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Carroll v. Department of Public Safety Standards and Training

Court of Appeals of Oregon

May 17, 2017

Bill CARROLL, Petitioner,
v.
DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING, Respondent.

          Argued and Submitted January 27, 2016

         Department of Public Safety Standards and Training 1001859

          Conrad 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.

          Judy 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.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case 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 DPSST.

         Affirmed.

          SERCOMBE, P. J.

         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 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.

         DPSST 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.

         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 stolen property;
"(d) The cause of or responsibility for fires, libels, losses, accidents, damages or injuries to persons or property; or
"(e) Evidence to be used before any court, board, officer, referee, arbitrator or investigation committee."

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."

         ORS 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."

         Petitioner 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.[1] 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.

         Petitioner, 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.

         Carroll 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 ...


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