[247]*247THORNTON, P. J.
Lewis and Clark College appeals an order of the _<abor Commissioner finding it had discriminated igainst Dianne Hart in hiring a male applicant for the >osition of instructor in the college’s art department.
In May, 1972, Dianne Komberg Hart applied for an nstructorship in the Art Department of Lewis and Nark College. Two competing male applicants were nterviewed for the position. The first rejected the job >ut the second accepted it. Hart was not interviewed.
The procedure the college followed to fill the posi-ion began with the appointment of a five-member search committee,” headed by the chairman of the art epartment. After an initial screening process, five inalists were selected from among the applicants, according to the college, the finalists were then rank-d in order of preference by each of the individual íembers of the committee. Thereafter, the committee repared a composite ranking. The applicants were to e interviewed in their order on the composite list ntil the job was offered to and accepted by one of lem. For example, if the highest ranked applicant ook the job, the remaining four would not be inter-iewed. Hart was ranked fifth on the composite list. Ihe had been ranked higher than that by some of the íembers of the committee, but was ranked lower than re successful applicant by all of the committee mem-ers who either prepared individual lists or testified to íeir recollections of their comparative evaluation of le applicants. However, one of the members had anked Hart higher than the second male applicant Drr) who received an interview.
The Commissioner found, in essence, that the rank-lg system was not the actual basis for determining who would be interviewed, and that the composite list jre no relationship to the individual committee mem-ers’ rankings, but was contrived to facilitate inter-lews or promote candidacies in accordance with the references of the department chairman and the dean.
[248]*248Hart filed a complaint with the Commissioner of Labor,1 alleging sex discrimination and retaliation (ORS ch 659). A hearing was conducted before a hearings officer, who issued a proposed order in March, 1978. In December, 1978, the Commissioner issued his final order. He concluded that the college had discriminated against Hart, and ordered, first, that the college pay Hart the difference between the salary and benefits the successful applicant had received during the period July 1, 1972, to December 31, 1976, and the compensation Hart had earned during that period; and, second, that the college offer Hart a teaching position in the art department equivalent in compensation and credit toward tenure to that of an assistant professor with four years’ consecutive service.
The college petitions for judicial review. It contends that there was no substantial evidence to support the finding of discrimination, that the Commissioner applied incorrect legal standards, that the college was denied due process because of "ex parte contacts” between the Commissioner and an assistant attorney general, and that the remedy ordered by the Commissioner was improper.
Based upon our reading of this entire record, it is our conclusion that there is not "substantial evidence in the whole record” within the meaning of that term in ORS 183.482(8)(d) to support the Labor Commissioner’s finding that Lewis and Clark College discriminated against Dianne Hart on the basis of her sex in choosing Professor Barnes for the position.
The college conceded that Mrs. Hart had established a prima facie case of discrimination but contends that the college’s proffered "gender neutral” explanation for its hiring action was sufficient to overcome this prima facie case.
[249]*249Even assuming that the college’s decision to hire a lale applicant without interviewing Mrs. Hart was by self sufficient to establish a prima facie case of iscrimination against her, which is arguable, it would e our conclusion that the college’s evidence, which is ummarized below and which was unrefuted, was lainly sufficient to overcome this prima facie case nd establish that this decision was a matter of legiti-íate, nondiscriminatory, merit selection by the search Dmmittee from among all applicants.
What the evidence shows is that the selection pro-3ss had narrowed itself down to five finalists, includ-lg Mrs. Hart. Under the search committee’s proce-ure for ranking and interviewing the applicants, it was decided in advance that rather than interview all ve finalists, applicants were to be interviewed in the rder they appeared on the composite list until the job as offered to and accepted by one of them. Thereafter íe search committee, after considering Mrs. Hart’s pplication and allied documents and art work along ith that of the other finalists, decided to choose nother finalist, Professor Barnes, rather than Mrs. art, without interviewing her. It did, however, inter-Lew two others who were above her on the list, both of whom were males. There was some evidence that a ¡ourtesy interview” with Mrs. Hart was discussed ecause of Mrs. Hart’s husband’s official position at ewis and Clark College, and that this suggestion was lbsequently abandoned as unnecessary.
It should be pointed out that no member of the ;arch committee ever ranked Mrs. Hart above Profes-ar Barnes, the male who was subsequently inter-Lewed and hired.
In our view this falls short of establishing a viola-on of the Oregon civil rights-antidiscrimination iws, ORS ch 659. Cf. Fajardo v. Morgan, 15 Or App 454, 516 P2d 495 (1973).
