and Submitted January 27, 2016
of Public Safety Standards and Training 1001859
E. Yunker argued the cause for petitioner. With him on the
opening brief were Conrad E. Yunker, P.C., and Paul R.
Burgett. On the reply brief was Conrad E. Yunker.
C. Lucas, 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.
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
Summary: Petitioner seeks judicial review of an order of the
Department of Public Safety Standards and Training (DPSST)
determining that he committed two violations of the standards
of conduct governing private investigators and assessing
penalties, challenging the determinations regarding the
violations and contending that DPSST erred in not allowing
him to present his objections to the penalties at a hearing.
Held: Substantial evidence in the record supports
the agency's findings and its determination that
petitioner committed two violations. ORS 183.745(4) allows a
licensee to present objections to the imposition of a penalty
at a contested case hearing, and DPSST therefore erred in
failing to allow petitioner to present his objections to the
penalty at the hearing. But the error does not require
reversal because it did not cause petitioner prejudice, as he
had the opportunity to present his contentions, which were
exclusively legal, in his memorandum of exceptions fled with
SERCOMBE, P. J.
seeks judicial review of an order of the Department of Public
Safety Standards and Training (DPSST) determining that he
committed two violations of the standards of conduct
governing private investigators and assessing a penalty of
$500 for each violation pursuant to ORS 7O3.995(1)(a)
(authorizing assessment of a civil penalty of not more than
$500 for each offense) and an additional civil penalty of
$65, 655.24 for the costs of the proceeding pursuant to ORS
7O3.995(1)(b) (authorizing assessment of costs of
disciplinary proceedings as a civil penalty). We review
DPSST's order pursuant to ORS 183.482. We affirm the
agency's determination that petitioner committed two
violations as well as its assessment of penalties.
issued its final order after a hearing conducted by an
administrative law judge (AL J) for the Office of
Administrative Hearings. We draw our summary of the facts
from the agency's findings, which are not challenged on
judicial review. Petitioner is a licensed private
investigator with a long career in law enforcement. In 2008,
he retired from the Oregon Department of Justice, and he and
his wife, Amy Carroll, formed a private investigation firm,
Carroll Consulting LLC, with Amy Carroll serving as the CEO
and petitioner as Lead Consultant. In August 2009, Carroll
Consulting entered into negotiations with the Elections
Division of the Secretary of State regarding a pilot project
to monitor signature gathering activities in connection with
proposed ballot initiatives. The Secretary of State's
proposal required the use of eight to 10 private
investigators are subject to licensing by DPSST under ORS
chapter 703, which also includes requirements relating to
continuing education, standards of conduct, and discipline.
As defined in ORS 703.401(2), an "investigator" is
"a person who is a licensed investigator under ORS
703.430 and who engages in the business of obtaining or
furnishing, or who solicits or accepts employment to obtain
or furnish, information about:
"(a) Crimes or wrongs done or threatened against the
United States or any state or territory of the United States;
"(b) The identity, habits, conduct, business,
occupation, honesty, integrity, credibility, knowledge,
trustworthiness, efficiency, loyalty, activities, movements,
whereabouts, affiliations, associations, transactions, acts,
reputation or character of any person;
"(c) The location, disposition or recovery of lost or
"(d) The cause of or responsibility for fires, libels,
losses, accidents, damages or injuries to persons or
"(e) Evidence to be used before any court, board,
officer, referee, arbitrator or investigation
ORS 703.405 provides that "[a] person may not act as an
investigator or represent that the person is an investigator
unless that person is licensed under ORS 703.430."
703.450 describes the standards of conduct for licensed
investigators. As relevant here, ORS 703.450(4) requires that
a licensed investigator "[m]ay not commit an act that
reflects adversely on the investigator's honesty,
integrity, trustworthiness or fitness to engage in business
as an investigator." ORS 703.450(6) provides that a
licensed investigator "[m]ay not use unlicensed persons
to conduct investigative activities."
did not think that the work to be performed pursuant to the
contract with the Secretary of State met the legal criteria
for investigation or that the individuals performing the work
would need to be licensed investigators. But upon
petitioner's inquiry, DPSST advised petitioner that the
persons hired by petitioner to monitor signature gathering
activities were required to be licensed investigators.
Carroll Consulting agreed to those terms and entered into the
contract with the Secretary of State.
in turn, entered into an agreement with Carroll Consulting to
perform investigative services under contract as a
"Compliance Specialist." Carroll Consulting hired
several other investigators. It also contracted with another
private investigation firm, USO Consulting LLC, to assist in
carrying out the contract with the Secretary of State.
Consulting provided regular reports of its activities to the
Secretary of State and submitted invoices to the Secretary of
State for its services. In those invoices, the services of
investigators were described as "Compliance
Specialists" and billed at a rate of $40 per hour. Amy
Carroll's work was generally described as
"clerical" and billed at a rate of $10 per hour.
Petitioner testified that, within the ...