SERCOMBE, P.J.
Petitioner seeks judicial review of a final order of the Department of Public Safety Standards and Training (DPSST) that revoked her certifications as a corrections officer on the ground that she failed to meet minimum moral fitness standards. Petitioner raises two assignments of error. We reject her second assignment without discussion and write to address her first assignment, in which petitioner asserts that DPSST erred when it concluded, on summary determination, that petitioner engaged in conduct that demonstrated disregard for the rights of others, OAR 259-008-0070(4)(b)(B), misuse of authority, OAR 259-008-0070(4)(b)(C), and misconduct, OAR 259-008-0070(4)(b)(E). As explained below, we affirm.
OAR 259-008-0010(6). Under OAR 259-008-0070(4)(b), discretionary disqualifying misconduct
Thus, if a law enforcement officer is found to have engaged in conduct that falls within one of the categories listed in OAR 259-008-0070(4)(b), the officer may have his or her certifications revoked for lack of good moral fitness. See OAR 259-008-0070(9) (setting forth procedure for revocation of corrections certifications).
With that context in mind, we turn to the background facts of this case. The following facts from the final order were undisputed on summary determination. Petitioner, who
In the first incident at issue, petitioner was working the graveyard shift at the work center along with another deputy, Jochums. During that shift, petitioner and Jochums began conducting a routine head count of inmates. Although inmates usually sat quietly on their bunks during head counts, on this occasion a male inmate followed the two deputies, making jokes and annoying them. The deputies requested that the inmate stop following them, but he did not comply. While in an area near the inmate's bed, petitioner handcuffed the inmate's hand to a bunk bed post. "The inmate, the deputies, and other inmates all laughed as this occurred," and, while dragging and tipping the bed, the inmate asked petitioner, "Is that all you got?" She responded by handcuffing the inmate's other hand to another bunk bed. "The inmate was left standing with one hand cuffed to each bunk bed as the deputies left and continued the head count."
After completing the head count, petitioner and Jochums returned to the control room where they "turned out the primary lights to the facility." Petitioner heard laughter coming from the dormitory where she had left the inmate handcuffed. After picking up a camera, she returned to that dormitory where she found the inmate standing, still handcuffed to the two bunks, with his pants down around his ankles. Petitioner attempted to photograph the inmate and then released him and told him to go to bed. Although she considered her attempt to photograph the inmate to be a joke, petitioner also told Jochums that their handling of the situation with the inmate "probably wasn't very smart."
The following month, in the other incident at issue, petitioner, Jochums, and another deputy, Brown, were on duty at the work center. As a joke, the deputies decided to place two inmates, who were to be released that day, in a holding cell in order to allow other inmates to "say goodbye to them." Petitioner placed the two inmates in the holding cell, and other inmates went to the window of the cell to say goodbye. Jochums and Brown also connected a surveillance camera that petitioner had purchased to a television monitor that could be seen throughout the facility. Brown held the camera to broadcast images of the two inmates in the holding cell to the entire work center. Petitioner then took the camera and "told the inmates to `do something for the camera.'" In response, the inmates pretended to hug and kiss. After several minutes, petitioner released the two inmates from the holding cell. The inmates were not upset by the incident, in which they had willingly participated.
Petitioner's supervisors learned about the two incidents and, after conducting an investigation, the county imposed a two-day suspension without pay for the holding cell incident and terminated petitioner's employment as a result of the handcuffing incident. A report stating that petitioner had been discharged for cause was forwarded to DPSST, and DPSST issued a notice of its intent to revoke petitioner's certificates pursuant to ORS 181.662(4)
With respect to the holding cell incident, the arbitrator noted that the county chose to "charge" petitioner under a section of its code of conduct that "requires that all persons be treated `with respect and courtesy,'" and, therefore, the arbitrator was required to "evaluate whether the evidence in the
(Footnote omitted.)
With respect to the handcuffing incident, the arbitrator noted that petitioner had admitted that she
The arbitrator noted that he was "particularly troubled by the fact that * * * [petitioner] and Jochums ultimately left [the inmate] alone in a dorm full of other inmates, wrists cuffed to the vertical posts of separate double bunks with his arms spread apart, facing a wall, and (at least for a portion of the time) in the dark." (Footnote omitted.) In the arbitrator's view, the deputies
The arbitrator, nonetheless, found that the county
According to the arbitrator, in light of petitioner's admission that she had acted inappropriately, the "record does not establish * * * that [petitioner] is beyond rehabilitation." Because of all the circumstances — including the fact that Jochums had received only a one-day suspension — the arbitrator held that the appropriate sanction was a 30-day unpaid suspension and ordered petitioner reinstated.
