Argued and Submitted January 15, 2014
Department of Public Safety Standards and Training. 35861.
Jennifer K. Chapman argued the cause for petitioner. On the opening brief was Jason M. Weyand. On the reply brief was Mariko A. Yoshioka.
Judy C. Lucas, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[265 Or.App. 94] Petitioner seeks judicial review of a final order of the Department of Public Safety Standards and Training (" DPSST" or " the department" ) that revoked the certificate that petitioner is required to maintain in order to continue to work as a corrections officer. Both a policy committee of the department and the Board of Public Safety Standards and Training (" the board" ) voted to revoke that certification on the ground that petitioner had violated the department's moral-fitness standards. The proceeding was commenced after a series of events involving petitioner, most notably a 2006 bar fight. Although petitioner was not a fight participant, he was arrested and charged with crimes relating to his interference with the on-scene police investigation that resulted. Petitioner contested the proposed revocation before an administrative law judge (ALJ) from the Office of Administrative Hearings. See ORS 183.635. The ALJ issued a proposed order, which made certain factual findings before concluding that petitioner had not violated the department's moral-fitness standards. The department did not accept that proposed order, and instead issued a final order that revoked petitioner's certification. Petitioner is before us challenging that final order. Because we agree that the department applied the wrong moral-fitness rule, we reverse and remand on that basis and do not address petitioner's other assignments of error, which include challenges to certain of the department's factual findings.
ORS 181.640 requires the board and the department to establish certification requirements for " public safety personnel."  As relevant here, " The department shall recommend and the board shall establish by rule
reasonable minimum standards of physical, emotional, intellectual and moral fitness for public safety personnel * * *." ORS 181.640(1)(a). The department is authorized to revoke the certification of any public safety officer if, after a hearing, it finds that " [t]he public safety officer * * * does not meet the applicable minimum standards, minimum training or the terms and conditions established under ORS 181.640(1)(a) to (d)." ORS 181.662(1)(c). As discussed below, the board [265 Or.App. 95] has, over the years, promulgated a series of rules regarding " moral fitness."
In October 2008, the department sent petitioner notice that it intended to revoke his basic certification. As relevant here, the notice proposed to do so on the ground that petitioner did not meet the department's moral-fitness standards. At the time of that notice, the moral-fitness rules provided:
" Moral Fitness (Moral Character). All law enforcement officers must be of good moral fitness.
" (a) For purposes of this standard, lack of good moral fitness means conduct not restricted to those acts that reflect moral turpitude but rather extending to acts and conduct which would cause a reasonable person to have substantial doubts about the individual's honesty, fairness, respect for the rights of others, or for the laws of the state or the nation.
" (b) The following are indicators of a lack of good moral fitness;
" (A) Illegal conduct involving moral turpitude;
" (B) Conduct involving dishonesty, fraud, deceit, or misrepresentation;
" (C) Intentional deception or fraud or attempted deception or fraud in any application, examination, or other document for securing certification or eligibility for certification;
" (D) Conduct that is prejudicial to the administration of justice;
" (E) Conduct that adversely reflects on his or her fitness to perform as a law enforcement officer. Examples include but are not limited to: Intoxication while on duty, untruthfulness, unauthorized absences from duty not involving extenuating circumstances, or a history of personal habits off the job which would affect the officer's performance on the job which makes the officer both inefficient and otherwise unfit to render effective service because of [265 ...