*1 Argued 27, February and submitted reversed and remanded May 27, 7, instructions August reconsideration denied petition (289 588) 3, September review denied Or

BOUGHAN, Petitioner, v. BOARD OF ENGINEERING EXAMINERS,

Respondent. (CA 15358) 611 P2d 670 Portland, the cause Carlson, argued M. Gary petitioner. the brief for filed *2 Salem, General, Won, Attorney Assistant Benny W. on the brief him for With respondent. the cause argued General, and Walter Redden, Attorney James A. General, Barrie, Salem. Solicitor L. Thornton Schwab, Judge, and Chief

Before Judges. Campbell,

THORNTON, J. J., opinion.

Schwab, dissenting C.

THORNTON, J. review judicial Boughan petitions

Petitioner Examin- Engineering Board of order of respondent an engineer. as a professional his certificate revoking ers involving eight brought eight charges The Board incom- charging against petitioner, different projects of the rules of and violation gross negligence petence, a professional in his practice conduct professional all guilty found on engineer. The Board charges. erred: contends the Board

1) Mer- to John denying petitioner’s challenge In as a of a six-member rifield’s member participation on Mr. Mer- challenge was based hearing panel. on one of the having employed rifield’s been previously stem. charges from which instant projects 2) substantial evidence in the record finding support allegations against petitioner; *3 3) a revoking petitioner’s profes- certification as sional engineer. peti- reasons which follow we conclude that

For contention, the Board erred namely, tioner’s first challenge partici- to Mr. Merrifield’s overruling must be hearing panel, as a member pation that this necessity proceed- sustained. Of this requires with- hearing, returned to the Board for a new ing be hearing serving out Mr. Merrifield as member of petitioner’s therefore do not reach either of panel.1 We remaining assignments. facts, state merely it is sufficient here to

As to the engineering jobs petitioner as follows: One of the the Mercier mishandling project. was called accused of grounds Mr. Merrifield on the challenged on the Mercier that Merrifield had been hired to serve 1 course, not, being as a bar Mr. Merrifield from called This would witness either side. had project discharged. been The evi- dence indicates that after Merrifield assumed re- for the Mercier he contacted some sponsibility who persons were involved and made certain changes previously work approved by petitioner. the hearing, At outset of Mr. Merrifield stated "referred my he been to the case because of with this Board.” He assured the Board that position judgment; the above contacts would influence his on the objective judge that he could be case presented hearing. basis of what was at the On this basis, the Board then overruled petitioner’s challenge with the proceeded hearing.

Petitioner has the burden of actual showing preju Division, dice or Grabenhorst v. Real Estate 43 Or bias. (1980); 287, 292, (1979), P2d 602 1089 rev den App Commission, 19, P2d v. 38 Or 588 Gregg Racing App (1979). 1290, rev den rule of adminis- concerning duty

The applicable 1 according themselves to disqualify trative officers to Law, 63, 2d, § Administrative 859-60 pp Am Jur (1961), is as follows: agency

"Although poss an administrative cannot stronger compulsions constitutional ibly be under [Federal than a court Trade respect disqualify Inst., 683, 68 793, v. Cement 333 US S Ct Commission (1948)] Ed the common law rule of disqual 92 L judges every extends to tribun applicable ification exercising judicial quasi-judicial or functions.” al cases.) (Citing numerous OSP, on this in Fritz v. subject But see discussion (1977). 1122, 1117, 569 P2d 654 ’ an administrative officer ex jurisdictions, In most ercising judicial quasi-judicial power disqualified *4 he has a proceeding to sit in a which incompetent or Heirich, 2d interest. Re 10 Ill or personal pecuniary 825, 827, US 357, 67 ALR2d cert den 355 140 NE2d 660, 212 Ala (1976); Aldridge, ex rel Miller v. 805 State 835, (1925); Jersey ALR State So 39 1470 New 103

[290] Super 18, Optometrists 90 Nemitz, 21 NJ v. Board of (1952); Annotation, 1210. 97 ALR2d A2d 740 disqualification mandated, the adminis is Where even himself to avoid disassociate trator must Campbell impropriety. appearance Medical v.Bd. of of App 395, 1042, rev den 381, P2d Examiners, 16 518 Or 2 (1974) Oregon, including jurisdictions, it In of a number disqualification bias interest has been held that hearing body, or one of its not result where the will scope acting of subordinates, within the members or participated proper functions, in the their investigation ministerial against filing charges the licen of 1456, 35, 43 L Larkin, S Ct v. 421 US 95 see. Withrow (1975); Ce v. Federal Trade Ed 2d 712 Commission 793, L Ed 1010 20, 514 Inst., 683, S 92 ment 333 US 68 Ct (1948); App OLCC, v. 15 Palm Gardens Inc. Or (1974). (1973), P2d 888 rev den peniten- supra, OSP,

