Delehant v. Board on Police Standards and Training

• Decision Date: 05 August 1993
• Parties: Robert Anthony DELEHANT, Petitioner on Review, v. BOARD ON POLICE STANDARDS AND TRAINING, Respondent on Review. CA A65552; SC S39796.
• Court: Oregon Supreme Court

Page 1088

855 P.2d 1088

317 Or. 273

Robert Anthony DELEHANT, Petitioner on Review, v. BOARD ON POLICE STANDARDS AND TRAINING, Respondent on Review.

CA A65552; SC S39796.

Supreme Court of Oregon In Banc.

Argued and Submitted May 6, 1993.

Decided Aug. 5, 1993.

W.D. Cramer, Jr., of Cramer & Mallon, Burns, argued the cause and filed the petition for petitioner on review.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause and filed the response for respondent on review. With him on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GILLETTE, Justice.

This is a judicial review of a contested case decided by the state agency that was known as the Board on Police Standards and Training ("BPST"). ¹ BPST denied petitioner's application for a basic police certificate on the ground that he previously had been convicted of several crimes in Idaho. The Court of Appeals, with one judge dissenting, affirmed the order of BPST. Delehant v. Board on Police Standards, 115 Or.App. 598, 839 P.2d 737 (1992). We allowed review and now affirm.

The pertinent facts are not in dispute. While a young man living in Idaho, petitioner was convicted of petty theft, trespassing, and driving under the influence of intoxicants. All of those offenses were misdemeanors under Idaho law. In 1985, petitioner began working for the city of Hines, Oregon, as a police dispatcher and reserve officer. During the next year, an Idaho court set aside petitioner's convictions and dismissed the cases against him, thereby restoring petitioner's civil rights under Idaho law. ²

Petitioner then went to work as a police dispatcher in the city of Burns. In 1987, he began work as a full-time Burns police officer. In 1988, petitioner completed his course of training at the police academy and requested certification as a police officer from BPST. ³ Before completing his application form, petitioner sought advice from BPST personnel as to how he should treat his dismissed convictions in Idaho. Petitioner was advised to report the convictions and to attach to the application a copy of the order setting them aside. He did that.

In January 1989, BPST denied petitioner's application for certification, relying on the Idaho convictions. Petitioner requested a hearing, which was scheduled for July 1989. Just four days before that hearing, petitioner obtained an order from the Idaho trial court "expunging" the records of his convictions. At the hearing, petitioner's application was supported by several law enforcement officials who were familiar with his work. Others supported his application by letter.

In December 1989, BPST voted again to deny certification. In April 1990, after petitioner had responded to BPST's findings of fact, BPST issued an Amended Final Order denying certification. In that order, BPST relied on ORS 181.662(1)(b), which provides:

"The board may deny or revoke the certification of any police officer, corrections officer, parole and probation officer, telecommunicator or emergency medical dispatcher after written notice and hearing, based upon a finding that:

" * * * * * "(b) The officer * * * has been convicted of a crime in this state or any other jurisdiction."

In its Amended Final Order, BPST did not rely on or refer to its own rule governing denial of certification for conviction of a crime. At all material times before and at the start of petitioner's hearing before BPST in July 1989, that rule, former OAR 259-10-055(20)(a)(1), had provided:

"The Board may deny or revoke the certification of any officer * * * based upon a finding that the officer * * * had 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." ⁴

Thus, at the time of petitioner's hearing, although the statute authorized denial of certification for conviction of any "crime," BPST had limited itself by its rule to deny certification only on the basis of conviction of a felony. In February 1990, however, while petitioner's case still was pending before it, BPST adopted OAR 259-08-070, which provides in part:

"(1) Grounds for Denying or Revoking Certification of an Officer:

"(a) The Board may deny or revoke the certification of any police officer * * * based on a finding that:

" * * * * *

"(B) The officer has been convicted of a crime in this state or any other jurisdiction[.]"

Thus, after February 1990, BPST's rule paralleled the wording of the statute, ORS 181.662(1)(b), and permitted denial of certification for conviction of any "crime." Still, BPST's Amended Final Order of April 1990 did not refer to the rule.

