Boughan v. Board of Engineering Examiners , 46 Or. App. 287 ( 1980 )

THORNTON, J.

Petitioner Boughan petitions for judicial review of an order of respondent Board of Engineering Examiners revoking his certificate as a professional engineer.

The Board brought eight charges involving eight different projects against petitioner, charging incompetence, gross negligence and violation of the rules of professional conduct in his practice as a professional engineer. The Board found petitioner guilty on all charges.

Petitioner contends the Board erred:

1) In denying petitioner’s challenge to John Merrifield’s participation as a member of a six-member hearing panel. The challenge was based on Mr. Merrifield’s having previously been employed on one of the projects from which the instant charges stem.

2) In finding substantial evidence in the record to support the allegations against petitioner; and

3) In revoking petitioner’s certification as a professional engineer.

For reasons which follow we conclude that petitioner’s first contention, namely, that the Board erred in overruling his challenge to Mr. Merrifield’s participation as a member of the hearing panel, must be sustained. Of necessity this requires that this proceeding be returned to the Board for a new hearing, without Mr. Merrifield serving as a member of the hearing panel.¹ We therefore do not reach either of petitioner’s remaining assignments.

As to the facts, it is sufficient here merely to state as follows: One of the engineering jobs petitioner was accused of mishandling was called the Mercier project. Petitioner challenged Mr. Merrifield on the grounds that Merrifield had been hired to serve on the Mercier project after petitioner had been discharged. The evidence indicates that after Merrifield assumed the responsibility for the Mercier project he contacted some of the persons who were involved and made certain changes in work previously approved by petitioner.

At the outset of the hearing, Mr. Merrifield stated that he had been "referred to the case because of my position with this Board.” He assured the Board that the above contacts would not influence his judgment; that he could be objective and judge the case on the basis of what was presented at the hearing. On this basis, the Board then overruled petitioner’s challenge and proceeded with the hearing.

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

The applicable rule concerning the duty of administrative officers to disqualify themselves according to 1 Am Jur 2d, Administrative Law, § 63, pp 859-60 (1961), is as follows:

"Although an administrative agency cannot possibly be under stronger constitutional compulsions in respect to disqualify than a court [Federal Trade Commission v. Cement Inst., 333 US 683, 68 S Ct 793, 92 L Ed 1010 (1948)] the common law rule of disqualification applicable to judges extends to every tribunal exercising judicial or quasi-judicial functions.” (Citing numerous cases.)

But see discussion on this subject in Fritz v. OSP, 30 Or App 1117, 1122, 569 P2d 654 (1977).

’ In most jurisdictions, an administrative officer exercising judicial or quasi-judicial power is disqualified or incompetent to sit in a proceeding in which he has a personal or pecuniary interest. Re Heirich, 10 Ill 2d 357, 140 NE2d 825, 67 ALR2d 827, cert den 355 US 805 (1976); State ex rel Miller v. Aldridge, 212 Ala 660, 103 So 835, 39 ALR 1470 (1925); New Jersey State Board of Optometrists v. Nemitz, 21 NJ Super 18, 90 A2d 740 (1952); Annotation, 97 ALR2d 1210.

Where disqualification is mandated, the administrator must disassociate himself to avoid even the appearance of impropriety. Campbell v. Bd. of Medical Examiners, 16 Or App 381, 395, 518 P2d 1042, rev den (1974) ²

In a number of jurisdictions, including Oregon, it has been held that disqualification for bias or interest will not result where the hearing body, or one of its members or subordinates, acting within the scope of their proper ministerial functions, participated in the investigation and filing of charges against the licensee. Withrow v. Larkin, 421 US 35, 95 S Ct 1456, 43 L Ed 2d 712 (1975); Federal Trade Commission v. Cement Inst., 333 US 683, 68 S Ct 793, 92 L Ed 1010 (1948); Palm Gardens Inc. v. OLCC, 15 Or App 20, 514 P2d 888 (1973), rev den (1974).

