Fuller v. Dept. of Public Safety Standards , 299 Or. App. 403 ( 2019 )

403
Argued and submitted December 19, 2017; reversed and remanded
September 18, 2019
David S. FULLER,
Petitioner,
v.
DEPARTMENT OF PUBLIC SAFETY
STANDARDS AND TRAINING,
Respondent.
Department of Public Safety Standards and Training
16332; A162539
452 P3d 450
Petitioner seeks judicial review of a final order of the Department of Safety
Standards and Training (DPSST) that revoked his certifications to be a police
officer. 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: first, 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 certifications with substantial reason. The
Court of Appeals held that DPSST’s order was unsupported by substantial rea-
son, and therefore reversed and remanded on that basis.
Reversed and remanded.
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.
EGAN, C. J.
Reversed and remanded.
404 Fuller v. Dept. of Public Safety Standards
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 miscon-
duct under OAR 259-008-0070(4)(b). 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 substan-
tial reason for its decision to revoke his certifications. As
explained below, we conclude that DPSST’s order is unsup-
ported 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 appli-
cable minimum standards * * * established under ORS
181A.410(1)(a) to (d).” ORS 181A.640 (2015).1 “[T]o promote
enforcement of law * * * by improving the competence of pub-
lic safety personnel and their support staffs,” the Board on
Public Safety Standards and Training (board), in consulta-
tion with DPSST, is required to establish certain standards
for certification. ORS 181A.410(1). Those include “reasonable
minimum standards of physical, emotional, intellectual and
moral fitness for public safety personnel.” ORS 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,
1
ORS 181.640 and ORS 181.410 were renumbered, respectively, as ORS
181A.640 and ORS 181A.410 in 2015. Because the relevant text of the statutes
are identical, we refer to the current versions throughout this opinion.
2
We cite the 2014 version of OAR 259-008-0010 and OAR 259-008-0070, in
effect at the time DPSST entered its final order. The rule has since been amended.
Cite as 299 Or App 403 (2019) 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 lim-
ited 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 dis-
qualifying 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 DPSST the discretion
to deny or revoke the officer’s certification. OAR 259-008-
0070(3)(a); OAR 259-008-0070(4)(a). For both types of mis-
conduct, 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 high-
est levels of professionalism and discipline. These stan-
dards shall be upheld at all times unless the Board deter-
mines 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 mis-
conduct falling within [several categories].” OAR 259-008-
0070(4)(b). Category one is
“Dishonesty: Includes untruthfulness, dishonesty by admis-
sion 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 exer-
cise its discretion to do so, DPSST must provide the pub-
lic safety professional with “written notice, and a hearing,
406 Fuller v. Dept. of Public Safety Standards
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 con-
tested case notice will be prepared and served on the public
safety professional.”).
With that statutory and administrative frame-
work 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 Sheriff’s Office
(CCSO) and held Basic, Intermediate, and Advanced Police
Certifications. In March of 2012, petitioner attended a polit-
ical 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 Longview where he got in his car to
drive home. On his drive home, petitioner crashed his car
into a ditch. He did not report the crash as an accident to
law enforcement.
CCSO subsequently opened an internal affairs
investigation based on allegations that petitioner had “vio-
lated the law by driving under the influence of intoxicants
and failing to report an accident.” During that investiga-
tion, Lieutenant Hald interviewed petitioner and asked him
if he had made any phone calls on the way back from the
casino on the bus. Petitioner said that he had, including one
to his daughter. Hald asked what petitioner had asked his
daughter. Petitioner responded that he was “[j]ust talking to
her” and “[didn’t] remember what [he] asked.”
In March of 2013, DPSST issued a notice of intent to
revoke petitioner’s police certifications based on allegations
of gross misconduct, misconduct, and dishonesty. Petitioner
requested a contested case hearing. At the contested case
3
Prior to issuing that written notice to the public safety professional,
OAR 259-008-0070(9) provides an additional procedural step that, “[i]f the
Department determines that a public safety professional may have engaged in
discretionary disqualifying misconduct listed in subsection (4), the case may
be presented to the Board, through a Policy Committee.” OAR 259-008-0070
(9)(c)(C).
