Haskins v. Employment Department

WOLLHEIM, J.,

dissenting.

Citing Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 , 881 P2d 119 (1994), the majority has chosen to defer to an Employment Department interpretation of OAR, 471-040-0005. However, under the criteria established in that case for interpreting agency rules, I find the department’s interpretation neither plausible nor consistent with the context of the rule, and therefore respectfully dissent.

This court is authorized to overrule an agency’s interpretation of a rule if the agency has “erroneously interpreted a provision of law.” ORS 183.482(8)(a). Pursuant to Don’t Waste Oregon, error is present if an agency’s interpretation is: (1) implausible; (2) inconsistent with the wording of the rule; (3) inconsistent with the context of the rule; or (4) inconsistent with any other source of law. 320 Or at 142 . In this case, the department’s interpretation of OAR 471-040-0005, to which the EAB and the majority defer, reads in pertinent part:

“The Employment Department has determined in OAR 471-40-005 that a document is not a request for hearing unless it bears a signature. The Employment Department is entitled to set reasonable standards to establish what prerequisites need to be met before a document constitutes a request for hearing. It has determined that a signature is such a prerequisite. We infer that one of the purposes of that prerequisite is to ensure the authenticity of the identity of the person appealing so that only those persons/entities who have a right to appeal in fact are afforded such an opportunity. A typed name does not allow for such a determination of authenticity; anyone can type someone else’s *291 name. Thus, the document submitted by claimant’s attorney did not substantially comply with the need to have an authentic signature.”

First, the department’s interpretation of OAR 471-040-0005(1) is not consistent with the context of the rule. Context includes prior judicial construction of the same or similar language. State v. Guzek, 322 Or 245, 255 , 906 P2d 272 (1995). The terms “signed” and “signature” are not defined in the department’s rules or statutes, but in other contexts they have been construed broadly. In ORS 42.005, a signature encompasses “any symbol executed or adopted by a party with present intention to authenticate a writing.” In ORS 71.2020(39), the term “signed” stands for the identical proposition. The courts have held that a printed name sufficed as a signature in Toon v. Wapinitia Irrigation Co., 117 Or 374, 383 , 243 P 554 (1926), and that a photocopied signature was enough to certify an exhibit in State v. Barckley, 54 Or App 351, 355 , 634 P2d 1373 (1981). Now, under the majority’s decision, the definition of a signature is inexplicably limited when tendered to secure a hearing from the department.

Second, the department’s interpretation of its rule is not plausible. Signatures on a hearing request can be that of a “claimant or employing unit, or their counsel, or other authorized agent.” OAR 471-040-0005(1). Yet the purpose of the signature, according to the department, is to “ensure the authenticity of the identity of the person appealing.” The hearing request, therefore, requires an “authentic signature,” yet allows persons to sign who are incapable of rendering claimant’s “authentic signature.” Under the auspices of identity authentication, the department’s interpretation invalidates as a signature the stamp from claimant’s attorney, yet allows a panoply of names and cursive scripts that are not claimant’s and which do nothing to help identify her. The dissonance in logic between the rule and its interpretation is striking, particularly when one grasps that this interpretation shifts the traditional purpose of signature requirements from authenticating writings to authenticating the identity of the writer.

ORS 657.269 and OAR 471-040-0005 are part of a process designed to give individuals affected by Employment *292 Department decisions an opportunity to be heard. On appeal, claimant argued she substantially complied with both statute and rule. The Supreme Court has defined substantial compliance as “compliance in respect to the essential matters necessary to assure every reasonable objective of the statute.” Rogers v. Roberts, 300 Or 687, 691 , 717 P2d 620 (1986). By deciding this case as we have, I fear we “observe the letter of the statute as interpreted strictly, and fail to give heed to the statute’s obvious purpose. Thus, the statute would be turned against those for whose protection it had been writ ten.” In re Demaris’Estate, 166 Or 36, 76 , 110 P2d 571 (1941). We have embraced a flawed reading of an agency rule while denying a citizen her day in court. For that reason, I dissent.

Riggs, J. pro tempore, joins in this dissent.