The county initially did not comply with the arbitrator's decision; it refused to reinstate petitioner. For that reason, petitioner's union filed a complaint with the Employment Relations Board (ERB). Ultimately, ERB issued an order in which it concluded that "the law required [it] to enforce the arbitrator's award." Accordingly, it ordered the county to "cease and desist from refusing to comply with the arbitrator's award." Thereafter, petitioner's employment was reinstated.
Meanwhile, after the arbitrator had issued his decision and before ERB issued its order, DPSST sent petitioner a letter advising her that, unless she signed a stipulated order revoking her certifications, her case would be presented to the "Corrections Policy Committee [(policy committee)] who [would] review
DPSST moved for summary determination of the legal issues pursuant to OAR 137-003-0580. That rule "provides for an administrative `summary determination' proceeding that is akin to a trial court summary judgment proceeding under ORCP 47." Lucke v. DPSST, 247 Or.App. 630, 633, 270 P.3d 251 (2012). Specifically, under OAR 137-003-0580, an administrative law judge (ALJ) shall grant a motion for summary determination if
OAR 137-003-0580(6). In considering such a motion, the ALJ must view "all evidence in a manner most favorable to the non-moving party or non-moving agency." OAR 137-003-0580(7).
Petitioner opposed DPSST's motion for summary determination. She asserted that, in light of the arbitrator's decision in the case relating to her employment, DPSST violated OAR 259-008-0070(9) when it referred "the holding cell incident to the Policy Committee and Board for review." (Boldface omitted.) Petitioner also asserted that issues of fact remained regarding whether she was of "good moral fitness." (Boldface omitted.) The matter was assigned to an ALJ from the OAH, who issued a ruling on summary determination and a proposed order concluding that DPSST was entitled to a favorable ruling as a matter of law that petitioner lacked good moral fitness under OAR 259-008-0010(6). Specifically, the ALJ concluded that petitioner's conduct fell within several categories of discretionary disqualifying misconduct under OAR 259-008-0070(4)(b): disregard for the rights of others, OAR 259-008-0070(4)(b)(B); misuse of authority, OAR 259-008-0070(4)(b)(C); and misconduct, OAR 259-008-0070(4)(b)(E). The ALJ further concluded that, as a sanction for her misconduct, DPSST could revoke petitioner's certifications. Petitioner filed exceptions to the proposed order. However, DPSST rejected those exceptions and adopted the proposed order in its entirety.
On judicial review, petitioner contends that DPSST erred in concluding, on summary determination, that she lacked good moral fitness. Petitioner makes several arguments in support of her contention. On review, we address one of those arguments and reject the remainder without discussion. Specifically, we write to discuss petitioner's contention that DPSST violated OAR 259-008-0070(9) by "referring the holding cell incident to the Policy Committee and Board for review." (Boldface omitted.)
OAR 259-008-0070(9) describes the procedure by which DPSST may revoke a public safety professional's certifications:
Here, as noted, there was an arbitrator's opinion related to petitioner's employment. Petitioner asserts that, by referring the holding cell incident to the policy committee along with the handcuffing incident, DPSST violated OAR 259-008-0070(9)(c)(E)(iii). According to petitioner, the "arbitrator specifically found that the holding cell incident was not `misconduct' and ordered Marion County to withdraw all disciplinary action for that incident." Thus, in her view, under the rule, "DPSST should have administratively closed at least that part of [the] matter and not presented that information to the ALJ." DPSST responds that, "[c]ontrary to petitioner's assertion, the arbitrator did not find that petitioner's conduct in the holding cell incident was not misconduct." (Emphasis in original.) Instead, DPSST asserts, the arbitrator concluded only that her conduct in that incident did not violate the section of the code of conduct asserted by the county. DPSST points out that the arbitrator specifically stated that petitioner "clearly acted unprofessionally" and inappropriately and that he "h[e]ld merely that the proof in the record does not support the County's burden to establish a violation of the specific rule relied upon in imposing the suspension." Thus, in its view, "petitioner's reliance on OAR 259-008-0070(9)(c)(E)(iii) is misplaced." We agree with DPSST.
