In Re Simone McNamer

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2024 VT 50

No. 23-AP-151

In re Simone McNamer Supreme Court

On Appeal from
Office of Professional Regulation

November Term, 2023

Michael S. Kupersmith, Appellate Officer

O. Whitman Smith of Mickenberg, Dunn, & Smith, PLC, Burlington, for Appellant.

Charity R. Clark, Attorney General, and Megan Campbell, Assistant Attorney General,
Montpelier, for Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. WAPLES, J. The Board of Allied Mental Health Practitioners denied Simone

McNamer’s application for a license to practice clinical mental-health counseling in Vermont. An

appellate officer (AO) from the Office of Professional Regulation (OPR) upheld the Board’s

decision. On appeal to this Court, applicant contends that the Board and AO erroneously curtailed

her efforts to demonstrate that the Board treated her differently than similarly situated candidates

in concluding that she did not satisfy the educational prerequisites for licensure. She also argues

that the agency failed to adequately justify this allegedly inconsistent interpretation of the Board’s

licensing regulations. We agree that comparator evidence may be relevant in an appeal from the

Board’s preliminary decision to deny a licensing application: though an applicant’s demonstration

that the Board applied a conflicting construction of its regulations to a prior candidate does not

bind the Board to that precedent, it does obligate the Board to reckon with it. In this case, however,
applicant failed to make the necessary threshold showing that the requirements at issue were

applied differently to any other candidate for licensure. Therefore, we affirm.

¶ 2. Under Vermont law, only individuals licensed by the Board may practice clinical

mental-health counseling.1 26 V.S.A. §§ 3262(a), 3263(a)(4). The Board reviews applications for

licensure under its Administrative Rules. See Admin. Rules of the Bd. of Allied Mental Health

Pracs. 1.1(a), Code of Vt. Rules 04 030 350 [hereinafter Board Rules],

https://sos.vermont.gov/media/0jyhuiuj/amh-rules-adopted-final-sos-jan-2015.pdf; see also 26

V.S.A. § 3263(a)(4), (b) (empowering Board to adopt rules necessary to perform licensing duties).

Among other things, these regulations require that applicants hold an “acceptable degree,”

meaning either: (1) a degree in clinical mental-health counseling conferred by a program

accredited by the Council for Accreditation of Counseling and Related Educational Programs; or

(2) a degree in counseling or a related field from a program that, while not accredited by the

Council, meets the additional specifications in Board Rule 3.8. See Board Rules 3.6(a), 3.7, 3.8.

¶ 3. At issue in this appeal is Rule 3.8(a), which requires that degrees in this second

category contain at least three graduate credits in “Diagnosis, Assessment and Treatment,” defined

as studies that “include the Diagnostic and Statistical Manual and its use in counseling[] and

assessing psychopathology.” Board Rule 3.8(a), (b); see generally Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) [hereinafter DSM]. In the

absence of these credits, a degree from a program not accredited by the Council is not an

“acceptable degree” and “cannot be used as the basis for licensure as a clinical mental health

counselor.” Board Rule 3.7(b), 3.8(c).

1
Clinical mental-health counseling is the provision, for consideration, of professional
counseling services “involving the application of principles of psychotherapy” and including
“diagnosis and treatment of mental conditions or psychiatric disabilities and emotional disorders.”
26 V.S.A. § 3261(2). “Psychotherapy,” in turn, “means the provision of treatment, diagnosis,
evaluation, or counseling services to individuals or groups” pursuant to “a systematic procedure
of psychotherapeutic intervention.” Id. § 3261(6).

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¶ 4. Applicant received a master’s degree from a Naropa University psychology

program that is not accredited by the Council. Accordingly, she sought to demonstrate that it

contained the three credits called for under Rule 3.8(a) in her September 2020 application for

licensure. She initially designated a single course for the Board’s consideration in connection with

this requirement. The Board issued a notification of preliminary denial in January 2021.2 It

explained that applicant’s graduate program did not include a three-credit course in diagnosis,

assessment, and treatment, and therefore was not an “acceptable degree” for purposes of licensure.

