Delehant v. Board on Police Standards & Training

839 P.2d 737, 115 Or. App. 598

• Court: Court of Appeals of Oregon
• Decided: January 26, 1993
• Docket: CA A65552
• Status: Published

Opinions

BUTTLER, P. J.

Petitioner seeks review of an order issued by the Board on Police Standards and Training (BPST) that denied him certification to work as a law enforcement officer. We affirm.

In 1983, when petitioner was 18, he was convicted in Idaho of petty theft, trespassing and driving under the influence of intoxicants, which were misdemeanors under Idaho law. In 1985, petitioner began working for the city of Hines, Oregon, as a police dispatcher and reserve officer. In a 1986 order amending the judgment that it had entered against petitioner, the Idaho court set aside his convictions and dismissed the case against him, thereby restoring petitioner’s civil rights. Idaho Code § 19-2604.¹ Petitioner then started working as a dispatcher for the city of Burns, where, in 1987, he began work as a full-time patrol officer. In 1988, he completed training at the police academy and filed an application with BPST seeking certification as a law enforcement officer. Before completing the form, he asked Hoppe, BPST’s Standards and Certification Coordinator, if an applicant who had a criminal conviction “set aside” should report the conviction on the application. Hoppe advised him that he should report it and attach a copy of the order setting it aside. Petitioner did that.

In 1989, BPST denied petitioner’s certification, indicating that it was denied because of his Idaho convictions. Petitioner requested a hearing. Four days before the hearing, he obtained an order from the Idaho court expunging the records of his misdemeanor convictions. Several law enforcement authorities supported his certification at the hearing and others submitted letters on his behalf.

On February 7, 1990, BPST adopted OAR 259-08-070, which provides, in part:

“(1) Grounds for Denying or Revoking Certification of an Officer:

“(a) The Board may deny or revoke the certification of any police officer * * * based on a finding that:

<<* * * * *

“(B) The officer has been convicted of a crime in this state or any other jurisdiction^] ”

BPST did not rely on that rule when it issued an Amended Final Order on April 13, 1990, in which it again denied certification. In February, 1991, BPST withdrew that order and issued a Second Amended Final Order on May 7, 1991. Petitioner challenges that order, which relied on the new rule to deny him certification.

Petitioner raises three arguments in his challenge to the order. First, he claims that BPST is estopped from relying on the Idaho convictions, because Hoppe advised him to be truthful about his prior convictions, and he disclosed them, despite the fact that “he probably would not have done so” but for that advice. We need not decide whether petitioner could have legally denied that he had been convicted of a crime.² Hoppe’s advice to tell the truth cannot be the basis for estopping a party.

Next, petitioner argues that BPST’s “retroactive” application of OAR 259-08-070(1) (a) (B) to him violates the proscription against ex post facto laws. US Const, Art I, § 10; Or Const, Art I, § 21. He contends that his application must be considered under the administrative rules that were in effect when he submitted his application for certification in September, 1988. Because petitioner, as an applicant, had no vested right to certification, application of the new administrative rules is not a retroactive application denying him any rights. BPST is entitled to revise its standards, which it did when it adopted OAR 259-08-070 in 1990, which is expressly authorized by ORS 181.662. ³ The order that petitioner challenges was issued in 1991. Therefore, BPST was authorized to apply that rule in ruling on petitioner’s application for certification.

Finally, petitioner contends that the Full Faith and Credit Clause of the United States Constitution⁴ requires BPST to give the same recognition to the orders issued by the Idaho court that an Idaho agency would. As a general proposition,

“a state must accord the judgment of a court of another state the same credit that it is entitled to in the courts of that state.” Morphet v. Morphet, 263 Or 311, 322, 502 P2d 255 (1972).

However, there are exceptions, one of which is well-stated in Restatement (Second) Conflicts of Law, § 103 (1971):

“A judgment rendered in one State of the United States need not he recognized or enforced in a sister state if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister state.”

First, it is not completely clear what effect the Idaho orders have in that state. They restore the convicted person’s civil rights, but the criminal records are not sealed. Use of the conviction is not prohibited completely. It can be used as an element of the federal crime of possession of a firearm by a convicted felon, United States v. Bergeman, 592 F2d 533 (9th Cir 1979), and to enhance the penalty for multiple DUII convictions within a 10-year period, State v. Dietz, 120 Idaho 755, 819 P2d 1155 (1991), although it may not be considered as a basis for revocation of a veterinary license. Manners v. State, Bd. of Veterinary Medicine, 107 Idaho 950, 694 P2d 1298 (1985).

Second, under Oregon law, petitioner could not have obtained expungement of his record if he had committed the crimes in this state. ORS 137.225 prohibits expungement of multiple crimes committed within 10 years. Therefore, to hold that BPST may not consider the historical fact that petitioner has been convicted of crimes in deciding whether to certify him as a law enforcement officer would involve an improper interference with BPST’s strong interest in examining and ensuring the moral fitness of its police officers.

BPST cited Ballard v. Board of Trustees of Police Pension Fund of Evansville, 452 NE2d 1023 (Ind App 1983), in support of its order. Ballard, a retired Indiana policeman, was convicted of a felony in Arizona. Indiana terminated his pension under a statute allowing it to do so if the pensioner has been convicted of a felony. Ballard obtained an order in Arizona restoring his civil rights and then sought renewal of his Indiana pension benefits. In rejecting his argument that Indiana was required to give full faith and credit to the Arizona order, the court held that Indiana

“was not bound to apply Arizona law in the manner suggested by Ballard since to do so would violate the public policy of Indiana that police pensioners who are convicted of a felony may have their pension benefits terminated. * * * The Full Faith and Credit [C]lause does not require a state to apply another state’s law in violation of its own legitimate public policy.” 452 NE2d at 1026.

Oregon also has a legitimate public policy permitting the denial of certification as police officers of persons with criminal convictions. The question is not whether BPST could apply the Idaho law or even whether it would be preferable to do so. Rather, the question is whether it must do so, and we hold that it is not required by the Full Faith and Credit Clause to apply it. Therefore, it was permissible for BPST to consider petitioner’s criminal record that was not expungeable under Oregon law in determining his fitness to enforce the criminal laws of this state. The evaluation of petitioner’s criminal record, along with the evidence submitted in support of his certification, was for BPST to perform, not this court.

Affirmed.

1 Idaho Code § 19-2604(1) provides:

“If sentence has been imposed but suspended, or if sentence has been withheld, upon application of the defendant and upon satisfactory showing that the defendánt has at all times complied with the terms and conditions upon which he was placed on probation, the court may, if convinced by the showing made that there is no longer cause for continuing the period of probation, and if it be compatible with the public interest, terminate the sentence or set aside the plea of guilty or conviction of the defendant, and finally dismiss the case and discharge the defendant * * *. The final dismissal of the case as herein provided shall-have the effect of restoring the defendant to his civil rights.”

2 ORS 162.175(1) provides:

“A person commits the crime of false swearing if the person makes a false sworn statement, knowing it to be false.”

3 ORS 181.662(1)(b) provides:

“(1) The board may deny or revoke the certification of any police officer, corrections officer, parole and probation officer, telecommunicator or emergency medical dispatcher after written notice and hearing, based upon a finding that:

U* * * * *

“(b) The officer, telecommunicator or emergency medical dispatcher has been convicted of a crime in this state or any other jurisdiction.”

⁴

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” US Const, Art IV, § 1.