Huesties v. Board On Police Standards & Training

Court of Appeals of Oregon

Huesties v. Board On Police Standards & Training

767 P.2d 465, 95 Or. App. 17

CourtCourt of Appeals of Oregon

DecidedJanuary 25, 1989

Docket7928; CA A46482

StatusPublished

Cited by1 cases

This text of 767 P.2d 465 (Huesties v. Board On Police Standards & Training) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huesties v. Board On Police Standards & Training, 767 P.2d 465, 95 Or. App. 17 (Or. Ct. App. 1989).

Pincite

Opinion

RICHARDSON, P. J.

Petitioner seeks review of a Board on Police Standards and Training (BPST) order revoking his basic and intermediate police certificates. BPST conducted the contested case proceeding which culminated in the order after petitioner was discharged as a police officer by the Umatilla Tribal Police Department (UTPD). Former ORS 181.662(1) (b), on which BPST based its order, authorized it to “revoke the certification of any police officer” on finding that the “officer has been discharged for cause from employment as a police officer.”¹

Petitioner was employed by UTPD from April, 1984, until his discharge in October, 1986. BPST found that petitioner committed two of the acts on which UTPD based the discharge: knowingly misrepresenting his educational status on his applications for employment with UTPD and for intermediate certification with BPST, and removing and copying a confidential tape recording from the UTPD police chiefs desk without the latter’s permission. BPST concluded that those acts constituted “gross misconduct” under OAR 259-10-055(21)(b), which defined “discharged for cause” for purposes of former ORS 181.662(l)(b).²

The issue that underlies most of petitioner’s specific assignments of error and both parties’ specific arguments is whether and to what extent BPST was required to assess the [20]*20validity of UTPD’s discharge decision before revoking petitioner’s certification pursuant to former ORS 181.662(1) (b). Petitioner asserts that the discharge was invalid, inter alia, because it was retaliatory and because it did not comply with procedural requirements under federal regulations relating to contractors with the Bureau of Indian Affairs. He concludes that BPST could not find that he was “discharged” within the meaning of former ORS 181.662(l)(b).³ BPST responds that it was not required to consider the validity of other aspects of UTPD’s action if, after an “independent review of the factual basis for the discharge,” BPST “determined that UTPD in fact had sufficient grounds to terminate [petitioner] for cause.”

We agree with BPST. Its role under ORS 181.610 et seq is to establish standards for police officers and to conduct a process for certifying them. Revocation of an officer’s certificate under ORS 181.661 to ORS 181.664 is part of that process. Although we might agree with petitioner that BPST could not have revoked his certificates without making independent findings that he had engaged in misconduct and without concluding that the misconduct constituted “cause” under applicable statutory and regulatory standards, BPST did make such findings and conclusions here. We do not agree with petitioner that BPST had authority to review the discharge to determine any question except the presence or absence of cause.

It is correct that former ORS 181.662(1)(b) required that there be a discharge as well as cause for one in order for an officer’s certification to be revoked on the basis of that subsection. Consequently, a termination by the employing police agency was a “jurisdictional” condition precedent to BPST’s revocation authority. However, nothing in the statutory scheme is consistent with petitioner’s view that the legislature intended that BPST have authority to review the employer’s discharge decision, as distinct from determining whether the decision was or could have been for sufficient cause. The existence of cause is directly relevant to BPST’s determination of whether to revoke an officer’s certification; other kinds of questions about the validity of a discharge are germane only to [21]*21employment rights — a subject with which BPST has no concern or authority.

BPST’s function is to devise police standards and qualifications and, in effect, to tell police agencies whom they may employ as police officers; it is not to tell them whom they must employ or to review employment decisions beyond the point where standards and qualifications are implicated. To impute the broader scope to ORS 181.610 et seq would set those statutes on a collision course with other statutory and regulatory schemes. See ORS 243.650 et seq; see abo n 3, supra.

We reject five of petitioner’s seven assignments on the basis of what we have said. We also reject the other two. They do not warrant discussion.

Affirmed.

²

OAR 259-10-055(21) provides, in relevant part:

“(a) Grounds for Revocation: The Board may deny or revoke the certification of any officer after written notice, and a hearing, if requested, based upon a finding that the officer falsified any information required to obtain certification; or has been discharged for cause from employment as a police, corrections, or parole and probation officer; or has been convicted of a crime designated in any statute of this state as a felony or a crime for which a maximum term of imprisonment of more than one year may be imposed;

“(b) For purposes of this rule, ‘discharged for cause’, means an employer initiated termination of employment for any of the following reasons:

«* * * * *

“[6](c) ‘Incompetence or Gross Misconduct’: In determining what constitutes ‘incompetence or gross misconduct’, the Board may take into account such sources as practices generally followed in the profession, current teaching at law enforcement training facilities, and technical reports and literature relevant to the field of law enforcement.”