¶ 5. Applicant appealed, triggering a hearing before the Board at which she bore the

burden to show that the preliminary denial was in error. See Board Rule 1.6. Under Vermont’s

Administrative Procedure Act, the Rules of Evidence generally apply in such proceedings, and

“[i]rrelevant, immaterial, or unduly repetitious evidence” must be excluded. 3 V.S.A. § 810(1)

(mandating that Vermont Rules of Evidence be followed in contested cases, except that “[w]hen

necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not

admissible thereunder may be admitted . . . if it is of a type commonly relied upon by reasonably

prudent persons in the conduct of their affairs”); see also Admin. Rules of Prac. of the Off. of Pro.

Regul. 3.17(A), Code of Vt. Rules 04 030 005 [hereinafter OPR Rules],

https://sos.vermont.gov/media/osal1nmq/administrative-rules-of-practice.pdf (providing that

evidentiary matters at administrative hearings are governed by 3 V.S.A. § 810).

¶ 6. Applicant represented herself at the September 2021 hearing. This time, she

identified two different courses completed during her graduate degree and argued that, together,

they contained the three credits called for by Rule 3.8(a). In support of this contention, she testified

that she was aware the Board had granted a license to an earlier graduate of the same Naropa

University master’s program, J.L., after concluding that credits drawn from two nearly identical

classes combined to satisfy his diagnosis, assessment, and treatment requirement. Applicant

2
Though the notification was dated January 2020, it appears this was an error.
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requested that the Board accept aggregated credits from her two courses under the Rule, as she

alleged it had done in licensing J.L.

¶ 7. During the hearing, the presiding officer noted that applicant’s renewed approach

to demonstrating compliance with Rule 3.8(a) could implicate another provision of the Board’s

licensing regulations, Rule 3.11. See OPR Rule 3.16(A) (providing that board “may authorize its

legal counsel to preside at hearings for the purpose of making procedural and evidentiary rulings”).

Board Rule 3.11 states that the Board “will recognize a course as satisfying the requirements of

these rules if it is seen as a ‘stand alone course,’ that is one which clearly from its course description

covers required subject matter,” but “will not grant credit for ‘embedded content’ that is an element

or elements of study of an area which is only part of a larger course concentrating on a different

area of study.” The presiding officer also voiced several concerns about the relevance of evidence

about another candidate to the Board’s analysis of applicant’s eligibility for licensure.

¶ 8. Despite these statements, the Board continued to admit the evidence applicant

offered in support of her argument. The exhibits entered in the record included a document titled

“Education and Coursework Requirements Worksheet” that applicant described as related to J.L.’s

licensure, syllabi for the two courses she offered and the two courses the Board allegedly relied on

in J.L.’s case, and written analyses and charts applicant created itemizing the parallels between

them in granular detail.

¶ 9. Applicant first drew the Board’s attention to two course titles listed in the section

of the J.L. worksheet labeled “Diagnosis, Assessment and Treatment.” A handwritten notation

under the second course title read, “(needed to supplement the 1.0 credit in DSM—not a stand

alone DSM, but could supplement the Psychopath. course[]).” Applicant explained that this

reflected the Board’s analysis of J.L.’s coursework under Rule 3.8(a). She then began testifying

to the similarities between the two courses identified in the J.L. worksheet and the two she offered,

as set forth in the syllabi and comparison documents.

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¶ 10. The evidentiary ruling at issue in this appeal came approximately one hour and

twenty-five minutes into the hearing, after applicant finished addressing the first pair of courses

and moved on to the second. At this point, the Board excluded “further evidence about [J.L.’s]

coursework, beyond what [had] already been admitted” as “both cumulative and of dubious

relevance.” The presiding officer told applicant that the agency had noted her argument relative

to J.L. and asked that she focus, in the time remaining, on her own coursework and how it satisfied

the Rules.

¶ 11. After the hearing, the Board issued a written order affirming its preliminary denial.

It held that, pursuant to Rule 3.11, applicant was required to show that her degree included a single

graduate course containing at least three diagnosis, assessment, and treatment credits. This stand-

alone course requirement, it explained, was designed to “test[] for focused attention on specific

curricular content” pertaining to the “clinical application of the DSM.” The Board separately

analyzed the content of the two classes applicant offered and found that neither sufficiently covered

use of the DSM to diagnose, assess, and treat psychopathology in a clinical context to

independently provide the necessary credits. In Vermont, the Board noted, anyone may register

to provide psychotherapy, but a clinical mental-health counseling license certifies, among other

things, “that a counselor has completed a graduate counseling program with specific content

focused on Diagnosis, Assessment[,] and Treatment in a DSM framework—the common language

that knits together standards-based counseling, practice, psychology, and psychiatry.” Applicant’s

master’s degree, the Board concluded, was not such a program.