Cite as 299 Or App 403 (2019) 407
hearing, petitioner was interviewed under oath by counsel
for DPSST. This time, petitioner gave different answers
when asked about his phone calls on the bus ride. Petitioner
testified that he had first called his wife because it was their
anniversary, and that he had called “just to talk to her and
let her know that [he] was on [his] way home.” Petitioner
testified that he had next called his daughter, “basically to
find out how mom was doing or how, you know, find out how
their evening went.” When asked why petitioner called his
daughter to ask how his wife was doing just after speaking
directly to his wife, he explained:
“I wanted to see what her mentality was since we
weren’t together for our anniversary, basically. That’s what
it was, just seeing if she was okay as far as she can tell me
one thing and tell my daughter something else[.]”
Counsel for DPSST later pressed petitioner about his previ-
ous answer during the internal affairs interview with Hald.
When petitioner was asked whether he had given “a truth-
ful and honest answer,” he admitted that he had not because
he “didn’t think it was [DPSST’s] business.”
Ultimately, DPSST issued a final order adopting
the ALJ’s proposed order and reversing DPSST’s 2013 notice
of intent to revoke. Because the notice did not include peti-
tioner’s deception and lack of cooperation during the Hald
interview as an allegation of misconduct, DPSST adopted
the ALJ’s determination that DPSST could not revoke peti-
tioner’s certifications based on its 2013 notice.
Shortly thereafter, in December 2014, DPSST issued
a new notice of intent to revoke petitioner’s certifications.
That notice told petitioner, in part:
“Your conduct involved Dishonesty. You lied during your
internal affairs interview about those issues as noted in
the [Police Policy Committee] Staff Report for this meeting,
and you admitted during your hearing that you lied. Your
conduct constitutes Dishonesty and is a separate and suffi-
cient basis to revoke your certifications.”
DPSST alleged five specific instances of “dishonesty,” includ-
ing the discrepancy between what petitioner told Hald and
what he said at the hearing regarding his phone call with
408 Fuller v. Dept. of Public Safety Standards
his daughter.4 Petitioner requested a contested case hearing,
and the parties filed cross-motions for summary determina-
tion. In his motion, petitioner argued that, by comparing the
answers he gave during the Hald interview to the ones he
gave at the hearing, it was clear that he was “truthful and
honest.” Therefore, petitioner argued, there was no genuine
issue as to any material fact; in other words, he contended
that the facts indisputably revealed that he was not dishon-
est. As a result, he argued that he was entitled to prevail as
a matter of law. DPSST filed a cross-motion for summary
determination, arguing that it was “undisputed based on
the facts in the record” that petitioner’s conduct during the
Hald interview fell within the meaning of “dishonesty,” as
provided in the rule, and that therefore, DPSST was enti-
tled to revoke his certifications as a matter of law. Petitioner
responded to DPSST’s motion, again arguing that there was
no evidence that he was dishonest, and specifically respond-
ing to the allegation regarding his phone call with his daugh-
ter by explaining that his “knowing” failure to disclose that
he did remember the purpose of the call was, as a matter
of law, not “dishonest,” because that information was “not
material.” According to DPSST, however, it was not required
to show that petitioner’s dishonesty had been material; peti-
tioner had demonstrated that he lacks the good moral fitness
required to be a law enforcement officer, and DPSST there-
fore had the discretion to revoke his certifications.
The ALJ ruled on the parties’ motions and issued a
proposed order, purporting to resolve three issues:
“1. Whether there is a genuine issue as to any material
fact and whether a party is entitled to a favorable ruling as
a matter of law. OAR 137-003-0580.
“2. Whether [petitioner] engaged in conduct involving dis-
honesty. OAR 259-008-0070(4)(b)(A).
“3. Whether DPSST should revoke [petitioner’s] basic,
intermediate and advanced police certifications. [ORS
181A.410(1); ORS 181A.640(1)(c);] OAR 259-008-0070(4).”
4
The other allegations of dishonesty related to (1) the number of alcoholic
drinks petitioner consumed, (2) his phone conversation with his wife, (3) the loca-
tions from which he purchased alcoholic beverages, and (4) the casino games he
played. The ALJ found that DPSST had failed to prove those allegations, and
they are not at issue on appeal.
