Moon v. GOVERNMENT STANDARDS AND PRACTICES

108 P.3d 112, 198 Or. App. 244, 2005 Ore. App. LEXIS 230
CourtCourt of Appeals of Oregon
DecidedMarch 9, 2005
Docket00-239EDZ, A121702
StatusPublished
Cited by4 cases

This text of 108 P.3d 112 (Moon v. GOVERNMENT STANDARDS AND PRACTICES) 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
Moon v. GOVERNMENT STANDARDS AND PRACTICES, 108 P.3d 112, 198 Or. App. 244, 2005 Ore. App. LEXIS 230 (Or. Ct. App. 2005).

Opinion

108 P.3d 112 (2005)
198 Or. App. 244

Kenneth MOON, Petitioner,
v.
GOVERNMENT STANDARDS AND PRACTICES COMMISSION, Respondent.

00-239EDZ, A121702.

Court of Appeals of Oregon.

Argued and Submitted October 29, 2004.
Decided March 9, 2005.

John M. Petshow, Portland, argued the cause and filed the briefs for petitioner.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and WOLLHEIM and SCHUMAN, Judges.

WOLLHEIM, J.

Petitioner seeks judicial review of an order of the Oregon Government Standards and Practices Commission (GSPC) concluding that he violated ORS 244.040(1)(a) and ORS 244.120(1)(c) on nine occasions and imposing a civil penalty of $1,800 and a forfeiture in *113 the amount of $5,277. Petitioner raises five assignments of error, of which we discuss only the second. Petitioner argues that GSPC erred when it determined that petitioner had not timely requested that GSPC file an action against him in Marion County Circuit Court instead of proceeding with a contested case hearing. ORS 244.260(8). We review for errors of law, ORS 183.482(8), and reverse.[1]

Petitioner has been the district manager of the Boring Water District for over 20 years. Petitioner came under investigation by GSPC because it received complaints that he was hiring his son to do work for the district without notifying the district board in writing as required by ORS 244.120(1)(c). GSPC mailed two letters to petitioner. The dispute here is which of the letters constituted notification of an "action by order to move to a contested case proceeding" under ORS 244.260(8) and thus triggered the 21-day time limit within which petitioner was required to request that GSPC file an action against him in Marion County Circuit Court.

The procedural facts are undisputed. In a letter dated February 21, 2001, GSPC informed petitioner that it would conduct a meeting on March 2, 2001, and that it would take "one of two actions at that time" concerning the complaint. The letter stated that

"GSPC will either conclude that there is not an appearance of a violation and dismiss the matter or it will conclude that there is an appearance of a violation and the matter will be ordered to a contested case hearing. Because this proceeding will not be a contested case hearing, the GSPC will not entertain lengthy argument or other oral presentations. Brief oral statements, including public comment, will be permitted pursuant to GSPC rule."

(Underscoring in original.) Petitioner did not attend the meeting.

After GSPC conducted its meeting, it mailed a letter dated March 2, 2001, to petitioner that stated, in part:

"The Oregon Government Standards and Practices Commission (GSPC), at its meeting on March 2, 2001, made a preliminary finding that you violated Oregon Government Standards and Practices law.
"A proposed stipulated final order and notice of your right to request a contested case hearing will be submitted for your consideration as soon as it is prepared by GSPC staff. If you would prefer to have the outcome of this matter determined by a court, you may request the GSPC to file a lawsuit against you in the Marion County Circuit Court. Such a request must be made in writing within 21 days after you receive this letter."

(Emphasis added.)

Then, on March 27, 2001, GSPC sent petitioner another letter with a six-page proposed stipulated final order attached, which stated, in part:

"The Oregon Government Standards and Practices Commission (GSPC) at its meeting on March 2, 2001, made a preliminary finding that you violated Oregon Government Standards and Practices law. Enclosed herewith is a proposed stipulated final order which, if executed by you and the chairperson of the GSPC, would conclude this matter. Please review this document carefully to see if the terms and conditions it contains are acceptable to you. As this is a proposal, some of the provisions are subject to negotiation. Accordingly, you are free to submit a counter-proposal including changes to the terms and conditions. You may wish to *114 consult legal counsel in the course of making such a determination.
"If you disagree with the proposed findings or the proposed order, you may request a hearing pursuant to the Administrative Procedures Act, Oregon Revised Statutes Chapter 183. Your written request must be made within 21 days after you receive this letter * * *. In the alternative, you may make a written request to the GSPC to file a lawsuit against you in the Marion County Circuit Court as provided by ORS 244.260(8). If you do not request a hearing or the filing of a lawsuit within this 21-day period, your right to either shall be considered waived unless good cause is shown. A default final order will be entered and all information in the GSPC files on this matter shall become part of the record."

On April 12, 2001, within 21 days of the March 27 letter, petitioner wrote GSPC to inform it that he chose to require it to file an action against him in the Marion County Circuit Court in lieu of a contested case proceeding. GSPC responded that petitioner was no longer eligible to opt for the lawsuit procedure because more than 21 days had elapsed since the March 2 letter. Petitioner replied that he disagreed with GSPC's conclusion that the March 2 letter notified him of the commission's action by order to move to a contested case proceeding. Petitioner also indicated that, should GSPC stand by its conclusion, he would request a contested case hearing. GSPC stood by its conclusion that petitioner's request that GSPC file an action against him was untimely and granted petitioner a contested case hearing.

At the hearing, petitioner moved to dismiss the proceedings on the basis that he timely requested that GSPC file an action against him. The administrative law judge (ALJ) hearing the matter agreed with petitioner that the March 2 letter did not notify petitioner of GSPC's action by order moving the matter to a contested case proceeding, thus making petitioner's request that GSPC file an action against him timely. The ALJ proposed an order that the contested case proceeding be dismissed accordingly. However, GSPC issued an interim order rejecting the ALJ's proposed order and directing the ALJ to hear the merits of the case.

The contested case hearing proceeded with a different ALJ presiding over the hearing. After both sides presented their case, the ALJ issued a proposed order finding petitioner not to be in violation of any of the statutory provisions alleged.

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Cite This Page — Counsel Stack

Bluebook (online)
108 P.3d 112, 198 Or. App. 244, 2005 Ore. App. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moon-v-government-standards-and-practices-orctapp-2005.