¶ 12. The Board’s final decision also addressed applicant’s evidence pertaining to J.L. It

recited her testimony about the basis for J.L.’s licensure and concluded that the worksheet she

offered “was not authenticated in any meaningful way,” though it appeared to contain the internal

“working notes” of a single, unidentified “Board member or staff analyzing J.L.’s application

materials.” Those notes pointed out multiple “unsatisfied content areas” and “could not possibly

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represent the final analysis leading to anyone’s conclusion J.L. should be licensed.” It therefore

found that the exhibit was “not a reliable or authoritative source of insight” into its “thinking or

analysis concerning J.L.’s license eligibility.” Finally, the Board indicated that its task was to

compare applicant’s application materials and supplemental evidence with the standards laid out

in the Rules, not the qualifications of others.

¶ 13. Applicant appealed to an AO, and an attorney entered an appearance on her behalf.

See 3 V.S.A. § 130a(a)(1) (providing that “party aggrieved by a final decision of a board” may

appeal to AO). As relevant here, applicant contended that the Board erred in interpreting Rule

3.11’s stand-alone course requirement to apply to Rule 3.8(a). She also challenged this

construction of the regulations as arbitrary and capricious in that it treated her differently than

similarly situated candidates like J.L., and argued that she was denied the opportunity to present

relevant evidence on this point.

¶ 14. In connection with this final argument, applicant moved for leave to offer additional

evidence under 3 V.S.A. § 130a(a)(2)(B) and its implementing regulation, OPR Rule 4.5. While

an intermediate appeal is otherwise conducted on the record created before the Board, these

provisions permit an AO, “[u]pon motion and good cause shown,” to “schedule a hearing to take

additional evidence on whether irregularities in procedure occurred” that are not reflected in that

record. OPR Rule 4.5; 3 V.S.A. § 130a(a)(2). Applicant represented that the Board allowed prior

candidates greater latitude to compare their proffered diagnosis, assessment, and treatment

coursework to classes completed by licensed clinical mental-health counselors. Specifically, she

alleged that the Board allowed C.P., a third graduate of the same Naropa University program, to

present extensive evidence regarding several other alumni to whom the Board had granted

licensure. Applicant contended that the Board’s exclusion of further evidence of J.L.’s coursework

therefore constituted a procedural irregularity not shown in the record and sought permission to

introduce evidence of the Board’s “previous willingness to accept evidence as to the coursework

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of successful applicants,” as well as evidence “demonstrating that her coursework is identical or

comparable to that of other applicants who were granted licensure by the Board” in order to show

that she was subject to disparate treatment.

¶ 15. The AO denied the motion, reasoning that the Board’s evidentiary ruling in

applicant’s case was a matter of record, and that she was “seeking not to introduce the irregularity

of excluding evidence, but rather the excluded evidence itself.” This, the AO concluded, was

impermissible under OPR Rule 4.5, which provides that at a hearing on alleged procedural

irregularities, the AO “is not authorized to rehear substantive evidence that otherwise was or could

have been raised” before the Board. Applicant moved to reconsider, explaining that the language

of her initial request was overbroad and she was seeking a hearing for the sole purpose of showing

that, in one or more other cases, the Board admitted evidence comparing an applicant’s coursework

to that of others granted licensure. The AO declined to reconsider his decision.

¶ 16. Following oral argument, the AO issued a written decision affirming the Board’s

interpretation of Rules 3.8(a) and 3.11. He also concluded that applicant failed to prove that she

was denied the opportunity to introduce relevant evidence or treated differently than J.L. for

several reasons: evidence regarding the licensure of similarly situated applicants was irrelevant to

the Board’s analysis; the Board appropriately excluded the proffered evidence as cumulative; and

applicant presented no competent evidence as to how J.L. satisfied the diagnosis, assessment, and

treatment requirement. This appeal followed. See 3 V.S.A. § 130a(c) (“A party aggrieved by a

decision of the appellate officer may appeal to the Supreme Court.”).

