an agency’s order “must articulate a tenable basis for the legal conclusions by which it applies a statute to the facts”
How later courts described this case
- an agency’s order “must articulate a tenable basis for the legal conclusions by which it applies a statute to the facts”
- where agency was authorized to make policy collectively, but made decisions in small panels, agency had responsibility to adopt procedure to insure consistent interpretation
Written by the judges who cited it.
The opinion
CAMPBELL, J.
dissenting.
I dissent. The Fair Dismissal Appeals Board (FDAB) determined that “immorality” includes public sexual intercourse. What the majority finds objectionable is not that determination or its application to the facts, but rather FDAB taking notice of the public standards of morality. However, petitioner never objected either in his brief to this court or the Court of Appeals to FDAB taking notice that public sex violates the moral standards of the people of Oregon, but instead argued other points. He denied that his conduct wa™ “public,” disputed that there was a nexus between his conduct and his fitness to teach, raised constitutional issues and argued that a statewide standard should be used to interpret the term “immorality.” The majority is apparently deferring discussion of these issues until Ross III.
When this court submitted questions to the parties regarding the procedures applicable to “official notice of public opinion,” it was raising a point not previously involved in the litigation. The FDAB was correct in responding:
“* * * Petitioner has never claimed as error that the FDAB violated 183.450(4) [relating to official notice]. With all due respect to this Court, Respondent is fascinated and somewhat disturbed by this Court’s apparent willingness to consider a statute and a point that has not been raised, discussed or briefed by Petitioner in any of the many briefs or memoranda previously submitted to judicial or administrative bodies in this case. Respondent need not cite authority for the proposition [that] the Courts are to determine only the issues raised and represented by the Appellant. If the Court does determine an issue not raised by Petitioner, Respondent asks the Court to advise the parties and the Bar in its opinion why it feels compelled to depart from this well-established judicial tradition.”
The majority’s goal, which is laudable, is that “school boards, teachers and FDAB must know what the statute means when the outcome does not seem obvious to everyone.” 300 Or at 513. That objective, however, is not satisfied by the procedures the majority specifies. According to the majority, the FDAB must interpret “immorality” without considering *521 prevailing moral standards. Rather, the majority implies that the individual members are to define “immorality” based on their own personal views. There is no reason to believe that the legislature intended that the employment future and reputation of teachers be based on such a precarious and potentially arbitrary footing. The personal views of the members may be unknown in advance, because “immorality” may be interpreted by means of an order rather than through rule-making. Their views may be excessively stringent in comparison with the general society, or idiosyncratic. It is possible to imagine that the three individuals who comprise the panel in a particular hearing would believe, using the majority’s example, that women teachers who smoke tobacco in public are immoral.
Focusing on an issue that was never raised by any party in this litigation will further delay a final resolution of litigation that has already comprised a full seven years from the precipitating incident and involved a previous remand for reconsideration from this court. The task assigned to FDAB by this second remand, coupled with uncertainties in the standards established by the majority, may well lead to still further petitions to this court and further remands.
The legal system should be extremely embarrassed with the length of time this case has been in litigation. It is an even-money bet that we will see Ross III. Who is to say that there will not be a Ross IV and a Ross V. It is doubtful that we will pass the Super Bowl designation. It stands at XX and adds one number each year — a faster pace.
The Court of Appeals decided this case based on issues raised by the parties. I would affirm the result of the Court of Appeals.
Peterson, C. J., and Jones, J., join in this dissent.