Resolution of the parties' arguments turns on a proper understanding of the rule. "Generally speaking, we interpret rules by applying the same analytical framework that applies to the interpretation of statutes." Brand Energy Services, LLC v. OR-OSHA, 261 Or.App. 210, 214, 323 P.3d 356 (2014). Specifically, we look to the text of the rule, in the context of other portions of the rule and related laws. State v. Teixeira, 259 Or.App. 184, 190, 313 P.3d 351 (2013). We may also look to the rule's history, including the rule's adoption record, to the extent that it is helpful. See State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009); see also Brand Energy Services, LLC, 261 Or. App. at 214, 323 P.3d 356 (we may consider a rule's adoption history); Thomas Creek
Again, under OAR 259-008-0070(9)(c)(E)(i), in misconduct cases where there has been an arbitrator's opinion related to a public safety professional's employment, "[i]f the arbitrator's opinion finds that underlying facts supported the allegations of misconduct," then DPSST is to proceed through the process set forth in OAR 259-008-0070(9)(c)(A) to (D). However, under OAR 259-008-0070(9)(c)(E)(iii), "[i]f the arbitrator's opinion finds that the underlying facts did not support the allegation(s) of misconduct," DPSST is to notify the entity requesting revocation of the public safety professional's certification and "administratively close the matter." The issue here is whether the arbitrator's determination regarding the holding cell incident is a finding that the "underlying facts did not support the allegation(s) of misconduct" under OAR 259-008-0070(9)(c)(E)(iii). Thus, we must determine the meaning of the term "allegation(s) of misconduct" as used in the rule.
The term "misconduct" is used throughout the rule, and we understand the rule to use the term consistently. See Pete's Mountain Homeowners v. Ore. Water Resources, 236 Or.App. 507, 518, 238 P.3d 395 (2010) ("It is a longstanding principle of statutory construction that words may be assumed to be used consistently throughout a statute."). As noted, under the rules, officers are to be of good moral fitness and, under OAR 259-008-0010(6), an officer lacks good moral fitness if he or she engages in either "[m]andatory disqualifying misconduct" under OAR 259-008-0070(3) or "[d]iscretionary disqualifying misconduct" under OAR 259-008-0070(4). Those sections of OAR 259-008-0070, in turn, list conduct by an officer that will be either mandatory grounds for revoking certification or, in the case of OAR 259-008-0070(4), "[d]iscretionary disqualifying misconduct" that may constitute grounds for revoking a public safety professional's certification.
OAR 259-008-0070(9)(c)(E), by its terms, applies to "misconduct cases" — that is, it applies in cases where an officer is alleged to have engaged in misconduct, as set forth within earlier sections of the rule. In such cases, where there has also been an arbitrator's opinion relating to the officer's employment, if the arbitrator's opinion finds that the underlying facts of the case do not support "the allegation(s) of misconduct," then the case must be administratively closed. That is, if the arbitrator's opinion in the employment case has addressed the allegation or allegations of misconduct that are made under OAR 259-008-0070, then that decision resolves the issue in the certification case before DPSST. We interpret "the allegation(s) of misconduct" in OAR 259-008-0070(9)(c)(E) to refer to the allegations in the "misconduct case[]" that is being presented to the board.
Here, of course, petitioner's case is such a "misconduct" case. DPSST proposed to revoke petitioner's certification as a result of "[d]iscretionary disqualifying misconduct" under OAR 259-008-0070(4). It is also a case where there was an arbitrator's decision relating to petitioner's employment. However, the arbitrator's decision does not address the allegations of misconduct at issue in the DPSST case under OAR 259-008-0070(4). In this case, DPSST asserted that petitioner's conduct fell within four categories of discretionary disqualifying misconduct under the rule: "Category II: Disregard for the Rights of Others;" "Category III: Misuse of Authority;" "Category IV: Gross Misconduct;" and "Category V: Misconduct." The arbitrator's decision in the employment case found that petitioner engaged in the conduct alleged (the handcuffing incident and the holding cell incident) but concluded that the holding cell incident was not a violation of the
In light of the foregoing, we conclude that DPSST did not err in revoking petitioner's corrections certifications.
Affirmed.