¶ 17. On appeal, applicant contends that both the Board and the AO erred in excluding

comparator evidence and failing to acknowledge and justify the allegedly inconsistent application

of Rules 3.8(a) and 3.11 to J.L.’s licensing application. See Comparator, Black’s Law Dictionary

(12th ed. 2024) (defining “comparator” as “[s]omething with which something else is compared;

esp., something or someone treated differently from something or someone else and used as

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evidence of unlawful treatment of the latter”). She does not seek review of the Board’s substantive

conclusion that, under those two Rules, her degree could be used toward licensure only if she

obtained three credits in diagnosis, assessment, and treatment through a single, stand-alone course.

Instead, she asks that we reverse and remand for further proceedings in which she may offer

additional comparator evidence.

¶ 18. This Court reviews the procedural and evidentiary rulings below for abuse of

discretion, which we will find only “where an agency has declined to exercise its discretion or has

done so on untenable or unreasonable grounds.” See In re Joyce, 2018 VT 90, ¶ 12, 208 Vt. 226,

197 A.3d 378 (explaining that standard of review for agency’s procedural rulings applies to

“decisions applying judicially adopted rules of procedure and practice” (quotation omitted)). We

consider applicant’s claims “on the basis of the records created before the board . . . and the [AO],”

3 V.S.A. § 130a(c), assessing them independently under the same standard applied by the AO, see

Devers-Scott v. Off. of Pro. Regul., 2007 VT 4, ¶ 4, 181 Vt. 248, 918 A.2d 230 (explaining that

where there is intermediate level of appeal from administrative body, we review under same

standard applied by intermediate tribunal, but “independent of” its conclusions because “[t]he

statute simply gives parties two appeals” (quotation omitted)). See also In re Bombardier, 2018

VT 11, ¶ 15, 206 Vt. 450, 182 A.3d 1165. Thus, we do not substitute our judgment for that of the

Board as to the weight of the evidence on questions of fact and will not disturb its decision absent

error prejudicing applicant’s substantial rights. See 3 V.S.A. § 130a(b) (setting forth standard for

AO review of Board decision).

¶ 19. Applicant first argues that the Board abused its discretion in excluding further

evidence of J.L.’s coursework as cumulative and of dubious relevance. She contends that evidence

that the Board applied its licensing requirements differently to similarly situated candidates was

relevant, and the Board’s ruling denied her a fair hearing because it prevented her from fully

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explaining the exhibits she had admitted and offering additional testimony that she was treated

differently than J.L.3

¶ 20. Applicant’s argument is founded on “ ‘[a] fundamental norm of administrative

procedure’ ” that requires agencies “ ‘to treat like cases alike.’ ” In re Stowe Cady Hill Solar,

LLC, 2018 VT 3, ¶ 21, 206 Vt. 430, 182 A.3d 53 (quoting Westar Energy, Inc. v. Fed. Energy

Regul. Comm’n, 473 F.3d 1239, 1241 (D.C. Cir. 2007)). Under this principle, the deference

traditionally accorded to an agency’s interpretation of its own promulgated regulation does not

extend to one that conflicts with its past construction of the same rule. See In re Conservation L.

Found., 2018 VT 42, ¶¶ 15-16, 207 Vt. 309, 188 A.3d 667. Agencies remain “free to depart rather

freely from their precedents” upon determining that previously declared law “is unsound and ought

not to be followed,” but cannot do so “on bases that are arbitrary, unreasonable, or discriminatory.”

In re Apple Hill Solar LLC, 2019 VT 64, ¶ 25, 211 Vt. 54, 219 A.3d 1295 (quotation omitted). As

a result, we will overturn an agency’s interpretation of its own rule if it conflicts with past

interpretations “without a legitimate justification.” In re Investigation to Review Avoided Costs

3
Although applicant never indicated to the Board that she intended to offer evidence as to
any comparator other than J.L., she now suggests that its ruling effectively excluded any such
evidence she may have offered. We do not reach her contention that, under these circumstances,
she was not required to make an express offer of proof to preserve this claim for appeal because
we find this characterization of the basis and scope of the Board’s ruling without merit. See V.R.E.
103(a)(2) (providing that “[e]rror may not be predicated on a ruling which . . . excludes evidence
unless . . . . the substance of the evidence was made known to the court by offer or was apparent
from the context within which questions were asked”). Applicant argues that, in light of the
presiding officer’s earlier conjecture about the general relevance of comparator evidence, the
exclusion of further evidence about J.L.’s coursework signaled that any other evidence of disparate
treatment would thereafter be rejected as categorically irrelevant. However, the Board’s ruling
applied only to additional evidence of J.L.’s coursework, and the contention that it carried broader
significance is not supported by the record. The presiding officer expressly designated it as an
evidentiary ruling and explained that the Board could overrule it—thus distinguishing it from his
prior equivocal statements. See 3 V.S.A. § 129(g)(3) (providing that boards may overrule any
procedural or evidentiary ruling of presiding officer); OPR Rule 1.1(L) (indicating that presiding
officer may be authorized by board to preside under 3 V.S.A. § 129(g)(3)). Through its subsequent
silence, the Board approved the ruling. There is simply no basis to conclude that it thereby held
that all comparator evidence was categorically irrelevant.