After petitioner filed a petition in the Court of Appeals, seeking judicial review of BPST's Amended Final Order, BPST withdrew that order and issued a "Second Amended Final Order" in May 1991. ⁵ That order relied specifically on the recently promulgated OAR 259-08-070(1)(a)(B). It is that second amended order that was considered by the Court of Appeals and that now is before us.

Petitioner raises two claims of error before this court. ⁶ He argues, first, that BPST and the Court of Appeals were required by Article IV, section 1, of the Constitution of the United States ⁷ to give "full faith and credit" to the Idaho judgments dismissing the charges against him and expunging the records of his convictions. Second, he argues that application of the new rule, OAR 259-08-070(1)(a)(B), to his case was impermissible. We consider the latter argument first.

Petitioner does not claim that OAR 259-08-070(1)(a)(B), the rule under which he finally was disqualified, was promulgated improperly. Neither does he contend that BPST exceeded its authority in adopting the rule--as noted, the rule now mirrors the pertinent statute. Finally, petitioner does not deny that the rule validly was in effect at the time of BPST's final decision in his case. His sole complaint on this score is that his application nevertheless should have been judged under the somewhat more lenient administrative rule that was in effect both at the time that he applied for certification and at the time that his contested case hearing began.

Petitioner argues that application of the more recently promulgated rule to his case constituted "retroactive" application of the rule. We shall assume that he is correct. Retroactive application of a rule is not automatically impermissible, however. The question is one of intent of the promulgating agency or legislature. See, e.g., Boone v. Wright, 314 Or. 135, 138, 836 P.2d 727 (1992) (whether a statutory limitations period applies retroactively depends on the intent of the legislature); Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 539 & n. 7, 577 P.2d 477 (declining to apply a regulation retroactively where there was "no indication of any intention that the regulation be retroactive"), cert. den. 439 U.S. 1051, 99 S.Ct. 733, 58 L.Ed.2d 712 (1978).

Although there is no specific provision in OAR 259-08-070(1)(a)(B) indicating that BPST--the promulgating agency--intended the rule to apply retroactively, the procedural history of this case clearly establishes such an intent. BPST promulgated the rule during the progress of this case, then applied the rule to this case. If that application of the rule was "retroactive," as petitioner claims, then BPST unquestionably intended the rule to apply retroactively. BPST's application of OAR 259-08-070(1)(a)(B) to petitioner's case was not impermissible. Cf. Trebesch v. Employment Division, 300 Or. 264, 270, 710 P.2d 136 (1985) (agency may decide policy in the course of deciding contested case and apply newly established policy to the case before it).

In the alternative, petitioner argues that he should be deemed to have been "equitably vested" with a right to have the older, more lenient rule applied to his case. This is so, he argues, because both he and the city of Burns have invested substantial sums in training him to become a law enforcement officer, with the reasonable expectation--based on the law in effect at the time--that he would be certified in due course. Petitioner cites no authority, and we know of none, that supports that proposition.

Although the foregoing discussion disposes of the specifics of petitioner's argument, it does not entirely answer the substance of his position. What petitioner really is claiming here, we believe, is that his circumstances simply do not fit under the rule at all. That is, petitioner is arguing that, in the words of OAR 259-08-070(1)(a)(B), he has not "been convicted of a crime in * * * any other jurisdiction." The answer to that contention lies in the legislature's intent in enacting ORS 181.662(1)(b), the statute from which the wording of the pertinent rule is drawn. ⁸ We turn to that question.

Our inquiry on this point is limited. We seek only the intent of the Oregon legislature. We do not try to determine what the Idaho legislature or courts would consider to be a conviction for a crime, because Idaho is not certifying or declining to certify this officer. Idaho, indeed, has no interest in the outcome of this controversy.

On the question of legislative intent, we have not found anything that sheds light on the legislative choice. ORS 181.662(1)(b) was adopted as a part of Oregon Laws 1987, chapter 901. Nothing in the legislative history of that act informs our inquiry. In the absence of such aid, we turn to other, less direct sources. The only other sources that might be of assistance are those dealing with expunction of criminal convictions.

To the extent that expunction or similar practices involving the alteration of criminal histories are relevant, we agree with BPST that the most reasonable conclusion concerning how the legislature intended to deal with the problem that we confront here is that it would have intended to apply Oregon principles, rather than those of...