S055649, Opinion — Cuff v. Department of Public Safety Standards

462
Argued and submitted September 18, decision of Court of Appeals and order of
Department of Public Safety Standards and Training affirmed December 18, 2008
Paul D. CUFF,
Petitioner on Review,
v.
DEPARTMENT OF PUBLIC SAFETY
STANDARDS AND TRAINING,
Respondent on Review.
(DPSST 114352; CA A132424; SC S055649)
198 P3d 931

Cite as 345 Or 462 (2008) 	463
CJS, Municipal Corporations§ 450.
En Banc
On review from the Court of Appeals.*
Daryl S. Garrettson, of Garrettson, Gallagher, Fenrich
and Makler, P.C., Portland, argued the cause and filed the
brief for petitioner on review. With him on the brief was
Patricia Bridge Urquhart, Portland.
Erin C. Lagesen, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
GILLETTE, J.
The decision of the Court of Appeals and the order of the
Department of Public Safety Standards and Training are
affirmed.
* Appeal from order of the Department of Public Safety Standards and
Training. 217 Or App 292, 175 P3d 983 (2007).

464 	Cuffv. Department of Public Safety Standards
GILLETI'E, J.
In this administrative law case, petitioner, a county
public safety officer, seeks review of an order of the Department
of Public Safety Standards and Training (DPSST) that
revoked his certification as a corrections officer on the ground
that he failed to meet minimum moral fitness standards. On
judicial review, the Court of Appeals affirmed DPSST's
action. Cuff v. Department of Public Safety Standards, 217
Or App 292, 175 P3d 983 (2007). We allowed review and now
affirm the decision of the Court of Appeals.
The facts are not in dispute. Petitioner is a correc-
tions officer for Washington County. At the time of the events
that eventually resulted in the revocation of his certification,
petitioner was employed in the county's transport division,
driving inmates into and out of the county in a commercial-
sized bus. In January 1999, petitioner was subjected to a
routine drug-screening urinalysis and tested positive for
marijuana use. When confronted with the results of the test,
petitioner initially denied using illegal drugs. 	However,
during 	the 	ensuing 	investigation, 	petitioner 	admitted
purchasing marijuana once and then using the drug off duty
nearly every day for a month before the test. In March 1999,
the county fired petitioner.
Petitioner's union, the Washington County Police
Officers' Association, contested petitioner's firing by filing a
grievance 	under 	the 	collective 	bargaining 	agreement
between the union and the county. That collective bargaining
agreement required the employer to provide counseling to an
employee after a positive drug test and denied the employer
the right to discipline the employee unless the employee had
previously tested positive for drug use or had refused treat-
ment. The case was arbitrated. The arbitrator agreed with
petitioner and ordered that he be reinstated. The county
refused to reinstate petitioner and the union then filed a
proceeding on 	petitioner's behalf with the Employment
Relations Board (ERB). Before ERB, the county argued that
reinstatement would violate public policy. ERB disagreed
and ordered the county to reinstate petitioner.
This court ultimately upheld that ERB decision in
Washington Cty. Police Assn. v. Washington Cty., 335Or198,

