S057511, Opinion — Coffey v. Board of Geologist Examiners

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Argued and submitted March 5, at the University of Oregon School of Law,
Eugene, Oregon, decision of Court of Appeals and order of Board of Geologist
Examiners affirmed July 9, 2010

Nicholas W. COFFEY,
Petitioner on Review,
v.
BOARD OF GEOLOGIST EXAMINERS,
Respondent on Review.
(BGE 03-03-002, 03-09-006, 04-07-004;
CA A134319; SC S057511)

235 P3d 678

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CJS, Licenses § 48.

# En Banc

On review from the Court of Appeals .*

James E. Mountain, Jr., of Harrang Long Gary Rudnick
P.C., Portland, argued the cause and filed the brief for peti-
tioner on review. With him on the brief was Jona J.
Maukonen.

Denise G. Fjordbeck, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief were John R. Kroger, Attorney General,
and Jerome Lidz, Solicitor General.

DURHAM, J.

The decision of the Court of Appeals and the order of the
Board of Geologist Examiners are affirmed.

\* Appeal from a Final Order of the Board of Geologist Examiners, January 22,
2008\. 226 Or App 418, 204 P3d 177 (2009).

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# DURHAM, J.

Nicholas W. Coffey (petitioner), a registered geolo-
gist, seeks review of a Court of Appeals decision, Coffey v.
Board of Geologist Examiners, 226 Or App 418, 204 P3d 177
(2009), that affirmed an order of the Board of Geologist
Examiners (board) that had revoked his certificate of regis-
tration on grounds of negligence, gross negligence, and two
violations of the board's rules of professional conduct. On
review, petitioner argues that this court should reverse the
order on one or more of the following grounds: the board
lacked the authority to revoke his certificate of registration,
the board's rules defining "negligence" and "gross negligence"
were insufficient, and some of the conclusions in the board's
order were not supported by substantial reason.1 We affirm
the Court of Appeals decision and the board's order.

In 2004, after receiving complaints about two of peti-
tioner's hydrogeology reports (the Nielson report and the
DeHart report), the board filed a notice of proposed discipli-
nary action in which it proposed to reprimand petitioner, sus-
pend petitioner's license for one month, impose a subsequent
probationary period if and when petitioner was reinstated,
and impose civil penalties.2 In 2005, after the board received
a third complaint regarding the quality of an letter opinion
prepared by petitioner (the Miller report), the board
amended its notice of proposed disciplinary action and raised
the proposed sanction to revocation of petitioner's certificate
of registration. The amended notice alleged that petitioner
had committed "negligence, gross negligence, incompetence
or misconduct in the practice of geology as a registered geol-
ogist" in the preparation and handling of the three reports,
and that petitioner had violated three of the standards in the

1 Petitioner does not challenge the board's factual findings. Accordingly, we
accept those findings as the facts for purposes of judicial review. See Meltebeke v.
Bureau of Labor and Industries, 322 Or 132, 134, 903 P2d 351 (1995) (so holding
under analogous circumstances).

2 The board had previously issued petitioner a letter of concern, dated March 27,
2003, in which it had noted concerns about the technical quality of "numerous reports"
completed by petitioner and emphasized that "it is imperative that [petitioner's] work
product reflect the 'care, skill, and diligence' " demonstrated by registered geologists in
petitioner's community.

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board's code of professional conduct. Following a hearing
before an administrative law judge, the board issued a final
order that revoked petitioner's certificate of registration.3
In that order, the board concluded that petitioner had
been negligent and grossly negligent in his work on the
Nielson and DeHart reports, negligent in his work on the
Miller report, and had violated two rules of professional
conduct.4 Petitioner sought judicial review and the Court
of Appeals affirmed without opinion. Coffey, 226 Or App
418.

On review, petitioner first argues that the board
lacked the authority to revoke his registration. He relies on
Megdal v. Board of Dental Examiners, 288 Or 293, 605 P2d
273 (1980) for the proposition that the board must adopt a
rule stating the board's standard for selecting a particular
sanction from the range of possible sanctions listed in ORS
672.675 before it may impose any of those sanctions. Peti-
tioner argues that, because the board did not adopt such a
rule, it lacked legal authority to revoke his certificate of reg-
istration. For the reasons that follow, we disagree.