Free access — add to your briefcase to read the full text and ask questions with AI

RICHARDSON, P. J.

Petitioner seeks review of a Board on Police Standards and Training (BPST) order revoking his basic and intermediate police certificates. BPST conducted the contested case proceeding which culminated in the order after petitioner was discharged as a police officer by the Umatilla Tribal Police Department (UTPD). Former ORS 181.662(1) (b), on which BPST based its order, authorized it to “revoke the certification of any police officer” on finding that the “officer has been discharged for cause from employment as a police officer.”¹

Petitioner was employed by UTPD from April, 1984, until his discharge in October, 1986. BPST found that petitioner committed two of the acts on which UTPD based the discharge: knowingly misrepresenting his educational status on his applications for employment with UTPD and for intermediate certification with BPST, and removing and copying a confidential tape recording from the UTPD police chiefs desk without the latter’s permission. BPST concluded that those acts constituted “gross misconduct” under OAR 259-10-055(21)(b), which defined “discharged for cause” for purposes of former ORS 181.662(l)(b).²

The issue that underlies most of petitioner’s specific assignments of error and both parties’ specific arguments is whether and to what extent BPST was required to assess the [20]*20validity of UTPD’s discharge decision before revoking petitioner’s certification pursuant to former ORS 181.662(1) (b). Petitioner asserts that the discharge was invalid, inter alia, because it was retaliatory and because it did not comply with procedural requirements under federal regulations relating to contractors with the Bureau of Indian Affairs. He concludes that BPST could not find that he was “discharged” within the meaning of former ORS 181.662(l)(b).³ BPST responds that it was not required to consider the validity of other aspects of UTPD’s action if, after an “independent review of the factual basis for the discharge,” BPST “determined that UTPD in fact had sufficient grounds to terminate [petitioner] for cause.”

We agree with BPST. Its role under ORS 181.610 et seq is to establish standards for police officers and to conduct a process for certifying them. Revocation of an officer’s certificate under ORS 181.661 to ORS 181.664 is part of that process. Although we might agree with petitioner that BPST could not have revoked his certificates without making independent findings that he had engaged in misconduct and without concluding that the misconduct constituted “cause” under applicable statutory and regulatory standards, BPST did make such findings and conclusions here. We do not agree with petitioner that BPST had authority to review the discharge to determine any question except the presence or absence of cause.

It is correct that former ORS 181.662(1)(b) required that there be a discharge as well as cause for one in order for an officer’s certification to be revoked on the basis of that subsection. Consequently, a termination by the employing police agency was a “jurisdictional” condition precedent to BPST’s revocation authority. However, nothing in the statutory scheme is consistent with petitioner’s view that the legislature intended that BPST have authority to review the employer’s discharge decision, as distinct from determining whether the decision was or could have been for sufficient cause. The existence of cause is directly relevant to BPST’s determination of whether to revoke an officer’s certification; other kinds of questions about the validity of a discharge are germane only to [21]*21employment rights — a subject with which BPST has no concern or authority.

BPST’s function is to devise police standards and qualifications and, in effect, to tell police agencies whom they may employ as police officers; it is not to tell them whom they must employ or to review employment decisions beyond the point where standards and qualifications are implicated. To impute the broader scope to ORS 181.610 et seq would set those statutes on a collision course with other statutory and regulatory schemes. See ORS 243.650 et seq; see abo n 3, supra.

We reject five of petitioner’s seven assignments on the basis of what we have said. We also reject the other two. They do not warrant discussion.

Affirmed.

²

OAR 259-10-055(21) provides, in relevant part:

“(a) Grounds for Revocation: The Board may deny or revoke the certification of any officer after written notice, and a hearing, if requested, based upon a finding that the officer falsified any information required to obtain certification; or has been discharged for cause from employment as a police, corrections, or parole and probation officer; or has been convicted of a crime designated in any statute of this state as a felony or a crime for which a maximum term of imprisonment of more than one year may be imposed;

“(b) For purposes of this rule, ‘discharged for cause’, means an employer initiated termination of employment for any of the following reasons:

«* * * * *

“[6](c) ‘Incompetence or Gross Misconduct’: In determining what constitutes ‘incompetence or gross misconduct’, the Board may take into account such sources as practices generally followed in the profession, current teaching at law enforcement training facilities, and technical reports and literature relevant to the field of law enforcement.”

Cite This Page — Counsel Stack

Bluebook (online)

767 P.2d 465, 95 Or. App. 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huesties-v-board-on-police-standards-training-orctapp-1989.

Opinion

Related

Cite This Page — Counsel Stack