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that Serve as Prices for the Standard-Offer Program in 2020, 2021 VT 59, ¶ 22, 215 Vt. 247, 261

A.3d 656.

¶ 21. Because administrative reasoning is subject to challenge on these grounds, we agree

that comparator evidence may, in some circumstances, be relevant in a hearing on appeal from the

Board’s preliminary decision to deny a license application. In that proceeding, “[t]he applicant

bears the burden to show that the preliminary denial was in error,” Board Rule 1.6(b), and must be

afforded an “opportunity . . . to respond and present evidence and argument on all issues

involved,” 3 V.S.A. § 809(c). If the applicant shows that the Board applied its regulations

differently to another candidate, evidence of the other candidate’s qualifications may be relevant

to support the argument that it would be arbitrary, unreasonable, or discriminatory to depart from

precedent in the instant case. See V.R.E. 401 (“ ‘Relevant evidence’ means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”).

¶ 22. This is so because, confronted with this evidence, the Board must either reverse its

preliminary decision and adhere to its precedent or, in the alternative, articulate a legitimate

justification to abandon the prior interpretation. See Apple Hill Solar, 2019 VT 64, ¶ 25; see also

Consumer Credit Ins. Ass’n v. State, 149 Vt. 305, 308, 544 A.2d 1159, 1162 (1988) (affirming

agency where it “determined that it [was] appropriate to abandon its previous interpretation of the

statute” it administered and supplied “a reasoned analysis for the change within the area of its

special expertise”); Westar, 473 F.3d at 1243 (concluding that agency order was “arbitrary and

capricious in that it provides no basis in fact or in logic for the Commission’s refusal to treat

[appellant energy company] as it had treated” similarly situated energy company). Though an

applicant’s evidence of conflicting precedent does not necessarily bind the Board to its previous

approach, it does obligate the Board, “as a matter of administrative procedure,” to identify a valid

reason for departing from established law. Apple Hill Solar, 2019 VT 64, ¶ 25; see also Consumer

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Credit Ins. Ass’n, 149 Vt. at 308, 544 A.2d at 1161 (explaining that where agency determines its

earlier analysis is ill-founded, “neither estoppel nor stare decisis nor any other doctrine should

prevent it from creating new law and applying it prospectively” (quotation omitted)).

¶ 23. In this case, however, applicant failed to make a critical, threshold showing that the

Board accepted credits from two courses in licensing J.L. under Rule 3.8(a). She does not

challenge the Board’s findings, which indicate that the only evidence she offered on this point—

her testimony and the J.L. worksheet—was insufficient to establish the Board’s analysis in J.L.’s

case. While the Board described applicant’s testimony, it made no corresponding factual finding.

See Krupp v. Krupp, 126 Vt. 511, 514, 236 A.2d 653, 655 (1967) (explaining that recitation of

testimony “is not a finding of the facts contained in the testimony related and . . . cannot be so

construed”). It further concluded that the worksheet lacked meaningful authentication and, in any

event, did not represent the final analysis leading to the Board’s conclusion that J.L. had satisfied

Rule 3.8(a). Applicant does not argue that she wished to offer additional evidence of the Board’s

decision in J.L.’s case but was prevented from doing so by its evidentiary ruling. Indeed, at the

time the ruling was made, substantial hearing time had elapsed and there was no suggestion that

such evidence was forthcoming: applicant had indicated she did not intend to call J.L. as a witness,

explained that she intended to establish the basis for his licensure through her testimony and the

worksheet, and then moved on from his licensure and began comparing his courses to her own.

