Shawn C. KING, Petitioner,
DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING, Respondent.
Submitted March 8, 2016
of Public Safety Standards and Training 49251; A158053
Jennifer K. Chapman fled the briefs for petitioner.
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Judy C. Lucas, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
Summary: Petitioner seeks judicial review of a final order of
the Department of Public Safety Standards and Training
(DPSST) that revoked his Basic Corrections Certification
based on a determination that he had engaged in discretionary
disqualifying misconduct. Petitioner asserts that the
administrative law judge (ALJ) erred in deciding the case
without a hearing when she granted DPSST's motion for
summary determination. Held: The ALJ erred by
granting DPSST's motion for summary determination and
ordering the revocation of petitioner's corrections
officer certification without a hearing. A determination of
how the agency should exercise its discretion is
inappropriate on summary determination.
Or. 315] EGAN, J.
seeks judicial review of a final order of the Department of
Public Safety Standards and Training (DPSST) that revoked his
Basic Corrections Certification based on a determination that
petitioner had engaged in discretionary disqualifying
misconduct. Petitioner asserts that the administrative law
judge (ALJ) erred in deciding the case without a hearing when
she granted DPSST's motion for summary
determination. Reviewing for legal error the ALJ's
order granting summary determination, ORS 183.482(8)(a);
Hamlin v. PERB., 273 Or.App. 796, 798-99, 359 P.3d
581 (2015), we agree with petitioner and reverse and remand.
it is helpful in understanding this case, we begin by setting
out the administrative framework under which DPSST sought to
revoke petitioner's corrections certification. DPSST
established by rule reasonable minimum standards of physical,
emotional, intellectual, and moral fitness for corrections
officers. See former ORS 181.640(1)(a) (2013),
renumbered as ORS 181A.410 (2015) (requiring DPSST
to establish standards); OAR 259-008-0010 (setting forth
minimum standards for "law enforcement officers");
OAR 259-008-0005(16) (including corrections officers in
definition of "law enforcement officers"). DPSST
may suspend or revoke a corrections officer's
certification, after notice and, if requested, a hearing, if
it finds that the officer fails to meet those standards.
Former ORS 181.662(1)(c) (2013), renumbered
as ORS 181A.640(1)(c) (2015).
is responsible for setting and upholding the standards to
ensure the highest levels of professionalism and discipline,
and the "standards shall be upheld at all times unless
the Board determines that neither the safety of the public
[n]or respect of the profession is compromised." [289
Or. 316] OAR 259-008-0070(1). DPSST's moral fitness
standards provide that some conduct by corrections officers
requires mandatory revocation of a certification and other
conduct allows DPSST the discretion to choose to suspend or
revoke a certification. OAR 259-008-0070(3), (4). In this
case, there is no contention that petitioner's conduct
required a mandatory revocation.
corrections officer engages in discretionary disqualifying
misconduct, DPSST's rules provide that it "may deny
or revoke the certification of any public safety
professional ***, after written notice, and a hearing,
if requested, based upon a finding that" "[t]he
public safety professional * * * has engaged in conduct that
fails to meet the applicable minimum standards as described
in subsection (b), minimum training or the terms and
conditions established under ORS 181.640." OAR
259-008-0070 (4)(a)(B). Subsection (b) describes six
categories of discretionary disqualifying misconduct. OAR
259-008-0070 (4)(b). Two of those discretionary disqualifying
misconduct categories are relevant here:
"dishonesty" and "misconduct." Dishonesty
includes "untruthfulness, dishonesty by admission or
omission, deception, misrepresentation, falsification."
OAR 259-008-0070(4)(b)(A). Misconduct includes "conduct
that violates the law, practices or standards generally
followed in the Oregon public safety profession. By
definition, all criminal convictions meet the definition of
Misconduct within this category." OAR
259-008-0070(4)(b)(E). If DPSST concludes that there is a
reasonable basis to revoke the certification of a public
safety officer, it must provide the officer with notice and
the opportunity for a hearing before revoking the
certification. See ORS 183.415(2) ("In a
contested case, all parties shall be afforded an opportunity
for hearing after reasonable notice.").
that in mind, we turn to the background facts of this case.
The Department of Corrections (DOC) hired petitioner as a
corrections officer in 2008. In 2009 or 2010,
petitioner's brother and sister-in-law gave him their
dog, Sophie. They told petitioner that they would take Sophie
back at any time if petitioner could no longer care for her.
[289 Or. 317] In 2013, petitioner took Sophie to the Payette
City Police Department in Idaho, where petitioner lived, and
told a police officer that he had found the dog on that day
while she was roaming the city without a collar or other
identification. At the time, Sophie was emaciated and had an
injured leg. The police officer impounded the dog.
same day, petitioner told his brother that he had taken
Sophie to a shelter. The shelter and police were then
notified that petitioner had been the dog's owner and
caregiver for the preceding several years. Later that day,
petitioner called the police station and requested to speak
with the officer who had impounded Sophie. That officer
contacted petitioner the following day and asked him why he
had lied about finding the dog. Petitioner responded that he
had lied because he knew that the shelter would not have
taken the dog if he had told the truth that he was her owner.
Payette Police then issued a citation to petitioner for
providing false information to a law enforcement
officer. Petitioner pleaded guilty and was
convicted of the misdemeanor of providing false information
notified DOC of his citation. DOC investigated and issued
petitioner a written reprimand. DPSST's Corrections
Policy Committee (CPC) also reviewed petitioner's conduct
and conviction. During the CPC's process to determine
whether to initiate proceedings based on discretionary
disqualifying misconduct, petitioner was allowed the
opportunity to provide evidence of mitigating circumstances,
as required by OAR ...