was unnecessary. We affirm the district court's action.

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I. In April of 2002 Ater was treating R.H. as part of a court-ordered sex offender treatment program. On April 17, R.H. received permission from his parole officer to go out of state to visit his sick mother, provided he discuss his treatment with Ater before he left. Ater spoke with the parole officer, indicating he did not have a problem with R.H. leaving and that he would discuss the matter with R.H. at a scheduled group therapy session at 6:30 that evening. However, at about 2:30 p.m., R.H. arrived unannounced at Ater's office, which was also his home. Ater was in his office with a female friend when R.H. entered through the back door in an agitated state. Ater advised R.H. that he had agreed to allow him to leave but that R.H. would need to attend the group session that evening. After R.H. stated that he would not attend that evening's session, Ater told him that he needed to be there because he had missed a previous session. R.H. responded with profane and derogatory remarks aimed at Ater and left angrily. Ater followed R.H. into the hallway to inform him that he could not speak to him in such a manner and that R.H. needed to come to the evening session or run the risk of a parole violation. R.H. then physically attacked Ater but Ater pushed him away and put him into a headlock. The parties do not dispute that R.H. was the aggressor and that Ater acted in self-defense. In March of 2004 the Board filed an administrative complaint against Ater, alleging that he had violated certain provisions of the ACA Code. The Board appointed attorney Michelle Points as the hearing officer. After conducting an evidentiary hearing, Points issued her factual findings, legal conclusions and recommendation in December of 2004, concluding that Ater had not violated the ACA Code. In its order, the Board adopted all of Points' factual findings and legal conclusions, except for the conclusion that Ater had not violated the ACA Code by following R.H. into the hallway. The Board opined, "based upon its members' specialized knowledge and experience," that Ater's conduct "in following R.H. out of his office and verbally confronting [him] in his extremely agitated state" violated ACA Code sections A.1.a and A.5.a. The Board suspended Ater's license for one year but provided the suspension would be stayed if Ater agreed to practice under the supervision of a Board-approved counselor, pay a $2,000 fine and pay another $5,098.61 in costs and attorney fees. Ater appealed the Board's decision.

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The district court set aside the Board's order, concluding that the Board violated Ater's due process rights because: (1) it did not use its specialized knowledge and experience to evaluate the evidence but, instead, substituted that knowledge for the evidence presented; (2) it failed to articulate the standard Ater was alleged to have violated or to make findings as to how Ater violated any applicable standard; and (3) the record did not disclose the knowledge and experience upon which the Board based its decision and therefore the record did not contain substantial evidence to support the Board's decision. The district court also found that the Board acted arbitrarily and capriciously because it disregarded the evidence as presented and failed to articulate clear standards regarding what was meant by "personal needs" and the "welfare of the client" as used in the ACA Code. The district court awarded attorney fees to Ater pursuant to Idaho Code

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