Oregon Advisory Opinions May 14, 1980: OAG 80-66 (May 14, 1980)

OAG 80-66.

This opinion request arises out of the candidacy for county sheriff in Hood River County of a person who is not certified, and may or may not be eligible for certification, by the Board on Police Standards and Training as required by ORS 206.015. Hood River County has adopted a home rule charter. Under Or Const art VI, sec 10, the charter of a home rule county

Accordingly, the county charter and ordinances adopted under it govern the qualifications of the sheriff or equivalent officer in a home rule county. The state laws discussed below do not apply, as they do in non-home rule counties, unless a particular home rule county has adopted their provisions in or pursuant to its charter.

However, the Hood River County charter provides:

"A candidate for the position of sheriff shall:

"(a) possess the minimum qualifications required of a sheriff under state law;

"(b) be a minimum of 25 years of age; and

"(c) be bondable." Hood River County Charter, art X, sec 3.

The office of county sheriff is provided for in Or Const art VI, sec 6, to be elected for a four-year term. Since a 1974 amendment, art VI, sec 8 has provided:

"Every county officer shall be an elector of the county, and the . . . county sheriff . . . shall possess such other qualifications as may be prescribed by law. . . ."

Pursuant to this constitutional authorization, the legislature has enacted ORS 206.015 which provides:

"The sheriff shall:

"(1) Be not less than 21 years old;

"(2) Be certified or eligible for certification by the Board on Police Standards and Training; and

"(3) Have at least four years' experience in law enforcement or two years' post-high school education, or any combination of experience and education for at least four years."

ORS 181.620 authorizes the Governor to appoint a Board on Police Standards and Training (BPST). The BPST has been delegated authority to certify police officers, corrections officers, and parole and probation officers, "subject to such terms and conditions as the board may impose." ORS 181.640(1)(d).

ORS 181.640 provides specifically, in relevant part:

"(1) . . . [T]he board shall:

"(a) Establish for police officers, corrections officers and parole and probation officers, respectively, reasonable minimum standards of physical, emotional, intellectual and moral fitness.

"(b) Establish . . . reasonable minimum training for all levels of career development, basic through executive. . . .

"(c) Establish a procedure or procedures to be used by law enforcement units to determine whether a police officer, . . . meets minimum standards or has minimum training.

"(d) Subject to such terms and conditions as the board may impose, certify police officers . . . as being qualified . . . ."

The meaning of the reference to "training" in ORS 181.640(1)(b) is clarified by ORS 181.665(2), providing:

ORS 181.660(2) is also relevant, providing:

"The board may, upon application of an individual police officer . . . at its discretion, certify an officer as provided in paragraph (d) of subsection (1) of ORS 181.640 upon a finding that the officer's professional experience is equal in professional value to the training required for certification."

We first note that BPST certifies not only police officers but also corrections officers and parole and probation officers. In view of the duties of a sheriff specified in ORS 206.010, the definition of "police officer" contained in ORS 181.610(b), and ORS 133.525(3), 237.003(11)(d), 243.005(2), 483.018(3) and 484.010(7), all including a county sheriff within

their definitions of "police officer," we conclude that the BPST certification or eligibility for certification required by ORS 206.015 is certification as a police officer, and not as a corrections officer or parole and probation officer.

ORS 181.640(1)(b) establishes levels of qualification for police officers, "basic through executive," based upon training. ORS 181.640(1)(d), however, does not expressly provide for certification except as a "police officer." Whether or not BPST issues different certificates for a "police officer-basic," etc. to "police officer-executive," an officer meeting only the minimum standards for certification is not eligible to serve in an executive capacity. ORS 206.015(2), however, merely requires a sheriff to be "certified or eligible for certification." We accordingly conclude that if a person is certified as a police officer, or is eligible for such certification, that person is qualified to be sheriff whether or not the training requirements for an executive police position have been met.

The requirements for certification are that the candidate meet "minimum standards of physical, emotional, intellectual and moral fitness," and complete "reasonable minimum training," in both cases as established by BPST. ORS 161.640(1)(a), (b). The "intellectual fitness" standard may presumably include minimum educational requirements, such as a high school diploma or education beyond high school. The "training" requirement is clearly intended to be met by work at a police academy operated by BPST, except that in an individual case professional police experience may be accepted by BPST as "equal in professional value." ORS 181.665(2); 181.660(2).

No question arises if a candidate for sheriff is already certified as a police officer by BPST. Thus the gist of the first question is the meaning of the alternative qualification, "eligible for certification."

No statute specifically provides for a BPST determination that a person is "eligible for certification," but ORS 181.640(1)(c) authorizes it to establish a procedure

The BPST has nevertheless adopted OAR 259-10-055(4), which provides:

"When the determination of 'eligibility for certification' of persons other than police, corrections or parole and probation officers as defined by ORS 181.610 becomes necessary for establishing qualifications to apply for, file for, or hold certain positions or elective office as required by law, procedures described in specification S-13(5) shall apply." (Emphasis added.)

