Mutnomah County Sheriff's Office v. Rod Edwads

ORS 408.230(2)(c) requires a public employer to

“devise and apply methods” of giving veterans and disabled

veterans “special consideration” in the employer’s hiring

process when that hiring process does not rank applicants

by means of a score. The issue in this case is whether the

Multnomah County Sheriff’s Office (county) complied with

that requirement when it failed to promote a disabled veteran.

The Bureau of Labor and Industries (BOLI) concluded

that the county did fail to comply with the statute, as well

as administrative rules that implement it. BOLI ordered the

county to comply with the law, to train its staff, and to pay

the disabled veteran $50,000 in damages for his emotional

distress.

The county appealed, challenging BOLI’s conclusion

that the county had violated ORS 408.230(2)(c). It also challenged

the validity of the administrative rules that BOLI

concluded the county had violated and BOLI’s authority to

award damages for emotional distress. The Court of Appeals

affirmed. Multnomah County Sheriff’s Office v. Edwards, 277

Or App 540, 373 P3d 1099 (2016). We conclude that BOLI

correctly construed ORS 408.230(2)(c) and that, given the

unchallenged findings in the agency’s final order, there is no

basis for the county’s contention that BOLI erred in finding

a violation of that statute. Our conclusion with respect to the

statutory violation obviates the need to consider the validity

of BOLI’s administrative rules, so we do not reach that

issue. As for BOLI’s authority to award damages for emotional

distress, the county failed to preserve that argument,

so we similarly decline to address it. We therefore affirm the

decision of the Court of Appeals and the final order of BOLI.

A brief summary of the relevant statutes and administrative

rules provides useful context. ORS 408.230(1)

requires public employers to grant a preference to veterans

and disabled veterans who apply for a vacant civil service

position or seek a promotion to a civil service position.

The veteran or disabled veteran applicant must meet the

minimum qualifications and any special qualifications for

the position. ORS 408.230(1)(b). In addition, the applicant

764 Multnomah County Sheriff’s Office v. Edwards

must successfully complete either an initial application screening

process or a civil service test that the public employer

administers to establish eligibility for the position. ORS

408.230(1)(a)(A).

ORS 408.230(2) then sets out how public employers

must grant preference for veterans and disabled veterans:

“(a) For an initial application screening used to develop

a list of persons for interviews, the employer shall add five

preference points to a veteran’s score and 10 preference

points to a disabled veteran’s score.

“(b) For an application examination, given after the

initial application screening, that results in a score, the

employer shall add preference points to the total combined

examination score without allocating the points to any single

feature or part of the examination. The employer shall

add five preference points to a veteran’s score and 10 preference

points to a disabled veteran’s score.

“(c) For an application examination that consists of

an interview, an evaluation of the veteran’s performance,

experience or training, a supervisor’s rating or any other

method of ranking an applicant that does not result in a

score, the employer shall give a preference to the veteran

or disabled veteran. An employer that uses an application

examination of the type described in this paragraph shall

devise and apply methods by which the employer gives special

consideration in the employers hiring decision to veterans

and disabled veterans.”

The statute thus provides three different ways that

public employers must grant preference for veterans and disabled

veteran applicants; the method of preference depends

on the type of selection process the public employer uses.

First, for any initial application screening that is used to

develop a list of applicants to interview, the employer must

add a specified number of points to the veteran’s or disabled

veteran’s score. ORS 408.230(2)(a). Second, for an examination

that is given after the initial application screening and

that results in a score, the employer must again “add preference

points to the total combined examination score.” ORS

408.230(2)(b). Third, if the employer uses any other method

of ranking that does not result in a score, the employer must

Cite as 361 Or 761 (2017) 765

“devise and apply methods by which the employer gives special

consideration in the employer’s hiring decision to veterans

and disabled veterans.” ORS 408.230(2)(c).

The law makes clear that those preferences “are not

a requirement that the public employer appoint a veteran or

disabled veteran to a civil service position.” ORS 408.230(3).

