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					          BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
                        STATE OF OREGON
                              for the
       DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING


IN THE MATTER OF THE PROPOSED                      ) PROPOSED ORDER
REVOCATION OF THE BASIC                            )
CORRECTIONS CERTIFICATION OF                       ) Office of Administrative Hearings
                                                   ) Case No. 113571
JACK LEE TORREY                                    ) DPSST No. 36020



                                   HISTORY OF THE CASE

        On November 19, 2003, the Department of Public Safety Standards and Training
(Department) issued to Jack Lee Torrey (Respondent) a Contested Case Notice of Intent to
Revoke, Opportunity to be Heard, and Final Order Revoking Certification if no Request for
Hearing is Received (Notice). The Notice was issued on grounds that Respondent had been
convicted of crimes which authorized the Department to revoke his corrections
certification. Respondent requested a hearing challenging the Notice.

       The Department referred the request for hearing to the Office of Administrative
Hearings (OAH) on February 6, 2004. A hearing was held on March 25, 2004, in Salem,
Oregon. Administrative Law Judge (ALJ) Paul Hegstrom, of the Office of
Administrative Hearings, presided. Respondent appeared in person with his attorney,
Margaret Olney. Respondent testified on his own behalf. The Department was
represented by Assistant Attorney General Timothy Thompson. Testifying on behalf of
the Department was Theresa King, Revocation/Denial Coordinator. Also testifying was
Mary Gaines, Supervisor of the Department's Certification and Records Section. The
record was closed on March 25, 2004.

        This matter was subject to a prior Notice of Intent to Revoke, issued on
November 17, 2000. The matter came to hearing on February 12, 2001 and a Proposed
Order was issued on March 5, 2001, authorizing the revocation of Respondent's
certification. The Department issued a Final Order on January 11, 2002, revoking
Respondent's certification. Respondent appealed the matter to the Court of Appeals. On
April 12, 2003, the court allowed the Department to withdraw the Final Order and begin
the process anew.

                                         ISSUES

        1. Whether Respondent was convicted of harassment. (ORS 166.065)

        2. Whether Respondent was convicted of criminal mischief II. (ORS 164. 354)



In the Matter of Jack Lee Torrey
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       3. Whether ORS 670.280 is applicable and authority for the proposition that
revocation of a professional license cannot be based solely on conviction of a crime.

        4. Whether the convictions authorize the Department to revoke Respondent’s
certification as a public safety officer.1 ORS 181.662(4) and OAR 259-008-
0070(3)(a)(B).

                                   EVIDENTIARY RULINGS

       Exhibits A1 through A9 and A21 through A24 offered by the Department were
admitted into the record without objection. Respondents exhibits R1 and R2 were also
admitted without objection.

                                    FINDINGS OF FACT

      1. Petitioner was hired by the Oregon Department of Corrections (DOC) on
August 17, 1998. (Ex. A1.)

       2. On June 24, 1999, Petitioner received his basic correction certificate from
Department. Petitioner was posted to the Snake River Correctional Institution (SRCI) in
Ontario, Oregon, where he worked as a corrections officer. (Ex. A1.)

        3. As part of his certification, Respondent was required to abide by the Criminal
Justice Code of Ethics. The code requires, among other things, that Respondent would
safeguard lives and property; protect the peaceful against violence; respect the rights of
others; keep his private live unsullied; remain calm; demonstrate self-restraint; be
exemplary in obeying the laws of the land; and not allow his personal opinions to
influence decisions. (Ex. A25.)

        4. On October 5, 1999, Respondent was involved in a confrontation where he
became angry and broke a driver's side rear view mirror off another person's vehicle.
Respondent then drove to the person's residence where he was asked to leave, several
times. Respondent pushed the property owner two separate times and refused to leave
until the owner went to call police. Respondent was charged with criminal mischief II.
(Exs. A3, A6, A21, A22.)

       5. On November 19, 1999, Respondent threatened to inflict serious physical injury
to an employee of Valley Family Health Clinic over a $10 bill. In a telephonic
conversation, Respondent said he would come down to the clinic and shoot the doctor and


1
  ORS 181.610 states in relevant part: "(16) 'Public safety personnel' and 'public safety officer'
include corrections officers, youth correction officers, emergency medical dispatchers, parole and
probation officers, police officers, certified reserve officers, telecommunicators and fire service
professionals."




In the Matter of Jack Lee Torrey
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the clinic employees with a shotgun. Respondent was charged with harassment. (Exs.
A3, A6, A21, A22.)

       6. On May 22, 2000, Respondent was found guilty of one count of harassment
(ORS 166.065), (Class A Misdemeanor), in Malheur County Circuit Court. Respondent
was sentenced to five days jail time. (Ex. A4.)

       7. On July 31, 2000, Respondent was found guilty of one count of criminal
mischief II (ORS 164.354), (Class A Misdemeanor), in Malheur County Circuit Court.
(Ex. A5.)

      8. Criminal mischief II and harassment are both listed on the matrix used by
Department as discretionary disqualifiers for a period of 5 years. (Ex. A21.)