Whether an agency is required to promulgate rules
in advance of an adjudication is "a matter of statutory

" Initially, the board issued a final order that revoked petitioner's license. After
petitioner filed a petition for judicial review in the Court of Appeals, the board
withdrew its final order, reconsidered the matter, and issued a final order on recon-
sideration pursuant to ORS 183.482(6). That statute provides, in part:

"At any time subsequent to the filing of the petition for review and prior to
the date set for hearing [before the Court of Appeals] the agency may withdraw
its order for purposes of reconsideration. If an agency withdraws an order for
purposes of reconsideration, the agency shall, within such time as the court
may allow, affirm, modify or reverse its order. If the petitioner is dissatisfied
with the agency action after withdrawal for purposes of reconsideration, the
petitioner may refile the petition for review and the review shall proceed upon
the revised order. An amended petition for review shall not be required if the
agency, on reconsideration, affirms the order or modifies the order with only
minor changes. * * **

In the Court of Appeals, petitioner filed an amended petition for judicial review of
the final order on reconsideration. Accordingly, the board's final order on reconsid-
eration (i.e., its second order) is the operative order on review.

4 In the final order on reconsideration, the board concluded that petitioner had
violated (1) OAR 809-020-0025(1) by failing to respond to a letter from the board
within the designated time period; and (2) OAR 809-020-0001(1) by signing and
placing his seal on unprofessional work. Petitioner does not challenge those conclu-
sions on review.

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interpretation."5 Trebesch v. Employment Division, 300 Or
264, 267, 710 P2d 136 (1985); see also Forelaws on Board v.
Energy Fac. Siting Council, 306 Or 205, 214, 760 P2d 212
(1988) ("If an agency is required to adopt a rule through rule-
making proceedings, that requirement must be found
through an analysis of the specific statutory scheme under
which an agency operates and the nature of the rule that the
agency wishes to adopt." (Citation omitted.)). When no stat-
ute expressly requires an agency to make rules before select-
ing a disciplinary sanction, a reviewing court examines the
statutory text and context pertaining to the agency's dele-
gated responsibilities regarding the disciplinary process to
discern whether the legislature nonetheless impliedly
intended to require the agency to make rules concerning the
subject matter in question before selecting an otherwise
authorized sanction.

"In the absence of an explicit directive, the breadth and
kind of responsibility delegated to the agency by the statu-
tory term (fact-finding, applying an ambiguous law, or
developing policy) will be one, but not a dispositive, factor
which may indicate an implicit directive from the legisla-
ture for rulemaking. In addition, the tasks the agency is
responsible for accomplishing, and the structure by which
the agency performs its mandated tasks, all of which are

5 Two lines of authority from this court prescribe distinct modes of analysis for
determining the intent of the legislature in enacting certain statutes. In PGE v.
Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993), this court
outlined three levels of analysis, beginning with the text and context of the perti-
nent statute, that have as their objective the discovery of "the intent of the legis-
lature" in enacting a statute. Id. In Springfield Education Assn. v. School Dist., 290
Or 217, 621 P2d 547 (1980), this court, relying on earlier cases, including Megdal,
concluded that it would determine the nature and scope of agency authority dele-
gated by statutes, including whether a statute required agency rulemaking in
advance of adjudication, by examining three types of statutory terms, "exact,"
"inexact," and "delegative." Id. at 223 (citing McPherson v. Employment Division,
285 Or 541, 591 P2d 1381 (1979), and Megdal); see also Ross v. Springfield School
Dist. No. 19, 294 Or 357, 367-68, 657 P2d 188 (1982) (discussing the three catego-
ries of statutory terms outlined in Springfield Education Assn. and distinguishing
Megdal).

Those lines of authority are not inconsistent; each operates in its proper con-
text to guide courts and agencies in determining the intent of the legislature in
enacting statutes. See Bergerson v. Salem-Keizer School District, 341 Or 401, 413-
14 & n 7, 144 P3d 918 (2006) (rejecting argument that court must disregard cases
predating PGE; applying methodologies from both Springfield Education Assn.
and PGE to determine scope of interpretive responsibility of agency and court
under agency's authorizing statute).

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specified in an agency's authorizing legislation, must be
examined as a whole in order to discern the legislature's
intent with regard to rulemaking."

Trebesch, 300 Or at 270.

With the foregoing general principle in mind, we
turn to a discussion of the statutes identifying the board's
responsibilities. The legislature has charged the board with
regulation of the professional practice of geology in this state.
See generally ORS 672.505 to 672.705 (providing for admin-
istrative regulation of the practice of geology under board
authority). To enable the board to accomplish that general
mandate, the legislature has authorized the board to certify
qualified applicants as registered geologists (ORS 672.555),
has required the board to promulgate and distribute a code of
professional conduct (ORS 672.655),6 and has given the board
the power to discipline registered geologists for certain
described acts (ORS 672.675).