OAR Specification S-13(5)(fn1) requires that certain procedures be followed by non-certified persons, other than police, corrections or parole and probation officers, in

order to be "eligible for certification."

"5. Eligibility Questions

"When determination of 'eligibility for certification' of persons other than police or corrections officers as defined by ORS 181.610 becomes necessary for establishing qualifications to apply for, file for, or hold certain positions or elective office, as required by law, the following procedures shall apply:

"a. The applicant shall submit to the Board a BPST Application form F-7 with all applicable sections completed.

"b. Education and training claimed must be supported by copies of transcripts, diplomas, certificates, or other verifying documents attached to the application. The Board may require certified copies of this material.

"c. BPST Form F-2 must be completed by the applicant and a licensed physician, as prescribed, and submitted to the Board.

"d. Letters from three personal references attesting to the character and qualifications of the applicant shall be submitted with the application.

"e. If the applicant's Oregon State Bureau of Identification number has not been established, an Applicant fingerprint card, completed by an authorized official of a law enforcement agency, must be submitted with the application.

"f. When processing and evaluation of the applicant is completed, the Board will notify the applicant by letter of the results of the evaluation. " (Emphasis added.)

S-13(5) applies to persons filing for county sheriff because it is an elective office. S-13(5)(f) is critical in that by it, BPST assumes authority to determine, by processing and evaluating a person's application, whether that person is "eligible for certification."

BPST is clearly the appropriate body to make this determination. It establishes the minimum qualifications and the required training for certification. It has authority and discretion to determine whether any particular qualification has been met, and to evaluate any professional experience which an applicant submits in lieu of the required training. Certification depends in many ways upon BPST's discretionary evaluation, as of character and emotional stability. Although in case of an abuse of discretion BPST's judgment could be reversed, no one except BPST has authority to certify. Accordingly, no one except BPST can evaluate an applicant's qualifications and find that this applicant is or is not qualified to be certified.

We accordingly conclude that BPST does have authority not only to grant or deny certification, but also to determine whether a candidate for sheriff is qualified for certification. The authority assumed by promulgation of OAR 259-10-055(4) and S-13(5), we conclude, does in fact reside in BPST.

"Eligibility for certification," as set out in ORS 206.025(2), is accordingly a status position that can be conferred on a person only by the BPST in accordance with OAR Regulations and Specifications. The BPST has discretion in deciding whether or not to give an applicant this status.

In short, the answer to the first question is that a person is "eligible for certification" when the person has complied with the OAR Regulations and Specifications of the Policies and Procedures Manual of the BPST, and that the BPST has,

in its properly delegated discretion, determined that a particular person is so qualified, and has notified the person.

A person is not "eligible for certification," however, and BPST does not have discretion to so find, if that person meets all the required requirements except training, and does not already have professional police experience found to be "equal in professional value." ORS 181.660(2). As noted, a person may be employed as a police officer for up to one year before certification, subject to commencement of training during the year as required by ORS 181.665(2). But a sheriff must be certified or eligible for certification; it is not sufficient, under ORS 206.015, for a sheriff to be eligible for the training which is one of the requirements for certification.

An argument can be made that since a person "eligible for certification" in all respects can be certified, there is no reason for the statute to specify this alternative. It must, under this argument, mean something less: such as "eligible for certification in all respects except for completion of the required training course." We reject this argument, since the statute does not say "eligible for certification except." Nor is the statutory provision of an alternative in fact meaningless. ORS 181.667 provides:

"The certification of any police officer who does not serve as a police officer for any period of time in excess of three consecutive months, unless he is on leave from a law enforcement unit, shall be considered lapsed. Upon reemployment as a police officer, the person whose certification has lapsed may apply for certification . . . ."

The second question relates to ORS 206.015(3). BPST has been delegated the power to determine the adequacy of an applicant's education, to the extent it is necessary to determine whether an applicant meets the educational qualifications required for certification. If BPST adopts requirements for certification equal to or more stringent than the requirements of ORS 206.015(3), there will be no necessity to inquire whether the candidate meets those requirements, since certification, or a finding of eligibility for certification, will necessarily import compliance with that subsection. But police officer certification clearly cannot require "four years experience in law enforcement," unless all officers beginning Oregon careers are hired only after previous outstate experience, and it is clearly not necessary for BPST to require two years of education beyond high school. ORS 206.015(3) is thus a requirement in addition to certification, or eligibility for certification.

It is accordingly necessary to ask what is "experience in law enforcement," and what is qualifying "post-high school education."