Rather, the law provides that the employer is required to

appoint a veteran or disabled veteran only if the results of

the evaluation process, combined with the preferences, “are

equal to or higher than the results of an application examination

for an applicant who is not a veteran or disabled veteran.”

ORS 408.230(4).

A violation of the preference law is an unlawful

employment practice. ORS 408.230(6). A veteran or disabled

veteran who claims to be aggrieved by such an unlawful

employment practice may file a complaint with the

Commissioner of BOLI. ORS 408.230(7).

BOLI adopted administrative rules to enforce the

requirements of ORS 408.230. Among other things, those

rules provide that,

“[a]t each stage of the application process, a public employer

will grant a preference to a veteran or disabled veteran who

successfully completes an initial application screening or

an application examination or a civil service test the public

employer administers to establish eligibility for a vacant

civil service position.”

OAR 839-006-0450(2).

With that background in mind, we turn to the facts

of this case, which we take from the uncontested findings in

BOLI’s final order. The county posted an internal announcement

seeking applications for a promotion from sergeant to

lieutenant. Three individuals applied, each of whom met the

minimum qualifications for the position. One of the three

applicants, Edwards, qualified for preference as a disabled

veteran.

The job announcement for the lieutenant position

stated that the county’s hiring decision would be based on a

letter of interest, a resume, a “360 degree review” consisting

766 Multnomah County Sheriff’s Office v. Edwards

of information from “civilian[s]” and coworkers, and an

internal command staff interview. The announcement did

not mention a preference for veterans or disabled veterans.

The county, after reviewing the letters of interest

and resumes of the three applicants, decided to grant all

three an internal command staff interview. The letter of

interest and resume that Edwards submitted showed some

carelessness that had not been exhibited by the other applicants.

Nevertheless, he was granted an interview along with

the others.

The county then conducted the 360 degree review

for the three applicants. Nine people responded to the

county’s survey concerning Edwards, including an applicant

who was competing with Edwards for the position. The

comments concerning Edwards were less positive than the

comments concerning the other applicants.

The internal command interview followed. The

interviewers were Undersheriff Moore, Chief Deputy Gates,

and Captain Reiser, who was Edwards’s immediate supervisor.

After the interview, each of the interviewers independently

ranked the applicants. Each of those interviewers

ranked Edwards third. There is no dispute that there were

sound, job-related reasons for the rankings.

The interviewers’ recommendations were forwarded

to Staton, the Multnomah County Sheriff. Staton met with

the county’s human resources manager, Ott. Following that

meeting, the position was offered to one of the other applicants,

not Edwards.

Edwards asked the county for a written explanation

of its decision not to promote him. Ott, as the manager

of human resources, responded. She explained that,

“[b]ecause there were no numerical tests involved in which

to apply your veteran preference points, we applied your

points as you went into this process, and you were the number

one candidate at the top of the list of three potential

candidates for promotion.”

Edwards then filed a complaint with BOLI, alleging

that the county had committed an unlawful employment

practice by failing to give him the preferential treatment that

Cite as 361 Or 761 (2017) 767

ORS 408.230 requires. BOLI investigated the complaint.

Following the investigation, the agency issued a notice of

hearing and formal charges, alleging that the county had

failed to “devise and apply methods” of granting Edwards

the preferential treatment that ORS 408.230(2)(c) requires.

The hearing revealed that the county has no written

policy describing the methods that it applies to give preference

to veterans and disabled veterans. The only evidence

concerning the county’s policy came from testimony and

exhibits produced at the hearing.

That evidence consisted of conflicting explanations

from county personnel about how the disabled veteran preference

was applied to Edwards’s application. Ott testified

that it was her responsibility—and not that of the internal

command interviewers—to apply the preference. At one

point, she stated that the preference applied “at the beginning

of the process.” At another point, she explained that, at

the end of the hiring process, she told Staton that the disabled

veteran’s preference had been applied to Edwards, but

it was not sufficient to “get him up to being the number one

candidate.” But she also testified that she had told Staton

that, “going into this process,” Edwards “is his number one

candidate.”