That final responsibility-disciplinary decisions-is
the specific task at issue in this case. ORS 672.675 provides
the statutory basis for revocation of a geologist's certificate of
registration:

"The State Board of Geologist Examiners has the power
to suspend, revoke or refuse to renew the certificate of regis-
tration of any registrant or reprimand any registrant who is
found to have been involved in:

"(1) The practice of any fraud or deceit in obtaining a
certificate of registration,

"(2) Any negligence, gross negligence, incompetence or
misconduct in the practice of geology as a registered
geologist;

"(3) Any felony; or

6 ORS 672.655 provides:

"The State Board of Geologist Examiners shall cause to be prepared and
shall adopt a code of professional conduct which shall be made known in writ-
ing to every registrant and applicant for registration under ORS 672.505 to
672.705. A copy of the code shall be provided to each successful applicant at the
time of registration under ORS 672.585. The board may revise and amend this
code of ethics from time to time and shall forthwith notify each registrant in
writing of such revisions or amendments."

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"(4) The commission of any unlawful act set forth in
ORS 672.505 to 672.705."

## (Emphasis added.)

Other statutes and rules describe the procedures by
which the board accomplishes the task of disciplining geolo-
gists. The board? refers sworn complaints against a geologist
to the board's compliance committee. ORS 672.665; OAR 809-
055-0000(3).8 If the committee determines that the complaint
"may have validity," then "it will notify the [geologist] of alle-
gations by mail and request written comments." OAR 809-
055-0000(4)(b). After the committee evaluates the complaint
and any written comments from the geologist, it makes its
recommendation to the board whether charges should be
brought. The board makes a final decision whether to pursue
formal charges. OAR 809-055-0000(4) - (5). If it chooses to do
so, the board then issues a notice informing the geologist
of the proposed disciplinary action, which triggers the full
panoply of contested case procedures under the Oregon
Administrative Procedures Act (APA), including the right to
judicial review. ORS 670.325(1);9 ORS 183.482 (providing for
judicial review of contested cases).

The legislature has granted broad rulemaking
authority to the board. ORS 670.310(1) provides:

"Except as otherwise provided by law and in accordance
with any applicable provisions of ORS chapter 183, each

7 The board consists of "four geologists and one public member, appointed by
the Governor," as well as the State Geologist, who is an ex officio member. ORS
672.615(1), (2). The board may also "appoint an administrator who shall not be a
member of the board." ORS 672.615(7).

8 We refer in this opinion to the version of OAR 809-055-0000 now in effect. The
2004 version of that rule, in effect at the time that the board received and reviewed
the three complaints about petitioner's hydrogeology reports, was substantively
identical, although it contained some differences in phrasing and section number-
ing that do not affect the analysis of this case.

9 ORS 670.325(1) provides that

"[a]ll proceedings for the refusal to issue, or the suspension or revocation of any
license, [or] certificate of registration * * * required to practice any profession
subject to the authority of a professional licensing or advisory board shall be
conducted pursuant to the procedure for contested cases required or author-
ized by ORS chapter 183."

ORS 670.304(8) expressly makes the above provision applicable to proceedings of
the board.

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professional licensing board and advisory board may make
such rules as are necessary or proper for the administration
of the laws such board is charged with administering."

The legislature, in ORS 670.304(8), has made ORS
670.310(1) applicable to the board.

As noted, ORS 672.655 requires the board to adopt a
code of professional conduct but does not specify the code's
content. Petitioner has not identified, and we have not dis-
covered, any statute that expressly requires the board to
adopt rules specifying the standards that it will follow in
selecting a particular sanction in disciplinary proceedings.
Petitioner submits, however, that the "legislature's grant of
authority to choose to punish from a list of potential sanc-
tions is sufficiently broad to constitute a delegation of legis-
lative authority." Accordingly, petitioner concludes, Megdal
requires the board to employ prior rulemaking that specifies
the criteria that the board will use in selecting a disciplinary
sanction.