¶ 24. Evidence of J.L.’s coursework could only further applicant’s argument that she

satisfied the diagnosis, assessment, and treatment requirement with credits from two courses if she

first demonstrated that the Board accepted credits from two of J.L.’s courses under the same

provision. Because applicant bore the burden of proving that the Board erred in concluding she

was not eligible for licensure under Rule 3.8(a), it was incumbent on her to lay this foundation. In

its absence, the Board was not required to consider whether this precedent conflicted with its

analysis in applicant’s case and, if so, whether there was a legitimate justification to depart from

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its precedent. As a result, the Board did not err in failing to provide such justification, and further

evidence of J.L.’s coursework was, in fact, irrelevant to its analysis. See V.R.E. 401.

¶ 25. Moreover, applicant does not meaningfully rebut the Board’s conclusion that any

further evidence about J.L.’s coursework was cumulative. Like trial courts, agencies have broad

discretion to exclude even relevant evidence “if its probative value is substantially outweighed

by . . . considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” V.R.E. 403; see Pcolar v. Casella Waste Sys., Inc., 2012 VT 58, ¶ 9, 192 Vt. 343, 59

A.3d 702. Here, the Board’s ruling came after applicant finished testifying to the comparison

between the first set of courses and moved on to the second. Having considered applicant’s

testimony comparing the first set of courses and admitted the syllabi and comparison documents

she prepared, the Board had a basis to determine that similar testimony comparing the second set

of courses would be duplicative of the detailed information in the exhibits which had already been

admitted. See, e.g., Pcolar, 2012 VT 58, ¶ 9 (“The judge acted within her discretion when she

determined that a jury view of the actual garbage truck was needless, cumulative evidence to

demonstrate the mechanical operation of the arm—a point already supported by testimony and the

video.”). Given applicant’s failure to establish the basis for J.L.’s licensure and the cumulative

nature of the testimony at issue, she has not shown that the Board abused its discretion in asking

her to focus, in the time remaining, on the dispositive issue remaining before it—whether her own

coursework satisfied the Rules.

¶ 26. Applicant also argues that the AO erred in denying her motion to offer additional

evidence under 3 V.S.A. § 130a(a)(2)(B) and OPR Rule 4.5 to show that the Board did not limit

C.P.’s comparisons between his coursework and that of a fourth Naropa graduate, J.D.4 However,

4
Applicant moves to amend her principal brief in connection with this argument and
supplement the record on appeal with supporting documents: the affidavit of J.D. and a related
exhibit pertaining to J.D.’s coursework, which C.P. allegedly presented to the Board and testified
about during his hearing. We grant applicant’s motion to amend. However, we deny her motion
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the proposition that the Board may have allowed other candidates greater latitude to explore

comparator evidence in a separate case with unknown considerations of time, duplicative evidence,

or lack of foundation, is not alleged evidence of a procedural irregularity. To the contrary, the

applicable rules contemplate that the Board will exercise discretion “over the mode and order of

interrogating witnesses and presenting evidence” based on a constellation of competing

considerations. V.R.E. 611(a) (providing that hearing authority “shall exercise reasonable control

over the mode and order of interrogating witnesses and presenting evidence so as to [] make the

interrogation and presentation orderly and effective for the ascertainment of the truth . . . [and]

avoid needless consumption of time”); see In re Cent. Vt. Pub. Serv. Corp. for a 6.23% Increase

in Rates, 141 Vt. 284, 288, 449 A.2d 904, 907 (1982) (noting that agency “enjoys substantial

discretion in evidentiary matters”); In re White, 172 Vt. 335, 348, 779 A.2d 1264, 1274 (2001)

(“In fact, administrative bodies have greater latitude than courts in the nature of evidence that they

may consider.”). We therefore conclude that the AO did not abuse his discretion in denying the

motion because applicant did not make the showing of good cause required under OPR Rule 4.5.

¶ 27. Applicant has not shown that either the Board or the AO abused their discretion in

excluding evidence. Because applicant bore the burden of proving that the Board erred but did not

demonstrate that the Board licensed J.L. after concluding that credits from two of his courses

satisfied Rule 3.8(a), no justification for the alleged conflict was required. Applicant has not

identified a basis to disturb the decisions below.

Affirmed.

FOR THE COURT:

Associate Justice

to supplement because our review is limited to the record created below, and applicant did not file
the materials in question with the AO. 3 V.S.A. § 130a(c).
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