Cite as 345 Or 	465
63 P3d 1167 (2003). The court rejected the county's argument
that ORS 181.662 (1999), the public safety officer certifica-
tion revocation statute in effect when the county fired peti-
tioner, constituted a clear statement of public policy against
the continued certification of public safety officers who have
used controlled substances, including marijuana. Id. at 206.
In so holding, the court observed that whether petitioner
could have had his certification as a public safely officer
revoked for his conduct was not the issue; rather, the issue
was only whether petitioner should be reinstated, and ORS
181.662 (1999) did not speak to that question. Id. In any
event, the court stated, ORS 181.662 (1999) did not permit
revocation of a public safety officer's certification for drug use
unless the officer had been convicted of a crime based on such
use. 1 Id. For those reasons, the court did not agree that ORS
181.662 (1999) defined a clear public policy against the con-
tinued certification of a public safety officer who had not been
convicted of any offense, much less establish a clear public
policy on the separate question of such an officer's reinstate-
ment. Id. Based on this court's decision in Washington Cty.,
the county reinstated petitioner in June 2003.
Meanwhile, 	in 	October 	1999, 	the 	legislature
amended the certification revocation statute, adding a provi-
sion that permits revocation of a public safety officer's certi-
fication on a finding that:
"The public safety officer or instructor does not meet the
applicable minimum standards, minimum training or the
terms and conditions established under ORS 181.640(1)(a)
to (d)." 2
ORS 181.622(1)(c). ORS 181.640, in turn, directed (and con-
tinues to direct) DPSST and the Board on Public Safety
1 Petitioner had not been charged with or convicted of any crime based on his
purchase or use of marijuana.
2 The relevant subsections of ORS 181.662 were renumbered in 1999, so that
the certification revocation provisions at issue now are located at ORS 181.662( 1).
In addition, ORS 181.662 has since been amended in other ways that do not bear on
our analysis in this case. We also note that, shortly after the legislature amended
ORS 181.662 to add paragraph (l)(c), BPSST adopted a corresponding change to
the administrative rule governing certification revocation, making a public safety
officer's failure to meet minimum moral fitness standards a discretionary ground
for revoking his or her certification. OAR 259-008-0070(3)(c).

466 	Cuff v. Department of Public Safety Standards
Standards and Training (BPSST) to promulgate rules estab-
lishing minimum standards for, among other things, moral
fitness. 3 And, pursuant to that directive, BPSST adopted
OAR 259-008-0010(6), 4 which provides, in part:
"Moral Fitness (Moral Character). All law enforcement
officers must be of good moral fitness.
"(a) 	For purposes of this standard, lack of good moral
fitness means conduct not restricted to those acts that
reflect moral turpitude but rather extending to acts and
conduct which would cause a reasonable person to have
substantial doubts about the individual's honesty, fairness,
respect for the rights of others, or for the laws of the state or
the nation."
In January 2004, seven months after the county
reinstated 	petitioner, 	DPSST 	notified petitioner that it
intended to revoke his certification as a public safety officer
on the ground that he failed to meet minimum moral fitness
standards under OAR 259-008-0010. In particular, DPSST
relied on the facts that petitioner used illegal drugs in
December 1998 and January 1999 and that he lied during the
investigation into his conduct.
Petitioner requested and was provided an adminis-
trative hearing. After the hearing, which was held in December
2004, the Office of Administrative Hearings (OAR) issued a
proposed order that would have held that DPSST had not
proved 	that 	petitioner 	lied 	during 	the 	investigation
(although he initially lied to his supervisors), but that peti-
tioner's off-duty drug use in December 1998 and January
1999 demonstrated that petitioner lacked moral fitness, and
" ORS 181.640(1)(a) provides:
"In accordance with any applicable provision of ORS chapter 183, to pro-
mote enforcement oflaw and fire services by improving the competence of pub-
lic safety personnel and their support staffs, and in consultation with the agen-
cies for which the Board on Public Safety Standards and Training and
Department of Public Safety Standards and Training provide standards, cer-
tification, accreditation and training:
"(a) The department shall recommend and the board shall establish by
rule reasonable minimum standards of physical, emotional, intellectual and
moral fitness for public safety personnel and instructors."
4 At the time that petitioner committed the drug use that led to his firing in
1999, the regulation was numbered as OAR 259-008-0010(5).