Ott also stated that, if Edwards had been “marginally

close to the top two candidates, my responsibility was to

say to the Sheriff that, [Edwards] gets the job * * *. And that

could not occur because he was not competitive; he was not

ready for promotion based on the process.” At still another

point, Ott explained that she had advised the internal command

interviewers that Edwards was the “top candidate

going into the process.” She also stated that she had told

the interviewers that, if Edwards scored “even a competitive

third * * * the job was his and that was the direction given

to them.” But later, she said that her “competitive third”

remark was “not my direction to anybody.”

Undersheriff Moore testified that he had understood

from Ott that Edwards was considered “the number

one prospect going into the process,” and that was how the

disabled veteran’s preference applied. He did not view the

preference as applying to each of the components of the

768 Multnomah County Sheriff’s Office v. Edwards

application process—the letter of interest and resume, the

360 degree review, and the interview—individually. But he

also stated that he “jelled up my kind of beliefs around this

and made one set of recommendations,” so that any veteran’s

preference “applied to all.” Moore said that, after the interview,

he evaluated whether Edwards was “ready to be

promoted.” His understanding of the process was that, if

Edwards had “the requisite skill set,” then “he would have

the job, regardless of the qualifications of the other candidates,

because ‘he was entitled to it as a disabled veteran.’ ”

Moore did not mention the disabled veteran’s preference in

his recommendations to Staton.

Chief Deputy Gates testified that he did apply a

disabled veteran’s preference in considering Edwards to be

“the top candidate at each stage of the process” and that he

“needed a reason not to keep Sgt. Edwards as the number

one candidate.” At the same time, he also testified that he

did not apply the preference himself. Rather, he evaluated

each component—the letter of interest and resume, the 360

degree review, and the interview—“on its own merits.”

After the hearing, BOLI issued a final order containing

extensive findings of fact and ultimately concluded

that the county had failed to comply with ORS 408.230(2).

In brief, BOLI concluded that the county had failed to

devise any method of giving preference to disabled veterans

in Edwards’s situation. BOLI found that the county had

offered “confusing and inconsistent” explanations as to how

it applied the disabled veteran’s preference. BOLI cited in

particular the inconsistencies in Ott’s, Moore’s, and Gates’s

testimony. There were conflicting explanations, BOLI noted,

about when the internal command interviewers were

advised about the preference and how it would be applied.

BOLI observed that there also was inconsistent testimony

about what giving Edwards preference even meant. BOLI

noted that witnesses testified variously that it meant that

Edwards was the “number one candidate going into the process,”

that it was Edwards’s job if he showed himself “ready

for promotion,” and that it was his job so long as he was

“even a competitive third.” BOLI further concluded that,

if the county had devised a method of giving preference to

Cite as 361 Or 761 (2017) 769

disabled veterans, it failed to apply that preference at each

stage of the hiring process, as BOLI’s administrative rules

require.

BOLI ordered that the county adopt a “coherent,

consistent, written and reasonable method by which to apply

veterans’ preference at each stage of any hiring or promotion

decisions that must meet the criteria of ORS 408.230.” It

further ordered the county to cease and desist from violating

the veterans’ preference statute, to train its staff, and to

pay the sum of $50,000 in damages for Edwards’s emotional

distress resulting from the county’s violation of the law.

The county appealed. It did not take issue with any

of the findings of fact in BOLI’s final order. It did contest

the final order in several other respects. First, the county

argued that BOLI erred in concluding that it had failed to

“devise and apply methods” for granting Edwards disabled

veteran’s preference. According to the county, it satisfied the

statute so long as it gave Edwards some preference, regardless

of whether it devised a particular method of doing so.

Second, it argued that the agency had exceeded its statutory

authority in adopting administrative rules that require

such a veteran’s preference “at each stage” of the hiring process.

Third, it argued that BOLI lacked statutory authority

to award damages for emotional distress and that, in any

event, substantial evidence did not support BOLI’s decision

to award such damages in this case.