Cite as 299 Or App 403 (2019) 409
Ultimately, the ALJ concluded that there was no genuine
issue of material fact that petitioner had engaged in dishon-
esty when he did not disclose to Hald, the internal affairs
investigator, that he did remember the telephone conversa-
tion with his daughter.5 The ALJ concluded, however, that
DPSST should not exercise its discretion to revoke peti-
tioner’s certifications. The ALJ explained her reasoning in
the proposed order. First, the ALJ agreed with DPSST that
“it is the act of dishonesty that gives rise to a finding of dis-
qualifying misconduct, not the substance of the dishonesty,”
because “nothing in [the] text [of the rule] would indicate
that materiality of a false statement * * * control[s] whether
it arises to dishonesty.” Thus, because petitioner “was dis-
honest in his response to Hald when he falsely claimed that
he could not recollect his conversation with his daughter,”
the ALJ concluded that petitioner had engaged in discre-
tionary disqualifying misconduct under OAR 259-008-0070
(4)(b)(A). As a result of that “dishonesty,” the ALJ recog-
nized that DPSST was statutorily authorized to revoke
petitioner’s certifications. However, the ALJ recommended
against revocation because it was a “harsh sanction” that
the ALJ determined to be inappropriate after taking into
account all of the relevant evidence.6
5
The ALJ’s proposed order contains a section labeled “Findings of Fact.”
However, when an agency adjudicator resolves a contested case proceeding on a
motion for summary determination, the agency cannot engage in factfinding. See
King v. Dept. of Public Safety Standards, 289 Or App 314, 319 n 5, 412 P3d 1183
(2017), rev den, 363 Or 104 (2018). Therefore, we understand the ALJ’s statement
of the facts to be a statement of the undisputed facts, rather than a statement of
factual findings.
6
The ALJ explained:
“Although DPSST proved that [petitioner] engaged in dishonest conduct,
DPSST failed to establish all of its allegations of dishonesty. DPSST only
established one of the five allegations of dishonesty—that [petitioner] was
dishonest when he claimed not to remember his conversation with his daugh-
ter. As explained * * * the materiality of the statement is irrelevant in the
determination of the honesty of the statement. However, it reflects on the
degree of the deplorable nature of the dishonest conduct. * * * [H]e did not pro-
vide a dishonest answer to Hald in order to evade a finding that he committed
a crime or violation, an action that would be inexcusable [sic] reprehensi-
ble from a public safety officer. Instead, he provided the dishonest answer
because it concerned his personal life with his family. Finally, [petitioner]
worked for CCSO for approximately 29 years at the time of the Hald inter-
view. He had a long career as a public safety professional with no evidence of
prior sanctions for any disqualifying conduct.”
410 Fuller v. Dept. of Public Safety Standards
DPSST made substantial modifications to the ALJ’s
proposed order and issued amended rulings on the motions
for summary determination.7 DPSST deleted portions of
the ALJ’s reasoning, as well as her conclusion that DPSST
should not revoke petitioner’s certifications based on his dis-
honest conduct. DPSST explained that dishonesty by a law
enforcement officer has implications beyond what the ALJ
considered, because “dishonesty by a law enforcement officer
also impacts that officer’s ability to testify as a witness and
erodes public confidence in the profession.” And, although
DPSST seemingly agreed with the ALJ’s conclusion that
it was not required to show that petitioner’s act of dishon-
esty was material to Hald’s investigation, it appears to have
rejected her implicit conclusion that petitioner’s dishonesty
was not material at all.
Finally, DPSST modified language in the proposed
order to explain that it would exercise its discretion to revoke
petitioner’s certifications under OAR 259-008-0070(4)(a).
DPSST explained, in part:
“The content of [petitioner’s] conversation with his daugh-
ter, his discussion with her as to whether his wife was
upset about their anniversary, was potentially material to
that investigation.