Cite as 345 Or 	467
that that lack of moral fitness was a sufficient basis for revok-
ing petitioner's certification. In making those proposed find-
ings, the OAH declined to consider evidence relating to peti-
tioner's conduct and job performance after the period of
marijuana use and the ensuing investigation, ruling that evi-
dence of petitioner's later conduct was not relevant to the
only issues to be resolved at the hearing, viz., whether peti-
tioner had consumed marijuana in December 1998 and
January 1999 and whether he was dishonest during the
investigation. The OAH further reasoned that, because the
case involved a revocation, petitioner's current fitness was
not at issue. Based on the foregoing, the OAH concluded that
petitioner's certification should be revoked.
Petitioner filed exceptions to that proposed order,
arguing, among other things, that evidence of petitioner's
conduct after the period of marijuana use in January 1999
was relevant to the proceeding insofar as the moral fitness
standard, properly understood, was an on-going standard of
continued fitness. The OAH eventually issued a corrected
proposed order, but that order did not address petitioner's
concern that the OAH erroneously failed to consider peti-
tioner's conduct after January 1999.
After 	reviewing 	the 	corrected 	proposed 	order,
DPSST issued 	a 	final 	order in January 2006 revoking
petitioner's 	certification. 	In that order, 	DPSST 	directly
addressed petitioner's argument that his conduct after the
January 1999 drug use was relevant to whether petitioner
lacked moral fitness. DPSST explained that it had considered
all the evidence in the record in assessing whether petitioner
lacked moral fitness, including petitioner's evidence of his
subsequent conduct:
"Pursuant to OAR 259-008-0010(5) (1999), DPSST
determines whether an officer possesses the requisite
moral fitness by conducting 'a thorough background check.'
Past acts are the only possible basis for that determination.
[Petitioner], himself, admitted that his [1998-99] conduct
fell below the standard of moral fitness required of a public
safety officer. * * *
"In light of [OAH's] initial evidentiary ruling, and sub-
sequent decision to treat evidence of [petitioner's] current

468 	Cuffv. Department of Public Safety Standards
job performance as an offer of proof, DPSST reviewed and
considered th[at] evidence. Even under such an analysis,
[petitioner's] current job performance fails to persuade
DPSST that [petitioner] no longer lacks moral fitness.
[Petitioner] is not able to 'unring the bell' of his past unlaw-
ful conduct and judgmental errors by the evidence pre-
sented on his behalf during the hearing.
"Contrary to [petitioner's] assertions, persuasive and
substantial evidence exists in the record that [petitioner's]
behavior may have impacted the public's perception and
the agency's confidence in [petitioner's] ability to perform
competently. ***As [one witness] indicated, [petitioner's]
substance abuse problem may be the subject of rehabilita-
tion, but rehabilitation would not alter the fact that [peti-
tioner], as a sworn law enforcement officer, repeatedly
violated the law by unlawfully purchasing and using con-
trolled substances. Abiding by and upholding the laws
which officers enforce is a core value. The core values are
reflected in the agency's rules, the law enforcement Code of
Ethics, and Washington County's zero-tolerance approach
to drugs. * * * These values are reflected in DPSST's
standards.
"These factors were sufficient for DPSST and [peti-
tioner's supervisors] to have substantial doubts about [peti-
tioner's] honesty, fairness, respect for the rights of others,
or for the laws of the state. These parties concluded that
[petitioner's] conduct was prejudicial to the administration
of justice in that [petitioner] broke the very laws he had
sworn to uphold and that [petitioner's] off-the-job behavior
adversely reflected on his fitness to perform as a law
enforcement officer. DPSST finds substantial evidence in
the record to determine that [petitioner's] unlawful pur-
chase and repeated unlawful use of controlled substances is
sufficient, independent of any untruthfulness, to justify
revocation of his certifications as a law enforcement officer.
"* * * * *
"DPSST is persuaded that [petitioner's] conduct would
cause a reasonable person to have substantial doubts about
[petitioner's] respect for the laws of the State of Oregon,
given the finding that [petitioner] committed approxi-
mately thirty (30) unlawful acts over a period of approxi-
mately thirty (30) days. This blatant disrespect for the laws