The Court of Appeals rejected each of those arguments.

The court concluded that BOLI correctly interpreted

ORS 408.230(2)(c) to require the county to “form a coherent

and stable method and apply that method.” Multnomah

County Sheriff’s Office, 277 Or App at 553. It concluded that

BOLI’s rules requiring public employers to apply such methods

“at each stage” of the hiring process are valid. Id. at

554-57. The court determined that the county’s challenge to

BOLI’s authority to award damages for emotional distress

was unpreserved and that the county’s substantial-evidence

challenge was without merit. Id. at 560-64.

On review, the county again advances three arguments.

First, the county argues that the Court of Appeals

770 Multnomah County Sheriff’s Office v. Edwards

erred as a matter of law in construing ORS 408.230(2)(c)

to require a particular method of granting preference to

veterans and in concluding that the county violated that

statute. Second, the county challenges BOLI’s authority to

adopt administrative rules requiring that public employers

apply a veteran’s preference at every stage of the hiring process.

Third, the county challenges the agency’s authority to

award damages for emotional distress.

We begin with the county’s contention that the

Court of Appeals erred in construing ORS 408.230(2)(c).

In the county’s view, the statutory requirement to “devise

and apply methods” of granting veterans’ preference “was

intended to provide employers with flexibility in determining

how to apply the veterans’ preference in a hiring process

that does not result in a score—no single, uniform method is

required.” As the county sees it, the statute provides for an

“informal process” that may “vary between recruitments.” It

is sufficient, the county contends, “for an employer to know

how it will apply the preference in a particular hiring process”;

no preexisting policy is required.

BOLI argues that the Court of Appeals correctly

construed ORS 408.230(2)(c). It agrees with the county that

the statute permits flexibility in devising and applying such

a method and that nothing in ORS 408.230(2)(c) requires

a single, uniform method to be applied in all hiring processes.

BOLI nevertheless insists that the statute requires

a public employer to have at least some discernible “stable

and coherent method of giving a veteran special consideration

and then apply that method to its hiring decision.” The

undisputed evidence, BOLI contends, shows that the county

devised no such method at all.

The parties’ contentions require us to determine

what ORS 408.230(2) means when it says that a public

employer must “devise and apply methods” of granting

preference to veterans and disabled veterans applying for

employment. When a statute has been interpreted by an

administrative agency charged with enforcing it, there may

be occasion to defer to the agency’s construction, depending

on the nature of the term at issue. Springfield Education

Assn v. School Dist., 290 Or 217, 223-24, 621 P2d 547 (1980).

Cite as 361 Or 761 (2017) 771

In this case, the terms at issue are not so precise as to

obviate the need to interpret them, nor are they so broadly

delegative in nature as to invite deference to the agency’s

construction of them. Rather, they are inexact, requiring us

to determine the meaning most likely intended by the legislature

that enacted it, without any deference. OR-OSHA

v. CBI Services, Inc., 356 Or 577, 585, 341 P3d 701 (2014).

To determine the intended meaning of a statute, we use the

analytic framework set forth in State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009), which requires us to look to the

text of the statute in its context along with helpful legislative

history. Id.

As we described earlier, ORS 408.230(2)(c) provides:

“For an application examination that consists of an interview,

an evaluation of the veteran’s performance, experience

or training, a supervisor’s rating or any other method

of ranking an applicant that does not result in a score, the

employer shall give a preference to the veteran or disabled

veteran. An employer that uses an application examination

of the type described in this paragraph shall devise and

apply methods by which the employer gives special consideration

in the employer’s hiring decision to veterans and

disabled veterans.”

(Emphasis added.) At issue is what the statute means when

it requires public employers to “devise” a “method” of granting

preference to a veteran or disabled veteran. Neither

term is defined in the statute itself. When the legislature

does not provide a definition of a statutory term, we generally

presume that it intended the terms to mean what they

mean in ordinary usage. State v. Dickerson, 356 Or 822, 829,

345 P3d 447 (2015).

Webster’s defines “devise” as follows:

“1 a : to form in the mind by new combinations of ideas,

new applications of principles, or new arrangement of parts

: formulate by thought : contrive, invent, plan, scheme

”

Webster’s Third New International Dictionary 619 (unabridged

ed 2002). The American Heritage Dictionary offers a similar

772 Multnomah County Sheriff’s Office v. Edwards

definition: “[t]o form, plan, or arrange in the mind; design

or contrive: devised a new system for handling mail orders.”

