No. 43 August 10, 2017 761

IN THE SUPREME COURT OF THE

STATE OF OREGON

MULTNOMAH COUNTY

SHERIFF’S OFFICE,

Petitioner on Review,

v.

Rod EDWARDS

and Bureau of Labor and Industries,

Respondents on Review.

(BOLI No. 0114; CA A157146; SC S064109)

On review from the Court of Appeals.*

Argued and submitted November 15, 2016.

Jacqueline Kamins, Multnomah County Attorney’s Office, 

Portland, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Jenny M. Madkour, 

County Attorney for Multnomah County, Portland, and 

Katherine Thomas, Multnomah County Attorney’s Office,

Portland.

Carson L. Whitehead, Assistant Attorney General, 

Salem, argued the cause and filed the brief for respondents on 

review. Also on the brief were Ellen F. Rosenblum, Attorney 

General, and Benjamin Gutman, Solicitor General.

Sean E. O’Day, League of Oregon Cities, Salem, filed 

the briefs for amici curiae, League of Oregon Cities and 

Association of Oregon Counties. Also on the briefs was Rob 

Bovett, Association of Oregon Counties, Salem.

Michael E. Rose, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

______________

* Judicial review of a Final Order of the Bureau of Labor and Industries, 

dated May 19, 2014. 277 Or App 540, 373 P3d 1099 (2016).
762 Multnomah County Sheriff’s Office v. Edwards

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Flynn, and Duncan, Justices, and Ortega, Judge of 

the Court of Appeals, Justice pro tempore.**

LANDAU, J.

The decision of the Court of Appeals is affirmed. The final 

order of the Bureau of Labor and Industries is affirmed.

Case Summary: In an administrative proceeding before the Bureau of Labor 

and Industries to challenge the county’s failure to apply veterans’ preference in 

hiring, BOLI found that the county had failed to apply the veterans’ preference 

and awarded damages to the disabled veteran applicant. The Court of Appeals 

affirmed the final order and the county petitioned for review. Held: (1) when a 

public employer hires or promotes individuals by means of a process that does 

not include a score, it must establish in advance a standard, regular procedure 

to apply a preference for veterans; and (2) because the county had failed to preserve its argument that BOLI erred in awarding damages to the disabled veteran 

applicant, the court would not reach that argument.

The decision of the Court of Appeals is affirmed. The final order of the Bureau 

of Labor and Industries is affirmed.

______________

** Baldwin, J. retired on March 31, 2017, and did not participate in the decision of this case. Brewer, J., retired on June 30, 2017, and did not participate in 

the decision of this case. Nakamoto, J., did not participate in the consideration or 

decision of this case.
Cite as 361 Or 761 (2017) 763

LANDAU, J.

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 must 

successfully complete either an initial application screening 
764 Multnomah County Sheriff’s Office v. Edwards

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 

“devise and apply methods by which the employer gives 
Cite as 361 Or 761 (2017) 765

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 of information from “civilian[s]” and coworkers, and an 
766 Multnomah County Sheriff’s Office v. Edwards

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 ORS 408.230 requires. BOLI investigated the 
Cite as 361 Or 761 (2017) 767

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 Sheriff 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 Sheriff 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

<~ an engine> <devising a new style in hats>”

Webster’s Third New International Dictionary 619 

(unabridged ed 2002). The American Heritage Dictionary 
772 Multnomah County Sheriff’s Office v. Edwards

offers a similar 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, April 10, 2007, Ex A (statement of Robert Thornhill). 
Cite as 361 Or 761 (2017) 775

SB 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, April 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, April 10, 2007, Ex 

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

fact that the bill did not require any pre determined 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.