Megdal concerned ORS 679.140 (1977), which
authorized the Board of Dental Examiners to regulate the
professional practice of dentists, and specifically authorized
the board to discipline any licensed dentist for "unprofes-
sional conduct." ORS 679.140(2) defined "unprofessional con-
duct" as "includ[ing] but not limited to" a list of specific activ-
ities. The Board of Dental Examiners revoked the petitioner's
dentistry license for fraudulent business practices con-
cerning applications for dental malpractice insurance-an
activity not listed as "unprofessional conduct" under ORS
679.140(2). The petitioner sought judicial review, arguing
that the board lacked the authority to discipline him without
first promulgating a rule identifying the particular fraudu-
lent business practice as unprofessional conduct. The court
noted that, in statutory schemes governing other occupa-
tional licensing agencies, the legislature had explicitly
required those agencies to promulgate rules of professional
conduct. In that context, the court in Megdal held that

"when a licensing statute contains both a broad standard of
'unprofessional conduct' that is not fully defined in the stat-
ute itself and also authority to make rules for the conduct of

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the regulated occupation, the legislative purpose is to pro-
vide for the further specification of the standard by rules,
unless a different understanding is shown."

Id. at 313-14. Relying on Trebesch and Megdal, petitioner
argues that, when the legislature has authorized an agency
to regulate a profession, has granted the agency broad rule-
making authority, has required the agency to adopt a code of
professional conduct, and has made the agency responsible
for completing an incomplete legislative policy, such as
selecting a disciplinary sanction, then a rebuttable presump-
tion arises that the legislature intended the agency to com-
plete that incomplete policy by rulemaking, rather than by
adjudication.

We disagree that Megdal requires the sort of rule-
making that petitioner seeks here. As noted, and as in
Megdal, the legislature has empowered the board with rule-
making authority.1º However, Megdal involved a situation in
which the legislature impliedly had directed an agency to
give detail to a term of delegation-"unprofessional con-
duct"-which the court characterized as a "broad standard
\* \* \* that is not fully defined in the statute itself." Id. at 313.
In doing so, the legislature authorized the agency to complete
an incomplete legislative policy by identifying by rule the
kind or kinds of conduct that would warrant discipline as
"unprofessional conduct."

In contrast, here the legislature has expressed a
complete policy: the board has the power to impose a sanction
from the list of sanctions set out in ORS 672.675, i.e., repri-
mand, refusal to renew the certificate of registration, suspen-
sion, or revocation, if it finds that a registrant has "been
involved in" conduct described in ORS 672.675(1) to (4).11 The

10 As noted, ORS 670.304 and ORS 670.310 vest the board with authority to
make all necessary or proper rules for the administration of the board's authorizing
statutes, in accordance with applicable provisions of the APA.

11 The legislature also has authorized the board to impose a civil penalty for a
violation of the statutes and rules that regulate the practice of geology. ORS
672.690(1) provides:

"In addition to any other penalty provided by law, a person who violates any
provision of ORS 672.515 to 672.705 or any rule adopted thereunder is subject
to payment of a civil penalty to the State Board of Geologist Examiners in the
amount of not more than $1,000 for each offense."

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four potential sanctions that the statute authorizes are grad-
uated in their severity, from reprimand to revocation. That
aspect of the statute indicates that the legislature intended
the board, when imposing professional discipline, to gauge
the type or types of disciplinary sanction imposed according
to the severity of the misconduct that it finds. Although that
determination by the board constitutes the exercise of dele-
gated authority, applying the specified graduated sanctions
to the facts underlying the charges of negligence and gross
negligence is more analogous to the interpretation and appli-
cation of existing law than to the making of new law or the
completion of an incomplete legislative policy. That explains,
in part, why Megdal does not require the particularized rule-
making for which petitioner contends before the board can
select a disciplinary sanction under ORS 672.675.12

Two additional interpretive clues lend further sup-
port to our conclusion. First, in other statutes that charge the
board with regulating other aspects of the profession of geol-
ogy, the legislature has explicitly required that the board act
by rulemaking, rather than by adjudication. See ORS
672.555(4) (board "shall, by rule," adopt the minimum
coursework requirements for an eligible applicant for a cer-
tificate of registration); ORS 672.555(2)(b)(D) (board shall
determine the adequacy of an applicant's geological work his-
tory experience "in accordance with standards adopted by
rule"); ORS 672.565(1) (board may create specialties "by rule,
with the rules to contain any required additional qualifica-
tions"); ORS 672.565(5) (board may "establish by rule criteria
for exempting persons applying for a certification from a

12 Trebesch confirms that the nature of the statutory term in question, i.e.,
whether the term is inexact or delegative, does not determine the necessity of rule-
making to define the term prior to its application in an adjudication:

"Megdal does not mean that all terms delegating policymaking discretion
can be applied only after rulemaking. Nor does Ross mean that terms delegat-
ing interpretive responsibility may always be applied as the agency chooses,
either by rule or by adjudication. Both cases address only the requirement for
rulemaking in the individual agencies at issue in the cases."