American Heritage Dictionary of the English Language 497

(5th ed 2011).

In ordinary usage, to “devise” connotes more than

just acting in an ad hoc fashion. For example, throughout

the Oregon Revised Statutes, the legislature has used the

term to refer to the creation of systems, programs, and

plans. See, e.g., ORS 80.101(1) (“The Secretary of State shall

devise a method or system to provide approved unique identifiers

for persons filing documents.”); ORS 240.145(4) (the

Administrator of the Personnel Division of the Department

of Administrative Services shall “[d]evise plans for and

cooperate with appointing authorities and other supervisory

officers in the conduct of employee training programs.”);

ORS 291.100(2) (“The Oregon Department of

Administrative Services shall devise and supervise statewide

financial management systems for all state agencies”);

ORS 344.530(6) (the Department of Human Services shall

“[d]evise means for the sale and distribution of the products

of [rehabilitation] facilities.”); ORS 336.227(1) (the Oregon

Health Authority shall “[d]evise a public information program”);

ORS 536.231 (“The Water Resources Commission

shall devise plans and programs for the development of

water resources of this state.”); ORS 830.110(2) (the Marine

Board shall “[d]evise a system of identifying numbers for

boats, floating homes and boathouses”).

Consistently with that usage, ORS 408.230(2)(c)

specifies that what must be “devise[d]” is a “method” of

granting preference to veterans and disabled veterans.

Webster’s defines “method” as

“1 : a procedure or process for attaining an object: as

* * * b (1) : a systematic procedure, technique, or set of

rules employed in philosophical inquiry * * * 2 a : orderly

arrangement, development, or classification : plan, design

* * *

“* * * * *

“Method can apply to any plan or procedure but usu[ally]

implies an orderly, logical, effective plan or procedure, connoting

also regularity.”

Cite as 361 Or 761 (2017) 773

Webster’s at 1422-23. Similarly, the American Heritage

Dictionary defines “method” as follows:

“1. A means or manner of procedure, especially a regular

and systematic way of accomplishing something: a simple

method for making a pie crust; mediation as a method of

solving disputes. * * *

“2. Orderly arrangement of parts or steps to accomplish

an end: random efforts that lack method.

“3. The procedures and techniques characteristic of a

particular discipline or field of knowledge: This field course

gives an overview of archaeological method.

“* * * * *

“These nouns refer to the plans or procedures followed

to accomplish a task or attain a goal. Method implies a

detailed, logically ordered plan.”

American Heritage Dictionary at 1107-08.

The ordinary meanings of the words “devise” and

“method,” when considered together, suggest that what ORS

408.230(2)(c) requires is that public employers formulate

some sort of standard or regular procedure that the public

employer develops in advance and then applies in a hiring

process. As noted in Webster’s, although the word “method”

can refer to any sort of plan or procedure, it usually refers

to “an orderly, logical, effective plan or procedure, connoting

also regularity.”

We see no indication from the text or context of ORS

408.230(2)(c) that the legislature intended anything other

than what the statute’s terms ordinarily mean. Rather,

the instruction to “devise and apply methods” of veterans’

preference—as opposed to, say, “apply a preference”—

suggests that the legislature intended public employers to

create some kind of discernible plan for applying veterans’

preference rather than taking an ad hoc approach.

The county argues that the evolution of the text

of ORS 408.230(2)(c) supports a contrary reading of that

statute. The county observes that, before 2007, state law

required that there be a “uniform method” for giving preference

to veterans and disabled veterans in an unscored

774 Multnomah County Sheriff’s Office v. Edwards

hiring process. That changed in 2007, when the legislature

amended the statute and removed the word “uniform.” In

the county’s view, that change supports its contention that

the statute, as amended, does not require public employers

to adopt specific methods of granting preference to veterans

and disabled veterans.

