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Fuller v. Department of Public Safety Standards and Training

Court of Appeals of Oregon

September 18, 2019

David S. FULLER, Petitioner,
v.
DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING, Respondent.

          Argued and submitted December 19, 2017.

          Department of Public Safety Standards and Training 16332.

          Wayne Mackeson argued the cause for petitioner. Also on the briefs was Wayne Mackeson, P.C.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Reversed and remanded.

         Case Summary: Petitioner seeks judicial review of a fnal order of the Department of Safety Standards and Training (DPSST) that revoked his certif-cations to be a police offcer. That order was based on DPSST's determination that petitioner had engaged in "dishonesty"-one of the categories of "discretionary disqualifying misconduct" under OAR 259-008-0070(4)(b). On appeal, petitioner raises two arguments: frst, he argues that DPSST legally erred in interpreting the term "dishonesty" as it is used in the rule, and second, he argues that DPSST failed to support its decision to revoke his certifcations with substantial reason. The Court of Appeals held that DPSST's order was unsupported by substantial reason, and therefore reversed and remanded on that basis.

         Reversed and remanded.

         [299 Or.App. 404] EGAN, C. J.

         Petitioner seeks judicial review of a final order of the Department of Public Safety Standards and Training (DPSST) that revoked his Basic, Intermediate, and Advanced Police Certifications. That order was based on DPSST's determination that petitioner had engaged in "dishonesty"- one of the categories of discretionary disqualifying misconduct under OAR 259-008-0070(4Xb). On appeal, petitioner raises two alternative arguments: first, that DPSST legally erred in interpreting the term "dishonesty" as it is used in the rule, and second, that DPSST failed to provide substantial reason for its decision to revoke his certifications. As explained below, we conclude that DPSST's order is unsupported by substantial reason. Therefore, we reverse and remand on that basis.

         Before describing the facts of this case, we set out the administrative framework under which DPSST sought to revoke petitioner's certifications. DPSST is authorized to revoke a public safety professional's certification based on a finding that the individual has failed to meet "the applicable minimum standards *** established under ORS 181A.410');">181A.410(1)(a) to (d)." ORS 181A.40 (2015).[1] "[T]o promote enforcement of law * * * by improving the competence of public safety personnel and their support staffs," the Board on Public Safety Standards and Training (board), in consultation with DPSST, is required to establish certain standards for certification. ORS 181A.410');">181A.410(1). Those include "reasonable minimum standards of physical, emotional, intellectual and moral fitness for public safety personnel." ORS 181A.410');">181A.410 (1)(a). DPSST recommended and the board established by administrative rule, those standards accordingly in OAR 259-008-0010 and OAR 259-008-0070.[2]

         In OAR 259-008-0010, the board established broad minimum standards in each category of physical, emotional, intellectual, and moral fitness. With regard to moral fitness, [299 Or.App. 405] which is the only standard at issue in this case, OAR 259-008-0010(6) provides:

"Moral fitness (Professional Fitness). All law enforcement officers must be of good moral fitness. For purposes of this standard, lack of good moral fitness includes, but is not limited to:
"(a) Mandatory disqualifying misconduct as described in OAR 259-008-0070(3); or "(b) Discretionary disqualifying misconduct as described in OAR 259-008-0070(4)."

         The difference between mandatory and discretionary disqualifying misconduct is that a finding of the former must result in the denial or revocation of a public safety officer's certification, while the latter gives DPS ST the discretion to deny or revoke the officer's certification. OAR 259-008-0070(3)(a); OAR 259-008-0070(4Xa). For both types of misconduct, OAR 259-008-0070(1) provides that

"[i]t is the responsibility of the Board to set the standards, and of the Department to uphold them, to ensure the highest levels of professionalism and discipline. These standards shall be upheld at all times unless the Board determines that neither the safety of the public nor respect of the profession is compromised."

         As the misconduct at issue in this case concerns "discretionary disqualifying misconduct," we narrow our examination to that rule accordingly. For purposes of the rule, "discretionary disqualifying misconduct includes misconduct falling within [several categories]." OAR 259-008-0070(4)(b). Category one is

"Dishonesty: Includes untruthfulness, dishonesty by admission or omission, deception, misrepresentation, falsification!.]"

OAR 259-008-0070(4)(b)(A).

         As noted above, when a public safety professional engages in discretionary disqualifying misconduct, DPSST "may deny or revoke" the individual's certification. OAR 259-008-0070(4)(a) (emphasis added). In order to exercise its discretion to do so, DPSST must provide the public safety professional with "written notice, and a hearing, [299 Or.App. 406] if requested."[3] OAR 259-008-0070(4)(a); see also OAR 259-008-0070(9)(e) ("Upon determination that the reason for denial or revocation is supported by factual data meeting the statutory and administrative rule requirements, a contested case notice will be prepared and served on the public safety professional.").

         With that statutory and administrative framework in mind, we turn to the relevant, undisputed facts and the procedural history of this case. In 2012, petitioner was employed by the Columbia County Sheriffs Office (CCSO) and held Basic, Intermediate, and Advanced Police Certifications. In March of 2012, petitioner attended a political fundraiser at a casino in Washington. To get there, petitioner drove from his home in Scappoose, Oregon, and boarded a bus in Longview, Washington, that took him the rest of the way. After spending the evening at the casino, which included gambling and drinking alcohol, petitioner rode the bus back to ...


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