We have no difficulty in again saying that BPST is an appropriate body to determine whether a candidate for sheriff has the necessary experience in law enforcement. But we again find no specific delegation to it of authority to make that de

termination, and in this case we find no necessity justifying a conclusion that BPST nevertheless has that authority. The statutes defining "police officer" and "peace officer" (ORS 133.525(3), 181.610(3), 237.003(11)(d), 243.005(2), 483.018(3) and 484.010(7), for example) are, in our opinion, sufficient to allow an objective non-discretionary determination of whether particular experience was as a police officer and therefore in "law enforcement." We suppose that experience as a corrections officer, parole or probation officer, or as prosecuting attorney, and perhaps some other experience with direct law enforcement responsibility, would also qualify as "law enforcement" even if not police work. But an objective determination can be made. Although BPST is capable of making that objective determination, as to this statutory phrase it is not "the kind of 'expert agency' that has special knowledge" of its meaning. McPherson v. Employment Division, 285 Or 541, 550, 591 P2d 1381 (1979). Nothing in ORS 206.015(3) grants authority to BPST to make this determination, nor necessarily implies such a grant. We note that it is duration of experience, not quality of experience, which is in issue.

We accordingly conclude that it is the county clerk, as county election officer, who has authority to make the determination, although we recognize that that officer would ordinarily by no means be the best qualified to do so. Four years of law enforcement experience, or its absence, is a fact, one which the clerk will determine to the best of his or her ability on the basis of the information furnished by the applicant or otherwise available, subject to court challenge in case of disagreement.

We see no reason, however, why the clerk could not seek to confirm this information by inquiry to BPST. In fact, since a sheriff candidate's application for certification or for a determination of eligibility for certification will set forth any law enforcement experience (and for that matter, post-high school education), it seems appropriate for BPST to set forth whether or not in its opinion the candidate meets the requirements of ORS 206.015(3). Its determination would not be conclusive, for the reasons stated above, but (with advice from the district attorney or county counsel) would be an excellent basis for the clerk's determination.

The same is true for the alternative requirement of two years of post-high school education, or a combination of such education and law enforcement experience. We note that law-enforcement education is not specified, nor is college education. In our opinion the equivalent of two school years (4 semesters, 6 quarters, 18 months) of any full-time classroom education, with passing grades, or even equivalent correspondence school education, would be sufficient. Apprenticeship and on-the-job training experience would not qualify as educational experience, although it could well qualify as law enforcement experience if regular employment in a similar capacity would so qualify.

The third and fourth questions concern the point in the elective process at which a person must be certified or eligible for certification by the BPST pursuant to ORS 206.015(2), and meet the experience

or education requirements of ORS 206.015(3).

The authority is split on whether qualifications for office must be met at the time of filing, of election, or of taking office. The language used in a statutory provision declaring the qualifications for office is controlling, if either expressly or by necessary implication it specifies the time when the required eligibility for office must exist. 63 Am Jur2d, Public Officers and Employes, sec 41, page 653; see Bradley v. Myers, 255 Or 296, 466 P2d 931 (1970); see also McAlmond v. Myers, 262 Or 521, 500 P2d 457 (1972).

ORS 206.015 states the qualifications necessary for the office of sheriff, and ORS 206.080 prescribes when those qualifications must exist. It provides:

"When a new sheriff is elected or appointed, and has qualified, the county clerk shall give him a certificate of that fact, under his seal of office. Whenever thereafter the new sheriff is authorized by statute to enter upon the duties of the office, he shall serve such certificate upon the former sheriff, from which time his powers cease, except when otherwise specially provided."

This statute indicates that a person can file for, and become elected to, the office of county sheriff before meeting the qualifications prescribed by ORS 206.015(2) and (3), but such person must meet those qualifications before the county clerk has statutory authority to certify the newly elected sheriff.

After the primary and general elections, the county clerk prepares and delivers a certificate of nomination or election to the candidate having the most votes for nomination or election to a county office. ORS 254.545(5). It is at this point after the general election that a person receiving the most votes for election must be certified or eligible for certification under ORS 206.015(2), and be found by the clerk to meet the requirements of ORS 206.015(3). If the candidate is not certified or eligible for certification as required by subsection (2), or cannot show the experience or education required by subsection (3), the county clerk cannot certify the election, and a vacancy arises (subject to the holdover provision of Or Const art XV, sec 1, if the incumbent is not a defeated candidate) upon expiration of the term of the incumbent. But we conclude that the candidate may "qualify" at any time until the day he or she is to take office.

A different answer is required for Hood River County, however, by virtue of the charter provision quoted above. The state statute applies to a sheriff, but in Hood River County "[a] candidate for sheriff shall: (a) possess the minimum qualifications required of a sheriff under state law." [Emphasis added.] Accordingly, the county clerk should reject the filing of a person who does not present, at that time, BPST certification as a police officer or a BPST statement that the person is eligible for certification, and evidence satisfactory to the county clerk of four years' law en

forcement experience or two years' post-high school education, or a combination of law enforcement experience and post-high school education equalling four years.