The county correctly identifies a textual change in

the statute, but it is mistaken about the significance of that

change. Before 2007, the law was unclear about precisely

how veterans were to be given preference, in cases in which

the public employer relied on unscored application examinations.

The law provided:

“If the test consists of interviews, performance, evaluation

of experience and training, a supervisor’s rating or any

other method of ranking applicants that does not result in

a score, preference must still be provided to veterans and

disabled veterans. Preference does not mean that veterans

must be appointed to vacant positions, but does provide a

uniform method by which special consideration is given

to eligible veterans and disabled veterans seeking public

employment.”

ORS 408.230(1) (1999). Although the law referred to a “uniform

method” of giving “special consideration,” the law did

not actually specify how the special consideration was to factor

into the actual hiring decision.

Such ambiguities prompted the introduction of

Senate Bill (SB) 822 in the 2007 legislative session, at the

request of the Veterans of Foreign Wars Employment and

Civil Service Committee. The bill proposed to delete the last

sentence of ORS 408.230(1) (1999) and replace it with the

requirement that “[a]n employer that uses an examination of

the type described in this paragraph shall devise and apply

methods by which the employer gives special consideration

in the employer’s hiring decision to veterans and disabled

veterans.” As Robert Thornhill, chairman of that committee,

testified, under the then-existing law, the veterans’ preference

“does not enter into the current selection process in any

fashion whatsoever” for an unscored applicant. Testimony,

Senate Education and General Government Committee, SB

822, Apr 10, 2007, Ex A (statement of Robert Thornhill). SB

Cite as 361 Or 761 (2017) 775

822 was intended to make clear that “meaningful preference”

is given in the “selection process” for both scored and

unscored application processes. Id. The Deputy Director of

the Oregon Department of Veterans’ Affairs, Paula Brown,

likewise testified that the purpose of the bill was to “enhance

the employment preference” for veterans. Audio Recording,

Senate Education and General Government Committee, SB

822, Apr 10, 2007 at 47:52 (statement of Paula Brown).

Supporters of the bill did explain that it provided

“flexibility in determining how preference is to be granted

for these positions.” Testimony, Senate Education and

General Government Committee, SB 822, Apr 10, 2007, Ex

A (statement of Robert Thornhill). But that referred to the

fact that the bill did not require any predetermined method

of granting the preference to be applied by all employers in

all cases. Nothing in the legislative history suggests that the

legislature intended to afford public employers the “flexibility”

to avoid devising a process for granting the preference

at all. To the contrary, the law was designed to ensure that

public employers came up with actual methods of granting

veterans preference in the hiring process.

With that interpretation of ORS 408.230(2) in

mind, we turn to the question whether BOLI correctly determined

that the county failed to comply with the statute.

The county argues that it fully complied with the statute in

that “[e]ach person in the hiring process consistently stated

that Edwards would be treated as the number one candidate

going into the interview process.” Granted, the county

says, different witnesses “had his or her own articulation”

of what that meant. But the fact remains, the county urges,

that those witnesses “had a consistent understanding that

Edwards would be given a preference through granting him

an interview and treating him as the number one candidate.”

In response, BOLI argues that the county’s arguments cannot

be reconciled with the undisputed factual findings in its

final order.

BOLI is correct. To be sure, the county’s version

of the facts is supported by references to testimony and

exhibits in the record. On judicial review of an administrative

agency’s final order, however, that is beside the point.

776 Multnomah County Sheriff’s Office v. Edwards

In such cases, we do not examine the record to determine

whether evidence supports a view of the facts different from

those found by the agency. If challenged, an agency’s findings

of fact are binding unless those findings are not supported

by substantial evidence in the record as a whole. ORS

183.482(8)(c); Younger v. City of Portland, 305 Or 346, 356,

752 P2d 262 (1988). And if not challenged, the agency’s findings

constitute the facts for the purposes of judicial review.