In v. Fritz an inmate disobeying tiary charged He with a direct order. was challenged disciplinary a member of the committee hearing grounds that the asserted were case. challenged person penitentiary’s staff on employe complaining in the had interviewed charge. investigating course of We noted "[t]he indicates that a committee member evidence stage, only investigative participated also in the but resulting prejudgment degree from that arrived at Departing investigation.” App from the 30 Or at 1121. 381, 395, Exam., Campbell 518 P2d v. Bd. Medical 1042, (1974), proceeding to a license to rev which involved a revoke den medicine, hearing practice beginning appeared it that at hearing Board of Medical announced that the chairman of the officer participation disqualified the case but himself from all Examiners had fact, findings of denial was that the Board’s conclusions of law order holding notwithstanding. signed the chairman We reversed disqualifying participated any chairman himself, saying: not have manner after should here, duty 'Where, body charged an administrative decision, quasi-judicial it do with the outward

to render a should so * * *” actuality indicia of fairness as well as the thereof. *5 view taken in Am Jur 2d above, referred to we ex- pressed the view that the rules governing disqualifica- tion for bias with respect judges to differ somewhat from those pertaining to A judge administrators. who has served as attorney in a particular case is required to recuse if himself that case comes subsequently him before as a judge.3 contrast,

"In an administrator is usually selected of, because and his career dependent upon, his commitment policy to which he is charged to administer. The justifications traditional for ad- adjudications ministrative are those of administra- expertise tive avoidance of the cumbersome machinery of court a trial. imply degree Both a of prior knowledge and consequent prejudgment by ad- ministrative agencies, not only on matters of policy but also on questions of fact. the present case members of disciplinary clearly committee a have vested interest in maintaining order and in promot- ing the institution’s programs. regu- correctional As lar staff, members the prison of they are personally acquainted with the inmates and other staff members and thus are a position in prejudg- make tentative questions ments on of credibility and appropriate sanctions or treatment. Presumably they make those prejudgments.” OSP, Fritz v. App at 1122-23. held, Due process, we does require an absence of of types biases inherent in the administrative process. 30 Or at Nevertheless, 1123. we reversed and remanded because there was no in indication transcript of the hearing that the committee member 3(c)(1)(a) (b) Canon of the Code provides: of Judicial Conduct Disqualification

"C. "(1) judge disqualify A proceeding should himself in a which in impartiality might reasonably questioned, including be but not limited to instances where: "(a) personal prejudice he has a concerning party, bias or a personal knowledge disputed evidentiary concerning pro- facts ceeding; "(b) lawyer he controversy, lawyer served aas in the in matter aor previously practiced during whom he law served such association judge lawyer as a or such concerning has been a witness material it.” informa- acquired on prior not relied question disci- after the reaching guilt his conclusion tion hearing. plinary only evi- rules is that import

"The clear of these by heard the full hearing presented dence at a decision. making shall be considered committee have who of the committee Accordingly, members investigation, are aware or otherwise prior made a duty charge, are under relating to the evidence hearing and to set forth known at the make that fact *6 if is to be considered that evidence the evidence may investigation. It the who made the members only pre- from Gassner’s have the result been the state- hearing investigation repetition was a at the complaining the witness introduced ments of so, into hearing. placed Gassner should have Even (Footnote investigation.” the record the fact of the omitted.) at 1125-26. Fritz, in As due standards process we observed situation, bias in a because respecting penitentiary character, from those "closed-system” appli its differ ordinary in While proceedings. cable administrative judicial investigatory separation an absolute per is an prior functions administrator’s required, the particular sonal contacts with or the factu parties agency hearing may al before the in a mandate context This true where such disqualification. particularly capac in a person acting contacts occur when the agen than his an ity capacity employe other as Bd., Airlines v. Civil Aeronautics cy. Transworld 1958) (a (DC F2d 90 Aeronaut Cir member Civil he had ics Board was held be because disqualified early attorney been an for one of the the parties case). stages of the case, Mr. Merrifield’s present involvement about,

with the came as we understand project Mercier Merrifield was it, instigation parties. at the of third hired replace petitioner, apparently approached He of his on the Board. suc largely because position engineer, petitioner project participated ceeded taking and recommended investigating of corrective action. We although assume, the record does not reflect, compensated he was for his services. Under the circumstances, we believe he disqualified should have himself.