        9. On July 17, 2003, the Board on Public Safety Standards and Training convened.
After reviewing the circumstances behind Respondent's convictions, and after confirming
that revocation was appropriate under the matrix, the Department issued a Notice of Intent
to Revoke. The Department considered the fact that Respondent's two convictions, one
being a person crime, arose from two separate events, with two separate victims, to be an
aggravating factor that supported revocation of certification. (Ex. A7.)

                                   CONCLUSIONS OF LAW

       (1) Respondent has been convicted of harassment, a violation of ORS 166.065, a
Class A Misdemeanor.

      (2) Respondent has been convicted of criminal mischief II, a violation of ORS
164.354, a Class A Misdemeanor.

       (3) ORS 670.280 is not applicable and is not relevant to the proposition that the
revocation of a professional license cannot be based solely on conviction of a crime.

        (4) The Department is authorized to revoke Respondent’s corrections officer
certification in accordance with ORS 181.662(1)(b)(4) and OAR 259-008-0070(3)(a)(B),
based the convictions.

                                        OPINION

       The Department has the burden of proving the allegations and that Respondent's
certification should be revoked, by a preponderance of the evidence. See ORS
183.450(2) and (5); Harris v. SAIF, 292 Or 683, 690 (1982) (general rule regarding
allocation of burden of proof is that the burden is on the proponent of the fact or
position); Cook v. Employment Div., 47 Or App 437 (1980) (in absence of legislation
adopting a different standard, the standard in administrative hearings is preponderance of
the evidence). Proof by a preponderance of evidence means that the fact finder is
persuaded that the facts asserted are more likely true than false. Riley Hill General



In the Matter of Jack Lee Torrey
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Contractors v. Tandy Corp., 303 Or 390 (1989). I find that the Department has met its
burden.

1. Conviction for harassment.

        The preponderance of the evidence in the record establishes that on or about May
22, 2000, Respondent was convicted of harassment. There is no evidence in the record
that the conviction has been vacated by a court or expunged from his criminal record.

2. Conviction for criminal mischief II.

        The preponderance of the evidence in the record establishes that on or about July
31, 2000, Respondent was convicted of criminal mischief II. There is no evidence in the
record that the conviction has been vacated by a court or expunged from his criminal
record.

3. Authority to revoke based on a conviction

      Respondent argues the Department is prohibited by ORS 670.280 to revoke
Respondent's certification based solely on his convictions. The statute provides that:

                 [N]o licensing board or agency shall deny, suspend or revoke an
                 occupational or professional license or certification solely for
                 the reason that the applicant or licensee has been convicted of a
                 crime.

                 *****

        Counsel’s reliance on this statute is misplaced. ORS 670.280 is not applicable to
Respondent's corrections certificate. ORS 670.280 is part of Title 52, which was
originally enacted in 1971. According to ORS 670.275, by enacting Title 52, it was
the intention of the Legislative Assembly to provide for the more effective coordination
of the administrative functions of boards charged with responsibility for protecting the
public through the licensing and regulating of certain professions practiced in this state.

        The Department, and specifically, public safety officers, are not affected by Title
52. Because there is a specific, controlling statute, ORS 181.662, analogous statutes are
not determinative. See, e.g., ORS 174.020 (a specific statutory provision generally
governs over a more general provision).




In the Matter of Jack Lee Torrey
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        ORS 181.640 grants the Department authority to set minimum qualification
standards for all public safety professionals, including corrections officers. ORS 181.662
specifically authorizes the Department to revoke a public safety officer’s certificate under
certain circumstances. The Department is further authorized to revoke a public safety
professional’s certificate by Administrative Rule. See OAR 259-008-0070(1)(a)(B),
which mirrors ORS 181.640(1)(b).

        Given the specificity of ORS 181.650, the applicable statute, it is clear that the
Legislature granted the Department the authority to issue, deny and revoke certification
of public safety officers. Even if ORS 670.280 applied here, the Department 's action is
also based on the underlying conduct and circumstances.

4. Revocation of Respondent's corrections officer certification

        ORS 181.662(4), provides in relevant part that:

                 The department, in consultation with the board, shall adopt rules
                 specifying those crimes for which a conviction requires the
                 denial or revocation of the certification of a public safety officer
                 or instructor.

                 *****

        ORS 181.662 (1)(b) provides, in relevant part:

                 The Department of Public Safety Standards and Training may
                 deny or revoke the certification of any instructor or public
                 safety officer, except a youth correction officer or fire service
                 professional, after written notice and hearing consistent with the
                 provisions of ORS 181.661, based upon a finding that: ***
                 (b) The public safety officer or instructor has been convicted of
                 a crime in this state or any other jurisdiction.