By way of background, we find the following per-lasive: Between 1946 and 1978 there have been only [250]*250four full-time faculty positions in the art department at Lewis and Clark College. These positions were in Painting and Drawing (since 1946), Art History (since 1947), Ceramics and Sculpture (since 1949), and Calligraphy (since 1951). Twelve different individuals have held these positions, of whom three have been women (Alice Asmar—Painting and Drawing (a tenured position), Henrietta Perry—Art History (a tenured position), and Cindy Remold—Art History. In addition to the full-time positions, the art department now includes part-time positions in Weaving, Sculpture, and Painting. A total of 13 women have been employed on the art department faculty. In addition, the full-time position in art history filled by Stewart Buettner in 1973 was first offered to a woman, Martha Hutson, who declined the offer.
The college makes a number of arguments in connection with its general contention that the Commissioner did not apply correct legal standards. We have considered those arguments and conclude that they do not require discussion.
The college also assigns error to what it describes as the ex parte assistance of the attorney prosecuting the case in the preparation of the final order. The college refers to the assistance provided the Commissioner by an assistant attorney general who had represented the agency before the hearings officer. The interrelationship of state agencies and personnel from the Department of Justice, who sometimes act in quasi-prosecutorial as well as advisory roles in agency proceedings, is a potential source of complicated legal and ethical problems.
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[247]*247THORNTON, P. J.
Lewis and Clark College appeals an order of the _<abor Commissioner finding it had discriminated igainst Dianne Hart in hiring a male applicant for the >osition of instructor in the college’s art department.
In May, 1972, Dianne Komberg Hart applied for an nstructorship in the Art Department of Lewis and Nark College. Two competing male applicants were nterviewed for the position. The first rejected the job >ut the second accepted it. Hart was not interviewed.
The procedure the college followed to fill the posi-ion began with the appointment of a five-member search committee,” headed by the chairman of the art epartment. After an initial screening process, five inalists were selected from among the applicants, according to the college, the finalists were then rank-d in order of preference by each of the individual íembers of the committee. Thereafter, the committee repared a composite ranking. The applicants were to e interviewed in their order on the composite list ntil the job was offered to and accepted by one of lem. For example, if the highest ranked applicant ook the job, the remaining four would not be inter-iewed. Hart was ranked fifth on the composite list. Ihe had been ranked higher than that by some of the íembers of the committee, but was ranked lower than re successful applicant by all of the committee mem-ers who either prepared individual lists or testified to íeir recollections of their comparative evaluation of le applicants. However, one of the members had anked Hart higher than the second male applicant Drr) who received an interview.
The Commissioner found, in essence, that the rank-lg system was not the actual basis for determining who would be interviewed, and that the composite list jre no relationship to the individual committee mem-ers’ rankings, but was contrived to facilitate inter-lews or promote candidacies in accordance with the references of the department chairman and the dean.
[248]*248Hart filed a complaint with the Commissioner of Labor,1 alleging sex discrimination and retaliation (ORS ch 659). A hearing was conducted before a hearings officer, who issued a proposed order in March, 1978. In December, 1978, the Commissioner issued his final order. He concluded that the college had discriminated against Hart, and ordered, first, that the college pay Hart the difference between the salary and benefits the successful applicant had received during the period July 1, 1972, to December 31, 1976, and the compensation Hart had earned during that period; and, second, that the college offer Hart a teaching position in the art department equivalent in compensation and credit toward tenure to that of an assistant professor with four years’ consecutive service.
The college petitions for judicial review. It contends that there was no substantial evidence to support the finding of discrimination, that the Commissioner applied incorrect legal standards, that the college was denied due process because of "ex parte contacts” between the Commissioner and an assistant attorney general, and that the remedy ordered by the Commissioner was improper.
Based upon our reading of this entire record, it is our conclusion that there is not "substantial evidence in the whole record” within the meaning of that term in ORS 183.482(8)(d) to support the Labor Commissioner’s finding that Lewis and Clark College discriminated against Dianne Hart on the basis of her sex in choosing Professor Barnes for the position.
The college conceded that Mrs. Hart had established a prima facie case of discrimination but contends that the college’s proffered "gender neutral” explanation for its hiring action was sufficient to overcome this prima facie case.