Cite as 345 Or 462 (2008) 	469
of Oregon amounts to a lack of good moral fitness, which all
corrections officers must possess."
DPSST then revoked petitioner's certification.
Petitioner sought judicial review of DPSST's order
by the Court of Appeals. In that court, petitioner raised five
assignments of error, only one of which petitioner pursues in
this court, viz., that DPSST did not have authority to revoke
his certification based on his 1998-99 conduct because the
statute and regulation in effect at the time of that conduct did
not authorize certification revocation on that basis, and the
legislature did not intend ORS 181.662(1)(c) and OAR 259-
008-0070(3)(c) (providing that lack of good moral fitness is
discretionary basis for denying or revoking certification) to
apply retroactively. 5 The Court of Appeals affirmed DPSST's
decision to revoke petitioner's certification, concluding that,
notwithstanding the fact that the text of ORS 181.662(1)(c)
does not indicate that the legislature intended that statute to
be retroactive, the statute is "remedial" in nature and, there-
fore, has retroactive effect. Cuff, 217 Or App at 298. For that
reason, the Court of Appeals concluded that DPSST did not
err in revoking petitioner's certification based on conduct
that occurred in 1998 and 1999. Id. at 300. As noted, we
allowed petitioner's request for review.
We begin our analysis by rejecting the premise of
both petitioner's argument and the Court of Appeals' analy-
sis, viz., the assumption that ORS 181.662(1)(c) is "retroac-
tive." As discussed above, ORS 181.662 provides, in part:
"(1) 	The Department of Public Safety Standards and
Training may * * *revoke the certification, of any* * *pub-
lic safety officer * * * based upon a finding that:
5 In addition to his argument in this court, petitioner argued in the Court of
Appeals that DPSST's reliance on ORS 181.662(1)(c) and OAR 259-008-0070(3)(c)
violated his state and federal constitutional rights not to be subject to ex post facto
laws; that there was not substantial evidence in the record to support DPSST's con-
clusion that petitioner lacked good moral fitness; that DPSST erred in finding that
petitioner failed to meet the minimum standards of moral fitness; and that
DPSST's interpretation of its governing statutes and regulations to permit revo-
cation of petitioner's certification based on his drug use created a conflict with the
collective bargaining laws of the state and infringed on the exclusive jurisdiction of
the Employment Relations Board. The Court of Appeals rejected those arguments
without discussion. Cuff, 217 Or App at 295 n 2. Petitioner does not challenge that
aspect of the Court of Appeals decision in this court.

470 	Cuffv. Department of Public Safety Standards
"* * * * *
"(c) 	The public safety officer * * * does not meet the
applicable minimum standards, minimum training or the
terms and conditions established under ORS 181.640(1)(a)
to (d)."
As a matter of simple grammar, the key phrases of those pro-
visions are worded in the present tense. That is, the statute
gives DPSST the present authority to revoke a public safety
officer's certification based on the public safety officer's pres-
ent failure to "meet the applicable minimum standards"
established under ORS 181.640(1)(a) to (d). The plain word-
ing of that statute does not support an interpretation that
DPSST has authority to revoke a public safety officer's certi-
fication because that officer failed to meet minimum stan-
dards at some point in the past. ORS 181.662(1)(c) is not, by
its terms, retroactive.
In 	addition, 	the 	mm1mum 	standards 	for 	moral
fitness 	that 	DPSST 	established 	by 	rule 	under 	ORS
181.640(1)(a) to (d) are not themselves retroactive. Again, as
noted above, OAR 259-008-0010(6)(a) sets out the minimum
standard for moral fitness, providing, in part:
"For purposes of this standard, lack of good moral fit-
ness means conduct not restricted to those acts that reflect
moral turpitude but rather extending to acts and conduct
which would cause a reasonable person to have substantial
doubts about the individual's honesty, fairness, respect for
the rights of others, or for the laws of the state or the
nation."
That regulation also is worded to require consideration of a
public safety officer's present fitness. By defining conduct
demonstrating a lack of good moral fitness to include conduct
that "would cause a reasonable person to have substantial
doubts" about, among other things, the public safety officer's
respect for the law, the focus of OAR 259-008-0010(6)(a) is on
an officer's conduct that would cause a reasonable person to
have present substantial doubts about that officer's fitness.
OAR 	259-008-0010(6)(a), 	by 	its 	terms, 	likewise 	is 	not
retroactive.