In Fritz v. OSP, supra, an inmate of the penitentiary was charged with disobeying a direct order. He challenged a member of the disciplinary committee hearing his case. The grounds asserted were that the challenged person was on the penitentiary’s staff and had interviewed the complaining employe in the course of investigating the charge. We noted that "[t]he evidence indicates that a committee member not only participated in the investigative stage, but also arrived at a degree of prejudgment resulting from that investigation.” 30 Or App at 1121. Departing from the view taken in Am Jur 2d referred to above, we expressed the view that the rules governing disqualification for bias with respect to judges differ somewhat from those pertaining to administrators. A judge who has served as attorney in a particular case is required to recuse himself if that case subsequently comes before him as a judge.³

"In contrast, an administrator is usually selected because of, and his career is dependent upon, his commitment to the policy which he is charged to administer. The traditional justifications for administrative adjudications are those of administrative expertise and the avoidance of the cumbersome machinery of a court trial. Both imply a degree of prior knowledge and consequent prejudgment by administrative agencies, not only on matters of policy but also on questions of fact. In the present case the members of the disciplinary committee clearly have a vested interest in maintaining order and in promoting the institution’s correctional programs. As regular members of the prison staff, they are personally acquainted with the inmates and other staff members and thus are in a position to make tentative prejudgments on questions of credibility and appropriate sanctions or treatment. Presumably they make those prejudgments.” Fritz v. OSP, 30 Or App at 1122-23.

Due process, we held, does not require an absence of the types of biases inherent in the administrative process. 30 Or App at 1123. Nevertheless, we reversed and remanded because there was no indication in the transcript of the hearing that the committee member in question had not relied on prior acquired information in reaching his conclusion of guilt after the disciplinary hearing.

"The clear import of these rules is that only evidence presented at the hearing and heard by the full committee shall be considered in making a decision. Accordingly, members of the committee who have made a prior investigation, or otherwise are aware of evidence relating to the charge, are under a duty to make that fact known at the hearing and to set forth the evidence if that evidence is to be considered by the members who made the investigation. It may have been that the only result from Gassner’s prehearing investigation was a repetition of the statements of the complaining witness introduced at the hearing. Even so, Gassner should have placed into the record the fact of the investigation.” (Footnote omitted.) 30 Or App at 1125-26.

As we observed in Fritz, due process standards respecting bias in a penitentiary situation, because of its "closed-system” character, differ from those applicable in ordinary administrative proceedings. While an absolute separation of judicial and investigatory functions is not required, an administrator’s prior personal contacts with the parties or the particular factual context before the agency in a hearing may mandate disqualification. This is particularly true where such contacts occur when the person was acting in a capacity other than his capacity as an employe of the agency. Transworld Airlines v. Civil Aeronautics Bd., 254 F2d 90 (DC Cir 1958) (a member of the Civil Aeronautics Board was held to be disqualified because he had been an attorney for one of the parties in the early stages of the case).

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

Reversed and remanded with instructions.

1 This would not, of course, bar Mr. Merrifield from being called as a witness by either side.

2 In Campbell v. Bd. of Medical Exam., 16 Or App 381, 395, 518 P2d 1042, rev den (1974), which involved a proceeding to revoke a license to practice medicine, it appeared that at the beginning of the hearing the hearing officer announced that the chairman of the Board of Medical Examiners had disqualified himself from all participation in the case but that the Board’s findings of fact, conclusions of law and order of denial was signed by the chairman notwithstanding. We reversed holding that the chairman should not have participated in any manner after disqualifying himself, saying:

'Where, as here, an administrative body is charged with the duty to render a quasi-judicial decision, it should do so with the outward indicia of fairness as well as the actuality thereof. * * *”

3 Canon 3(c)(1)(a) and (b) of the Code of Judicial Conduct provides:

"C. Disqualification

"(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

"(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

"(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a judge or such lawyer has been a material witness concerning it.”