Jefferson County School Dist. No. 509-J v. FDAB, 311 Or

389, 393 n 7, 812 P2d 1384 (1991).

In this case, the county did not challenge any of the

findings in BOLI’s final order. As a result, those findings are

binding for the purposes of our review. And they are fatal to

the county’s argument. In contrast with the county’s version

of events, BOLI found that the county had not adopted a consistent

method of granting veterans preference in the hiring

process. To the contrary, BOLI found that the witnesses for

the county offered “confusing and inconsistent” explanations

for its hiring process and that they could not agree on what

granting a disabled veteran’s preference meant, who would

apply it, or when it would be applied. We conclude that BOLI

did not err in determining that the county failed to comply

with ORS 408.230(2)(c).

We briefly turn to the county’s second argument,

that BOLI exceeded its authority in adopting administrative

rules that require public employers to apply a method

of granting preference at “each stage” of the hiring process.

Given our conclusion that BOLI correctly determined that

the county failed to devise and apply any method of granting

a preference to veterans or disabled veterans in this case,

whether it applied such a method at “each stage” is a moot

point. Accordingly, it is not necessary for us to determine

the validity of BOLI’s administrative rule, and we express

no opinion on the matter one way or the other.

Finally, we turn to the county’s assertion that BOLI

lacked statutory authority to award damages to Edwards for

emotional distress. The county concedes that its assertion

was not preserved. It nevertheless asks that we review the

matter because the error is “jurisdictional,” and such errors

may be raised at any time, even for the first time on appeal

Cite as 361 Or 761 (2017) 777

or judicial review. BOLI responds that the county uses the

term “jurisdictional” too loosely and that the exception to

the requirement of preservation pertains only to claims of a

lack of subject-matter jurisdiction.

We agree with BOLI. This court has long held that

the ordinary rule requiring preservation of claims of error

does not apply when the claim is that a lower court lacked

“subject-matter jurisdiction.” Waddill v. Anchor Hocking,

Inc., 330 Or 376, 384, 8 P3d 200 (2000) (party may raise

lack of subject-matter jurisdiction “at any time, including for

the first time on appeal”). The same basic principle has been

applied to administrative law cases. If a matter concerns

the “jurisdiction” of an agency, then the court may entertain

the issue regardless of preservation. This court’s opinion in

SAIF v. Shipley, 326 Or 557, 561 n 1, 955 P2d 244 (1998),

illustrates the principle.

In Shipley, the claimant requested that his employer

reopen a closed claim for an on-the-job knee injury. He

argued that his latest medical treatments were compensable

as medical services related to an originally accepted

claim. His employer denied the request, but the Workers’

Compensation Board set aside the denial and found the

medical services claim compensable. The employer sought

judicial review of the board’s decision and asserted, for the

first time, that the board lacked jurisdiction to hear medical

services claims. The employer argued that relevant

statutes conferred exclusive jurisdiction over such claims on

the Director of the Department of Consumer and Business

Services. Id. at 560-61.

This court addressed the issue, in spite of the fact

that it had not previously been raised. The court explained

that “[a]n argument that the lower tribunal lacked jurisdiction

may be raised for the first time on appeal.” Id. at 561

n 1. That is so, the court explained, because “[t]he parties

may not waive lack of subject matter jurisdiction.” Id.

In the context of that case law, the term “jurisdiction”

does not refer to the correctness of a particular decision

of a court or agency. In non-administrative law cases,

it refers to subject-matter jurisdiction, that is, the authority

778 Multnomah County Sheriff’s Office v. Edwards

to exercise judicial power. See, e.g., State v. Nix, 356 Or 768,

780, 345 P3d 416 (2015) (referring to subject-matter jurisdiction

as possession of “judicial power to act”). The rationale

for that limitation is that the authority of a court to

exercise judicial power cannot be conferred by waiver or a

failure to object. Wink v. Marshall, 237 Or 589, 592, 392 P2d

768 (1964) (subject-matter jurisdiction “cannot be conferred

by the parties by consent, nor can the want of jurisdiction

be remedied by waiver, or by estoppel”). Thus, while judicial

orders entered when a court lacked subject-matter jurisdiction

may be attacked “at any time and any place, whether

directly or collaterally,” other orders may be challenged

only directly, in a preserved claim of error. PGE v. Ebasco

Services, Inc., 353 Or 849, 856, 306 P3d 628 (2013) (quoting

State v. McDonnell, 343 Or 557, 562-63, 176 P3d 1236

(2007)).

