David S. FULLER, Petitioner,
DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING, Respondent.
and submitted December 19, 2017.
Department of Public Safety Standards and Training 16332.
Mackeson argued the cause for petitioner. Also on the briefs
was Wayne Mackeson, P.C.
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.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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.
Or.App. 404] EGAN, C. J.
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.
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). "[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.
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
"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)."
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
"[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."
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,
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." 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.").
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 ...