“Independent of the materiality of [petitioner’s] [d]ishonesty
with regards to the criminal investigation, law enforce-
ment officers are professional witnesses and testifying in
court is a critical function of their position and maintain-
ing their credibility is essential. Under Brady v. Maryland,
373 US 83 [83 S Ct 1194, 10 L Ed 2d 215] (1963) and Giglio
v. United States, 405 US 150 [92 S Ct 763, 31 L Ed 2d 104]
(1972), the prosecution has an affirmative obligation to dis-
close exculpatory evidence—this includes any information
that may be used to impeach the credibility of prosecution
witnesses. An officer who has been found to have been
dishonest has his ability to assist in any prosecution sig-
nificantly impaired. Further, allowing a law enforcement
officer who has been proven to be dishonest to continue in
7
See ORS 183.650(2) (“If the administrative law judge assigned from the
office will not enter the final order in a contested case proceeding, and the agency
modifies the form of order issued by the administrative law judge in any substan-
tial manner, the agency must identify the modifications and provide an explana-
tion to the parties to the hearing as to why the agency made the modifications.”).
Cite as 299 Or App 403 (2019) 411
the profession degrades the credibility of other law enforce-
ment officers and undermines the confidence of the public
in the profession.”
Petitioner filed exceptions to the proposed order, but ulti-
mately, DPSST made no changes and issued a final order
revoking petitioner’s Basic, Intermediate, and Advanced
Certifications on May 2, 2016.
On review, petitioner argues that DPSST erred in
issuing the final order revoking his certifications. First, peti-
tioner contends that DPSST erred in interpreting the term
“dishonesty” as it is used in the administrative rule. To peti-
tioner, “dishonesty” must concern a material matter—i.e.,
“a matter that would or could significantly influence the
recipient’s decision-making process”—to demonstrate that
a public safety officer lacks “moral fitness.” Second, even if
DPSST correctly interpreted “dishonesty” as meaning any
untruthful act concerning any subject, petitioner contends
that DPSST’s conclusion, based upon his untruthful state-
ment to Hald, that he lacked “moral fitness” is not supported
by substantial reason.
DPSST’s response to petitioner’s argument is nuanced.
DPSST contends in its briefing that it is entitled to deference
regarding its interpretation of “its own rule,” and that its
interpretation of “dishonesty” is supported by the text and
context of the rule. However, its position at oral argument
was not that just “any” untruth qualified as dishonesty under
OAR 259-008-0070(4)(b)(A). Thus, DPSST appears to agree
to some extent with petitioner’s first argument, namely, that
some degree of “materiality” is required.8 As to petitioner’s
second argument, DPSST responds that it established
the necessary “rational connection” between petitioner’s
dishonesty—as it construed that term—and its ultimate
decision to revoke his certifications.
Before turning to those arguments, we pause
to note that, after briefing in this case was complete, we
decided King v. Dept. of Public Safety Standards, 289 Or
App 314, 412 P3d 1183 (2017), rev den, 363 Or 104 (2018).
8
It is not clear to what extent DPSST agrees that petitioner’s untruthful act
was required to be material to Hald’s investigation, or, instead, merely material
to some aspect of petitioner’s fitness to function as a law enforcement officer.
412 Fuller v. Dept. of Public Safety Standards
There, DPSST had revoked the petitioner’s Corrections
Officer Certification after an ALJ ruled, on a motion for
summary determination, that the petitioner had engaged
in “discretionary disqualifying misconduct” as a matter of
law. We held that, because whether DPSST “should” have
revoked the petitioner’s certification was “not a question
that demand[ed] a particular result as a matter of law,” the
ALJ erred in granting DPSST’s motion for summary deter-
mination and ordering the revocation of the petitioner’s cer-
tification. Id. at 321. We remanded for the agency to hold a
contested case hearing, at which “DPSST [was] expected to
consider all of the relevant evidence in making its determi-
nation whether it should revoke a corrections officer’s certi-
fication.” Id. In this case, because petitioner does not argue
that King requires reversal, we do not address the potential
implications of that decision, except that we presume that
the DPSST will provide petitioner, if he so requests, with a
contested case hearing on remand.
