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King v. Department of Public Safety Standards and Training

Court of Appeals of Oregon

December 13, 2017

Shawn C. KING, Petitioner,
v.
DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING, Respondent.

          Submitted March 8, 2016

         Department of Public Safety Standards and Training 49251; A158053

          Jennifer K. Chapman fled the briefs for petitioner.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case 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.

         [289 Or. 315] EGAN, J.

         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 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.[1] 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.

         Because 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[2] (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).

         DPSST 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.

         If a corrections officer engages in discretionary disqualifying misconduct, DPSST's rules provide that it "may deny or revoke the certification of any public safety professional[3] ***, 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.").

         With 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.

         On that 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.[4] Petitioner pleaded guilty and was convicted of the misdemeanor of providing false information to police.

         Petitioner 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 ...


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