471
The only remaining question thus is whether it
somehow was impermissible for DPSST to consider peti-
tioner's December 1998 and January 1999 drug use in eval-
uating petitioner's present moral fitness. In considering the
propriety of an agency's action in a contested case, 6 this court
examines whether the agency acted "[o]utside the range of
discretion delegated to the agency by law" or "[o]therwise in
violation of a constitutional or statutory provision." ORS
183.482(8)(b)(A) and (C).
We first observe that it is difficult to conceive of any
viable way to evaluate a person's present moral fitness with-
out considering the person's past conduct. A person's "past
actions are relevant to his present character and fitness."
In re Beers, 339 Or 215, 224, 118 P3d 784 (2005) (bar admis-
sion case; citing In re Fine, 303 Or 314, 322, 736 P2d 183
(1987) (person's past acts bear on his present candor, credi-
bility, and trustworthiness)). Moreover, nothing in the text of
either ORS 181.662(1)(c) or OAR 259-008-0010(6) expressly
limits in any way the temporal scope of the evidence that
DPSST may consider in evaluating an officer's present fit-
ness. It is indisputable that, had petitioner purchased and
used illegal drugs every day for a month in the more recent
past, that conduct would be sufficient grounds for revocation
of his certification.
In addition, context demonstrates that DPSST is
expected to consider all relevant evidence in making its
determination. ORS 181.662(1) requires DPSST to provide
notice and a hearing under ORS 181.661 in the event it
decides to deny, suspend, or revoke an officer's certification.
ORS 181.661, in turn, requires such hearings to be conducted
in accordance with ORS 183.415 and ORS 183.417, that is, in
accordance with the standards for contested case hearings. In
a contested case hearing, "[i]rrelevant, immaterial or unduly
repetitious evidence shall be excluded," but "[a]ll other evi-
dence of a type commonly relied upon by reasonably prudent
6 Under ORS 181.662(1), when DPSST determines that denial, suspension, or
revocation of a public safety officer's certification is appropriate, DPSST is required
to provide the officer with notice and an opportunity for a hearing "consistent with
the provisions of ORS 181.661." ORS 181.661, in turn. provides that the notice and
opportunity for a hearing be provided "in accordance with ORS 183.415 and
183.417," which set out procedures for notice and hearings in contested cases.

472 	Cuffv. Department of Public Safety Standards
persons in conduct of their serious affairs shall be admissi-
ble." ORS 183.450(1). Although it might be argued that evi-
dence of petitioner's purchase and use of illegal drugs in
December 1998 and January 1999 is less relevant than evi-
dence of more recent conduct would be, we cannot conclude
that it is irrelevant to DPSST's determination of petitioner's
present moral fitness. That is, evidence of petitioner's past
conduct is "of a type commonly relied upon by reasonably
prudent persons in conduct of their serious affairs" and,
therefore, DPSST acted within its discretion in relying on it.
Petitioner, nonetheless, insists that it is impermis-
sibly "retroactive" to consider evidence of conduct that was
not grounds for revocation when he committed it. That argu-
ment might be persuasive if petitioner plausibly could con-
tend that he did not have any reason to believe that his con-
duct in purchasing and using illegal drugs in December 1998
and January 1999 fell below minimum standards for public
safety officers at the time that he committed it. Petitioner
cannot do so, however. As DPSST noted in its order revoking
petitioner's certification, petitioner himself admitted that
that conduct did not meet minimum fitness standards for a
law enforcement officer at the time that it occurred.
Nothing in the text or context of ORS 181.662(1)(c) or
OAR 259-008-0010(6) precludes DPSST from considering, in
a certification revocation proceeding, any and all conduct
that bears on petitioner's current moral fitness as a law
enforcement officer, whenever that conduct occurred. That is
the only issue before us. We therefore cannot say that DPSST
violated any provision oflaw in considering evidence of peti-
tioner's December 1998 and January 1999 drug use. It fol-
lows that DPSST's order must be affirmed.
The decision of the Court of Appeals and the order of
the Department of Public Safety Standards and Training are
affirmed.