and submitted November 15, 2016
review from the Court of Appeals BOLI No. 0114; CA
Jacqueline K amins, Multnomah County Attorney 's Offce,
Portland, argued the cause and fled the briefs for petitioner
on review. Also on the briefs were Jenny M. Madkour, County
Attorney for Multnomah County, Portland, and Katherine
Thomas, Multnomah County Attorney's Offce, Portland.
L. Whitehead, Assistant Attorney General, Salem, argued the
cause and fled the brief for respondents on review. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
E. O'Day, League of Oregon Cities, Salem, fled the briefs
for amici curiae, League of Oregon Cities and Association of
Oregon Counties. Also on the briefs was Rob Bovett,
Association of Oregon Counties, Salem.
Michael E. Rose, Portland, fled the brief for amicus cur-iae
Oregon Trial Lawyers Association.
Or. 762] Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Flynn, and Duncan, Justices, and Ortega, Judge of the
Court of Appeals, Justice pro tempore. [**]
administrative proceeding before the Bureau of Labor and
Industries to challenge the county's failure to apply
veterans' preference in hiring, BOLI found that the
county had failed to apply the veterans' preference and
awarded damages to the disabled veteran applicant. The Court
of Appeals affirmed the final order and the county petitioned
when a public employer hires or promotes individuals by means
of a process that does not include a score, it must establish
in advance a standard, regular procedure to apply a
preference for veterans; and (2) because the county had
failed to preserve its argument that BOLI erred in awarding
damages to the disabled veteran applicant, the court would
not reach that argument.
decision of the Court of Appeals is affirmed. The final order
of the Bureau of Labor and Industries is affirmed.
Or. 763] LANDAU, J.
408.230(2)(c) requires a public employer to "devise and
apply methods" of giving veterans and disabled veterans
"special consideration" in the employer's
hiring process when that hiring process does not rank
applicants by means of a score. The issue in this case is
whether the Multnomah County Sheriff's Office (county)
complied with that requirement when it failed to promote a
disabled veteran. The Bureau of Labor and Industries (BOLI)
concluded that the county did fail to comply with the
statute, as well as administrative rules that implement it.
BOLI ordered the county to comply with the law, to train its
staff, and to pay the disabled veteran $50, 000 in damages
for his emotional distress.
county appealed, challenging BOLI's conclusion that the
county had violated ORS 408.230(2)(c). It also challenged the
validity of the administrative rules that BOLI concluded the
county had violated and BOLI's authority to award damages
for emotional distress. The Court of Appeals affirmed.
Multnomah County Sheriffs Office v. Edwards, 277
Or.App. 540, 373 P.3d 1099 (2016). We conclude that BOLI
correctly construed ORS 408.230(2)(c) and that, given the
unchallenged findings in the agency's final order, there
is no basis for the county's contention that BOLI erred
in finding a violation of that statute. Our conclusion with
respect to the statutory violation obviates the need to
consider the validity of BOLI's administrative rules, so
we do not reach that issue. As for BOLI's authority to
award damages for emotional distress, the county failed to
preserve that argument, so we similarly decline to address
it. We therefore affirm the decision of the Court of Appeals
and the final order of BOLI.
summary of the relevant statutes and administrative rules
provides useful context. ORS 408.230(1) requires public
employers to grant a preference to veterans and disabled
veterans who apply for a vacant civil service position or
seek a promotion to a civil service position. The veteran or
disabled veteran applicant must meet the minimum
qualifications and any special qualifications for the
position. ORS 408.230(1)(b). In addition, the applicant must
successfully complete either an initial application screening
[361 Or. 764] process or a civil service test that the public
employer administers to establish eligibility for the
position. ORS 408.230(1) (a)(A).
408.230(2) then sets out how public employers must grant
preference for veterans and disabled veterans:
"(a) For an initial application screening used to
develop a list of persons for interviews, the employer shall
add five preference points to a veteran's score and 10
preference points to a disabled veteran's score.
"(b) For an application examination, given after the
initial application screening, that results in a score, the
employer shall add preference points to the total combined
examination score without allocating the points to any single
feature or part of the examination. The employer shall add
five preference points to a veteran's score and 10
preference points to a disabled veteran's score.
''(c) For an application examination that consists of
an interview, an evaluation of the veteran's performance,
experience or training, a supervisor's rating or any
other method of ranking an applicant that does not result in
a score, the employer shall give a preference to the veteran
or disabled veteran. An employer that uses an application
examination of the type described in this paragraph shall
devise and apply methods by which the employer gives special
consideration in the employers hiring decision to veterans
and disabled veterans."
statute thus provides three different ways that public
employers must grant preference for veterans and disabled
veteran applicants; the method of preference depends on the
type of selection process the public employer uses. First,
for any initial application screening that is used to develop
a list of applicants to interview, the employer must add a
specified number of points to the veteran's or disabled
veteran's score. ORS 408.230(2)(a). Second, for an
examination that is given after the initial application
screening and that results in a score, the employer must
again "add preference points to the total combined
examination score." ORS 408.230(2)(b). Third, if the
employer uses any other method of ranking that does not
result in a score, the employer must "devise and apply
methods by which the employer gives [361 Or. 765] special
consideration in the employer's hiring decision to
veterans and disabled veterans." ORS 408.230(2)(c).
makes clear that those preferences "are not a
requirement that the public employer appoint a veteran or
disabled veteran to a civil service position." ORS
408.230(3). Rather, the law provides that the employer is
required to appoint a veteran or disabled veteran only if the
results of the evaluation process, combined with the
preferences, "are equal to or higher than the results of
an application examination for an applicant who is not a
veteran or disabled veteran." ORS 408.230(4).
violation of the preference law is an unlawful employment
practice. ORS 408.230(6). A veteran or disabled veteran who
claims to be aggrieved by such an unlawful employment
practice may file a complaint with the Commissioner of BOLL
adopted administrative rules to enforce the requirements of
ORS 408.230. Among other things, those rules provide that,
"[a]t each stage of the application process, a public
employer will grant a preference to a veteran or disabled
veteran who successfully completes an initial application
screening or an application examination or a civil service
test the public employer administers to establish eligibility
for a vacant civil service position."
that background in mind, we turn to the facts of this case,
which we take from the uncontested findings in BOLI's
final order. The county posted an internal announcement
seeking applications for a promotion from sergeant to
lieutenant. Three individuals applied, each of whom met the
minimum qualifications for the position. One of the three
applicants, Edwards, qualified for preference as a disabled
announcement for the lieutenant position stated that the
county's hiring decision would be based on a letter of
interest, a resume, a "360 degree review"
consisting of information from "civilian[s]" and
coworkers, and an [361 Or. 766] internal command staff
interview. The ...