Reversed and remanded with instructions. SCHWAB, dissenting. J.,C. I do not believe that submitted sufficient fácts on support the record to majority’s conclusion that the Board denying petitioner’s erred motion for disqualification of Mr. Merrifield. Petitioner was retained engineering to do work on project.” "Mercier "Mercier” is the name of a family that single-family owns a "pro- residence. Their ject” was the retaining construction of a wall in their yard. prepared plans retaining for a wall and submitted city them to the for issuance of a building permit. permit was issued in reliance on plans. the wall, Later, began before work retaining on the city officials did inspection. an on-site This lead

them to the plans conclusion that the inadequate, they building canceled the permit. Merrifield, the member of partici- Board whose pation challenged, is here had some contact with *7 building Merciers ever, permit after the was canceled. How- contrary majority, to the I find almost no infor- mation in the record about the nature of that contact — and what information there is makes that contact inconsequential seem to me.

Merrifield had no contact with the Merciers until they after petitioner. had dismissed Merrifield so stated.1 The Board so found.2 Petitioner does not chal- lenge Merrifield’s statement or the finding; Board’s 1"[Question:] Merrifield, Mr. you did anything have to do with Mr. Boughan being relieved as the consulting engineer for the Merciers?

"MR. MERRIFIELD: None whatsoever.” 2The Board found: "Neither Merrifield [his] nor firm were involved Boughan’s [i.e., client the Merciers] until the client dismissed Boughan.” participa- Merrifield’s challenged When Mer- of understanding asked to state tion, was he respond- Petitioner project. in Mercier role the rifield’s ed: weeks that several make is I want to point "The John Mer- me that informed Christerson

ago, Paul a due to the Board from be eliminated would rifield chang- hasn’t the condition Well of interest. conflict is this and elephant, an memory like a I have ed. note I amade and phone conversation I heard in what I background. the why, because I know it and aHe’s against John. court, usually in appeared have subjecting being human he is a but engineer, fine want to be I wouldn’t much stress. to too himself in one of involved To be stress. much to that subjected hand. It the other it on judging to be and the projects individual.” human test of the a true is not Merrifield or that '"show how to was invited Petitioner from gain’” [sic] puninary a derived way in some has responded: project.3 Mercier Actually, this game. early in the "Yes, in it he was had I ever time is the first It was revoked. permit City Hall people at was some There revoked. permit eventually people, some hired out and went who Merrifield firm and his referrals gave some they . Honestly, thing. redesigning up Bonney, ended designed City Hall people that that think to find trying the britches seat of by the it involv- pretty well he way. I think that someone role is.” what his knows City Hall Also it. ed in information relevant all possibly This is ruled: officer presiding when the Board was before at this challenge accept going Board "The ” supplied.) time. (Emphasis subsequently upon relies apparently majority many respects: testimony offered as- Merrifield indicates "The evidence he Mercier for the responsibility sumed context, transcript. typographical errors numerous There are really meant gain” have "puninary question about *8 the I understand gain.” "pecuniary ^[295] contacted some of persons the who were involved and made certain changes in work previously approved by petitioner.” 46 Or App at 290. "[Merrifield] succeeded project en-

gineer, participated in investigating recommended the taking of corrective action.” 46 Or App at 293-94.

Either I misunderstand I majority, or that submit most of these statements are not supported by the record.4 But even assuming the accuracy factual majority’s observations, I submit it is unfair to the Board of Engineering Examiners and to Merrifield for the majority to rely on information developed in the record the Board had rejected the objection to Merrifield’s participation "at this time” any without showing that petitioner later objection. renewed his

Furthermore, and still assuming the majority accu- — rately reports facts, I fail to see and the majority — certainly does not precisely identify the legal neces- for sity Merrifield’s disqualification in the context of charges against petitioner. The essence of the charges involving the Mercier project peti- plans tioner’s defective, not his execution of the See, project. 4, n supra. found, Board for example, that petitioner’s

"plan eighteen shows an foot elevation difference from the top proposed H-pile top wall to the 4 Ifind no basis in the record assertion that Mr. made Merrifield "changes previously approved by petitioner” work "recommended taking of action.” correction The Board found: [Mer "Construction retaining] [according petitioner’s ciers’ ed” plans] wall was never commenc (Emphasis supplied.) So previously approved “work peti what * * * tioner” or "recommended majority corrective action” does the have in mind? implication There is some prepared the record that Mr. Merrifield plans retaining new and different for a However, wall for the Merciers. given conclusion, city’s both the building it permit when revoked the issued petitioner’s plans, in reliance on implicit and the Board’s conclusion retaining designed by petitioner wall performed would not have its function, hardly intended it is completely fair characterize new and plans changes” petitioner’s different as "certain work or recommended "corrective action.” *9 this measurement Actual Creek. Tyron the bank feet.” to 38 difference biased, how could factfinders if one Even that something on a decision influence possibly that measured? objectively be can side is on disqualification to show burden The that thing only fair disqualification. asserts that showed is that record this about said be can peti- discharged they Merciers, capacity. unknown some Merrifield tioner, retained Merrifield’s require insufficient hold I would dissent. respectfully therefore disqualification,