The same distinction holds in administrative law

cases. Challenges to an agency’s “jurisdiction” are limited

to those concerning the agency’s authority to act at all with

respect to the category of matters before it. As this court

explained in Diack v. City of Portland, 306 Or 287, 293,

759 P2d 1070 (1988), “ ‘[j]urisdiction’ depends on whether

the matter is one that the legislature has authorized the

agency to decide.” See also Planned Parenthood Assn v. Dept.

of Human Res., 297 Or 562, 565, 687 P2d 785 (1984) (“In the

proper sequence of analyzing the legality of action by officials

under delegated authority, the first question is whether the

action fell within the reach of their authority * * * described

as ‘jurisdiction.’ ”). Just as subject-matter jurisdiction cannot

be conferred by consent, waiver, or estoppel, an administrative

agency’s “jurisdiction” in this sense may not be either.

Diack, 306 Or at 293. As a result, the issue may be raised for

the first time on judicial review. Id.

That is not so when a challenge targets the lawfulness

of an agency’s exercise of authority conferred on it. In

such cases, challenges to the lawfulness of agency action

must comply with ordinary rules of preservation of error.

Thus, for example, in O’Hara v. Board of Parole, 346 Or 41,

203 P3d 213 (2009), the petitioner argued that the Board of

Parole violated various statutes and administrative rules in

conducting a hearing without allowing him to call witnesses

Cite as 361 Or 761 (2017) 779

and in failing to issue subpoenas. There was no question

concerning the agency’s “jurisdiction” to conduct the hearing.

The only issue was whether the agency conducted the

hearing in accordance with relevant statutes and administrative

rules. In that case, the court concluded that, before

addressing the merits of the petitioner’s contentions, it had

to determine whether they had been properly preserved. Id.

at 47-49.

In this case, the legislature has conferred on BOLI

“general jurisdiction and power for the purpose of eliminating

and preventing unlawful practices.” ORS 659A.800(2).

The term “unlawful practice” encompasses “any unlawful

employment practice,” which includes a practice “that is specifically

denominated in another statute * * * as an unlawful

practice.” ORS 659A.001(12). ORS 408.230(6) is just such a

statute that specifically denominates violation of the veterans’

preference law as an unlawful practice. If BOLI finds

that an employer has engaged in an unlawful practice, it is

authorized to

“[e]liminate the effects of the unlawful practice that the

respondent is found to have engaged in, including but not

limited to paying an award of actual damages suffered by

the complainant and complying with injunctive or other

equitable relief.”

ORS 659A.850(4)(a)(B).

There can be no question that BOLI possessed

“jurisdiction” over this matter. The county’s argument

concerning the agency’s award of damages for emotional

distress concerns the lawfulness of BOLI’s exercise of the

authority granted to it. That is not the sort of claim of error

that may be raised for the first time on judicial review.

The county argues that, in any event, we should

reach the issue as a matter of plain error. To qualify as

“plain error,” an asserted error must be one of law, apparent

on the face of the record, and not reasonably in dispute.

State v. Serrano, 355 Or 172, 179, 324 P3d 1274 (2014). In

this case, the county’s claim of error fails to satisfy the third

requirement; that is to say, BOLI’s error—if any—is not so

obvious that we can say it is beyond reasonable dispute.

780 Multnomah County Sheriff’s Office v. Edwards

The decision of the Court of Appeals is affirmed.

The final order of the Bureau of Labor and Industries is

affirmed.