Returning to petitioner’s first argument, petitioner
contends that DPSST legally erred in interpreting the term
“dishonesty” as it is used in the context of a revocation of cer-
tification under OAR 259-008-0070(4)(a). To reiterate, peti-
tioner argues that, to be “discretionary disqualifying mis-
conduct” under the applicable rules, an act of “dishonesty”
must be shown to be “material.” DPSST responded in its
brief that any act of dishonesty by a police officer, regardless
of its substance, is discretionary disqualifying misconduct
because any dishonesty by a police officer compromises the
officer’s ability to perform his or her job. At oral argument,
however, DPSST acknowledged that there must be some
nexus between the act of dishonesty and the certification to
be a police officer. In other words, DPSST recognized that
there must be some connection between the conduct involv-
ing dishonesty and the public safety professional’s ability to
perform his or her job.9
9
For example, DPSST contended at oral argument that in this case, the
nexus was that DPSST “had [petitioner] on record being willing to lie to an inves-
tigator of his own department.” Petitioner responded that DPSST was wrong
about the “nexus” in this case, because in any hypothetical future criminal trial
that petitioner might testify in, the court would not get into specific instances of
untruthfulness due to the rules of evidence.
Cite as 299 Or App 403 (2019) 413
We accept DPSST’s acknowledgment that, consistent
with petitioner’s view, any act of dishonesty is not inher-
ently discretionary disqualifying misconduct under its rule.
To the extent DPSST’s final order is premised on the con-
trary view expressed in its brief, the order cannot stand.
However, it is not entirely clear that, in stating in the order
that its decision was “[i]ndependent of the materiality of
[petitioner’s] dishonesty with regards to the criminal inves-
tigation,” DPSST interpreted the rule as dispensing with
a materiality requirement altogether. (Emphasis added.)10
Thus, we turn to examine petitioner’s second argument that
DPSST’s conclusion—that his dishonest act compromised
his “moral fitness” to be a law enforcement officer—was not
supported by substantial reason.
The substantial reason requirement exists, in part,
“to ensure that the agency gives responsible attention to its
application of the statute.” Ross v. Springfield School Dist.
No. 19, 294 Or 357, 370, 657 P2d 188 (1982). Thus, pursu-
ant to our substantial reason review, we look to whether the
agency has “articulate[d] a rational connection between the
10
Ordinarily, to interpret an administrative rule, we apply the same ana-
lytical framework that applies to the interpretation of statutes. Brand Energy
Services LLC v. OR-OSHA, 261 Or App 210, 214, 323 P3d 356 (2014). To the
extent that an agency is interpreting its own rule, we defer to that interpre-
tation if it is plausible and not inconsistent with the wording of the rule itself,
the rule’s context, or any other source of law. Don’t Waste Oregon Com. v. Energy
Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994). Though DPSST claims to
be interpreting “its own rule,” we note that it is actually the board that “shall
establish” the minimum standards for moral fitness. ORS 181A.410(1)(a). DPSST
shall merely “recommend” those standards. Id. Thus, we express no opinion on
whether we would defer to DPSST’s interpretation of “dishonesty,” because we do
not reach that issue to resolve this case.
We also do not understand petitioner to argue that, in construing and apply-
ing the rule, DPSST acted outside the range of discretion delegated to it and the
board by law. See ORS 183.482(8)(b)(A) (“The court shall remand the order to the
agency if the court finds the agency’s exercise of discretion to be * * * [o]utside
the range of discretion delegated to the agency by law[.]”). At oral argument,
petitioner argued that DPSST abused its discretion in ordering the revocation
of his certifications, but contended that our analysis of DPSST’s action would be
pursuant to our “substantial reason” review. We understand petitioner to argue
that there could never be “substantial reason” to support a finding of miscon-
duct for “any” untruth, because that would be an abuse of discretion. However,
because petitioner did not argue below that DPSST had erred under ORS 183.482
(8)(b)(A), and because we remand to the agency, we do not reach the issue of
whether DPSST’s exercise of discretion was outside of the range delegated to the
DPSST and the board by law.
414 Fuller v. Dept. of Public Safety Standards
facts and the legal conclusions it draws from them.” Jenkins
v. Board of Parole, 356 Or 186, 195, 335 P3d 828 (2014) (inter-
nal quotation marks omitted). An agency order regarding
a contested case that lacks such reasoning requires us to
reverse and remand for the agency to correct the deficiency.