                 *****

       Pursuant to ORS 181.662, the Department has adopted OAR 259-008-
0070(3)(a)(B). The rule provides, in relevant part:

                 Grounds for Denying or Revoking Certification of an Officer,
                 Telecommunicator, Emergency Medical Dispatcher or
                 Instructor:
                 (a) The Department may deny or revoke the certification of any
                 officer, telecommunicator, emergency medical dispatcher or
                 instructor, after written notice, and a hearing, if requested, based
                 upon a finding that: ***
                  (B) The officer, telecommunicator, emergency medical
                 dispatcher or instructor has been convicted of a crime, other


In the Matter of Jack Lee Torrey
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                 than a mandatory denial or revocation as listed above, in this
                 state or any other jurisdiction.

                 *****

       The Department has designed a decision matrix, authorized by OAR 259-008-
0070(3)2, in exercising their discretion. The Matrix is not fully inclusive or exclusive and
provides a structure for decision making. Under the matrix, convictions for harassment
and criminal mischief II are discretionary disqualifiers, each for a period of 5 years.

        At the hearing, Respondent presented mitigating evidence. Respondent enjoys his
occupation and has received numerous letters of support from fellow workers. He has
had good employment evaluations and has had no problems with jail staff. He also has
not been convicted of any other charges and has met all sentencing requirements.
Finally, his employer has been very supportive of his continued employment and it has
been four years since the convictions. For these reasons, among others, he believes the
revocation action to be overly severe and unjustified.

        When an agency's interpretation of its own rule is plausible and not inconsistent
with the wording of the rule itself, the rule's context or any other source of law, the
agency is entitled to some deference. Don't Waste Oregon Comm. v. Energy Facility
Siting, 320 Or 132 (1994). The Department has taken a steadfast position to promote
integrity in the area of law enforcement. Under the statutes and rules, the Department
has the discretionary authority to either revoke or do nothing. There is no middle ground
under these circumstances. The Department has not abused its discretion and has
established valid grounds for the revocation action based on Respondent's conduct and
the convictions. The revocation action is authorized.




2
  (3) Grounds for Denying or Revoking Certification of an Officer, Telecommunicator,
Emergency Medical Dispatcher or Instructor:
(a) The Department may deny or revoke the certification of any officer, telecommunicator,
emergency medical dispatcher or instructor, after written notice, and a hearing, if requested,
based upon a finding that:
(A) The officer, telecommunicator, emergency medical dispatcher or instructor falsified any
information submitted on the application for certification or on any documents submitted to the
Board or Department;
(B) The officer, telecommunicator, emergency medical dispatcher or instructor has been
convicted of a crime, other than a mandatory denial or revocation as listed above, in this state or
any other jurisdiction.
(i) In making a decision on a discretionary denial or revocation the policy committees may use
the criminal disqualifier and decision matrix approved by the Board.




In the Matter of Jack Lee Torrey
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                                   PROPOSED ORDER

           I propose that the Department issue the following order:

           The Department hereby revokes Respondent’s certification as a corrections
officer.



                                                     Paul Hegstrom, Administrative Law Judge
                                                         Office of Administrative Hearings


ISSUANCE AND MAILING DATE:


                                         EXCEPTIONS

         The proposed order is the hearing officer's recommendation to the Oregon Depart-
ment of Public Safety Standards and Training (Department). If you disagree with any part
of this recommendation, you may make written objections, called "exceptions," to the
recommendation and present written argument in support of your exceptions. Exceptions
and argument must be filed with the Department of Public Safety Standards and Training
not later than fourteen (14) days following the date of mailing of the proposed order at the
following address:

                                    Director
                                    DPSST
                                    550 N. Monmouth Avenue
                                    Monmouth, Oregon 97361

                                         FINAL ORDER

       After considering all the evidence, the proposed order, and the timely filed
exceptions, if any, the Department will issue the final order in this case. The final order
may adopt the proposed order prepared by the hearing officer as the final order or modify
the proposed order and issue the modified order as the final order (see OAR 173-003-
0665).

                                            APPEAL

      If you wish to appeal the final order, you must file a petition for review with the
Oregon Court of Appeals within sixty (60) days after the final order is served upon you.
See ORS 183.480 et seq.




In the Matter of Jack Lee Torrey
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                              CERTIFICATE OF SERVICE


I certify that on May 7, 2004, I served the attached Proposed Order by mailing first class
mail, in a sealed envelope, with first class postage prepaid, a copy thereof addressed as
follows:


JACK L TORREY
3677 COUNTRY LANE
VALE OR 97919



MARGARET S OLNEY
ATTORNEY AT LAW
1500 NE IRVING ST STE 370
PORTLAND OR 97232



TIMOTHY THOMPSON
CRIMINAL JUSTICE DIVISION
610 HAWTHORNE AVE SE STE 210
SALEM OR 97301



JEREMY RICE
CRIMINAL JUSTICE DIVISION
610 HAWTHORNE AVE SE STE 210
SALEM OR 97301



THERESA KING
STANDARDS AND CERTIFICATION
DPSST
550 N MONMOUTH AVE
MONMOUTH OR 97361


                                             ____________________________________
                                             Lucy Garcia, Administrative Specialist
                                             Office of Administrative Hearings
                                             Transportation Hearings Division



In the Matter of Jack Lee Torrey
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