[249]*249Even assuming that the college’s decision to hire a lale applicant without interviewing Mrs. Hart was by self sufficient to establish a prima facie case of iscrimination against her, which is arguable, it would e our conclusion that the college’s evidence, which is ummarized below and which was unrefuted, was lainly sufficient to overcome this prima facie case nd establish that this decision was a matter of legiti-íate, nondiscriminatory, merit selection by the search Dmmittee from among all applicants.
What the evidence shows is that the selection pro-3ss had narrowed itself down to five finalists, includ-lg Mrs. Hart. Under the search committee’s proce-ure for ranking and interviewing the applicants, it was decided in advance that rather than interview all ve finalists, applicants were to be interviewed in the rder they appeared on the composite list until the job as offered to and accepted by one of them. Thereafter íe search committee, after considering Mrs. Hart’s pplication and allied documents and art work along ith that of the other finalists, decided to choose nother finalist, Professor Barnes, rather than Mrs. art, without interviewing her. It did, however, inter-Lew two others who were above her on the list, both of whom were males. There was some evidence that a ¡ourtesy interview” with Mrs. Hart was discussed ecause of Mrs. Hart’s husband’s official position at ewis and Clark College, and that this suggestion was lbsequently abandoned as unnecessary.
It should be pointed out that no member of the ;arch committee ever ranked Mrs. Hart above Profes-ar Barnes, the male who was subsequently inter-Lewed and hired.
In our view this falls short of establishing a viola-on of the Oregon civil rights-antidiscrimination iws, ORS ch 659. Cf. Fajardo v. Morgan, 15 Or App 454, 516 P2d 495 (1973).
By way of background, we find the following per-lasive: Between 1946 and 1978 there have been only [250]*250four full-time faculty positions in the art department at Lewis and Clark College. These positions were in Painting and Drawing (since 1946), Art History (since 1947), Ceramics and Sculpture (since 1949), and Calligraphy (since 1951). Twelve different individuals have held these positions, of whom three have been women (Alice Asmar—Painting and Drawing (a tenured position), Henrietta Perry—Art History (a tenured position), and Cindy Remold—Art History. In addition to the full-time positions, the art department now includes part-time positions in Weaving, Sculpture, and Painting. A total of 13 women have been employed on the art department faculty. In addition, the full-time position in art history filled by Stewart Buettner in 1973 was first offered to a woman, Martha Hutson, who declined the offer.
The college makes a number of arguments in connection with its general contention that the Commissioner did not apply correct legal standards. We have considered those arguments and conclude that they do not require discussion.
The college also assigns error to what it describes as the ex parte assistance of the attorney prosecuting the case in the preparation of the final order. The college refers to the assistance provided the Commissioner by an assistant attorney general who had represented the agency before the hearings officer. The interrelationship of state agencies and personnel from the Department of Justice, who sometimes act in quasi-prosecutorial as well as advisory roles in agency proceedings, is a potential source of complicated legal and ethical problems. In this case, the contact between the Commissioner and the assistant attorney general was initiated by the Commissioner, and took the form of the assistant attorney general speaking with the Commissioner and drafting the final order on the Commissioner’s behalf. Before the contacts occurred, the hearing officer’s proposed order, which was adverse to the college, had been served on the parties, and the college had filed exceptions. Nothing in the record suggests [251]*251that the Commissioner did not make his own findings, 3r that the assistant attorney general did more than embody the Commissioner’s findings in "legal language.” Under these facts, we discern no possible prejudice to the college. Gregg v. Racing Commission, 38 Or App 19, 24-25, 588 P2d 1290, rev den 286 Or 637 (1979).
We do conclude, however, that there was substan-;ial evidence to support the Commissioner’s finding ;hat after Mrs. Hart filed her antidiscrimination complaint with the Bureau of Labor, the college did inform VIrs. Hart that if she were to persist with her complaint she would not be considered for any future jpenings in the art department and that on November i, 1973, Hart sent Professor Shores a letter reapplying for any positions which might become open in the art lepartment; that at least one opening for which she vas qualified did become open between the time the etter was transmitted and the date of the hearing; hat the college failed to consider Mrs. Hart for this josition; and that the inference is permissible that this ¡onstituted retaliatory action against her for filing a :omplaint. ORS 659.030(1)(d).
In view of our disposition of this case, we vacate the lanction imposed and remand for reconsideration in he light of this opinion of an appropriate sanction for he college’s retaliatory actiotis referred to in the previous paragraph.
Affirmed in part, reversed in part, and remanded vdth instructions.