Id.To review, in this case, petitioner participated in
an internal investigation regarding his involvement in an
automobile accident after attending a fundraiser at a casino
where he drank alcohol. When petitioner was asked why he
called his daughter, he stated that he was “just talking to
her” and did not remember what they talked about. When
petitioner was asked again about that phone call later in
his contested case hearing, he admitted, under oath, that he
had not been truthful. Petitioner stated that he actually did
remember what he talked about with his daughter—they
talked about whether his wife was upset because petitioner
had not been at home for their anniversary—but that he
did not disclose the truth because he did not think that was
any of the investigator’s business. Thus, petitioner admit-
ted, under oath, to being dishonest about a personal matter
during an internal investigation.
DPSST based its conclusion that petitioner lacked
moral fitness on the fact that his statement to Hald was “an
act” of dishonesty. As noted, it stated that, “[i]ndependent
of the materiality of [an officer’s] dishonesty with regards
to [a specific] criminal investigation,” an officer “who has
been proven to be dishonest” will essentially be forever com-
promised: his “ability to assist in any prosecution signifi-
cantly impaired” and his continuation in the profession a
“degrad[ation of] the credibility of other law enforcement
officers.” On review, in response to petitioner’s substantial
reason argument, DPSST argues that this establishes a
rational connection between petitioner’s dishonesty and
its ultimate decision to revoke petitioner’s certifications.
In particular, DSPPT argues that petitioner’s dishon-
esty (1) impaired petitioner’s ability to assist in prosecu-
tions because, due to required Brady disclosures, he could
be impeached and have his credibility diminished, and
(2) would degrade the credibility of and undermine public
confidence in law enforcement generally.
Cite as 299 Or App 403 (2019) 415
We agree with petitioner that DPSST’s explanation
for its conclusion does not comport with substantial reason.
First, regarding the possibility of petitioner being impeached
in future prosecutions, we do not see how that conclusion fol-
lows from the evidence that petitioner was admittedly dis-
honest with Hald. That is, had petitioner been convicted for
dishonest conduct, DPSST’s understanding that petitioner’s
dishonesty had impaired his ability to assist in prosecutions
might be correct. However, in this case, petitioner was not
convicted of a crime. At least as a matter of state evidence
law, any impeachment regarding petitioner’s dishonesty
would, it seems, be limited by OEC 608, as, under that rule,
specific instances of misconduct typically are not admissible
to attack a witness’s credibility. OEC 608(2).11 As a result,
unlike DPSST, we do not readily perceive how petitioner’s
admitted act of dishonest conduct would necessarily impact
his ability, whole cloth, to assist in future prosecutions, and
nothing in DPSST’s order provides us with that explanation.
Next, DPSST stated that allowing petitioner to con-
tinue to hold his police certifications despite his admitted
dishonesty would degrade the credibility of, and undermine
public confidence in, law enforcement generally. Again, how-
ever, DPSST does not explain the connection between peti-
tioner’s dishonesty here and the erosion of public confidence
in law enforcement generally. Petitioner admitted, under
oath, that he had earlier refused to tell Hald the details
of a phone call he had with his daughter about his wife,
because he did not think that his employer had any business
inquiring into such details of his life. We do not perceive the
11
OEC 608 provides:
“(1) The credibility of a witness may be attacked or supported by evi-
dence in the form of opinion or reputation, but:
“(a) The evidence may refer only to character for truthfulness or untruth-
fulness; and
“(b) Evidence of truthful character is admissible only after the character
of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
“(2) Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the credibility of the witness, other than conviction
of crime as provided in [OEC 609], may not be proved by extrinsic evidence.
Further, such specific instances of conduct may not, even if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the
witness.”
416 Fuller v. Dept. of Public Safety Standards
rational connection between that dishonest conduct and the
loss of public confidence in law enforcement as a whole, and
DPSST’s order does not explain further.
In sum, we conclude that DPSST’s conclusion to
revoke petitioner’s certifications is unsupported by substan-
tial reason; accordingly, we reverse and remand.
Reversed and remanded.