300 Or at 270.

Accordingly, Trebesch requires examination of not only the statutory term in
question but also the scope of the agency's responsibility, the agency's structure for
performing mandated tasks, and any other factor that bears on the legislature's
intent regarding rulemaking. Id.

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written examination requirement"); ORS 672.655 (board
shall "adopt a code of professional conduct"). The fact that the
legislature did not include a similar express rulemaking
requirement in ORS 672.675 with regard to the board's
choice of sanctions provides some indication that it did not so
intend.

Second, as discussed above, the legislature has pro-
vided that the board will use contested case proceedings to
discipline geologists. See ORS 670.325 and ORS 670.304(8)
(requiring the board to conduct contested case proceedings
before suspending or revoking a geologist's certificate of reg-
istration). The legislature's specification of the authorized
range of sanctions available to the board in a contested case
is not ambiguous. Clearly, the legislature envisioned that the
board would select a sanction, if appropriate, from the range
of legislatively authorized sanctions on a case-by-case basis,
and that the board's resulting final order would be subject to
judicial review under ORS 183.482. The board does have the
authority to disclose its criteria for choosing a particular
sanction in advance of a contested case hearing, either by
including that information in its code of professional conduct,
see ORS 672.655, or by other rulemaking. However, by con-
trast to Megdal, we cannot conclude that a disclosure
through advance rulemaking of the board's criteria for choos-
ing a particular sanction is necessary to ensure the fairness
of the contested case or any later judicial review proceedings.
In our view, certificate registrants are able to efficiently con-
duct their professional activities without advance notice by
rule of the board's criteria for selecting sanctions in discipli-
nary proceedings. Those considerations indicate that it is not
likely that the legislature intended in ORS 672.675 to require
prior rulemaking concerning the board's criteria for selecting
a disciplinary sanction.

The requirement of ORS 672.655 that the board pre-
pare and adopt a code of professional conduct does not alter
the foregoing observation. ORS 672.655 contains no explicit
requirement concerning the content of the board's code of
professional conduct. The code of professional conduct that
the board has adopted, OAR 809-020-0001 to 809-020-0030,

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describes several goals for professional geologists (e.g., hon-
esty, integrity, and protection of the public health and wel-
fare), OAR 809-020-0001, several responsibilities of geolo-
gists to the profession of geology, to their employers, and to
the board, OAR chapter 809, division 20, and several forms of
misconduct that may lead to discipline (e.g., engaging in
fraud or misrepresentation), OAR 809-020-0030. However,
the board's code of professional responsibility does not
describe the board's disciplinary process, leaving the details
of that process to other rules. That is a permissible approach;
the code, after all, concerns the "professional conduct" of reg-
istered geologists, ORS 672.655, not the board's disciplinary
responsibilities. ORS 672.655 offers no support to petitioner's
contention that the legislature intended to require the board
to incorporate standards for selecting disciplinary sanctions
into the code of professional responsibility.

Petitioner correctly points out that, in Megdal, 288
Or at 311, this court recognized that "the legislature should
not be assumed to be insensitive to the importance of fair
notice of grounds that may lead to loss of one's profession or
occupation." However, this court also has declined to adopt a
per se rule that the twin aims of fair notice and consistent
application of professional discipline can be accomplished
only by rulemaking, and not by adjudication. Cf. Trebesch,
300 Or at 276 ("Interpretation of statutory terms by orders in
contested cases is an adequate alternative to rules. Both are
capable of achieving a uniform application of the law."). We
assume, of course, that the legislature intended to provide a
petitioner with fair notice of potential discipline. Conse-
quently, one relevant consideration under the Trebesch
analysis is whether the statutory context reveals that the
agency can satisfy fair notice concerns if, in selecting a disci-
plinary sanction, it proceeds by an adjudication rather than
rulemaking.

As noted above, the procedures for disciplining indi-
vidual geologists include built-in safeguards that adequately
alleviate concerns about any lack of fair notice regarding pro-
posed discipline under ORS 672.675. The board must provide
a geologist with advance notice of the proposed disciplinary
action and an opportunity for a hearing to contest both the
truth of the allegations and the correctness of the proposed

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sanction. ORS 672.675 places with the board the primary
responsibility for correct interpretation and consistent appli-
cation of sanctions in disciplinary proceedings. That struc-
tural feature reduces the risk of inconsistent notice proce-
dures or conflicting statutory interpretations that may occur
when multiple agencies or multiple panels of decision-
makers within a single agency carry out that responsibility.
Finally, as the board points out, judicial review under the
APA is designed to guard against arbitrary application of
sanctions by an agency. See ORS 183.482(8)(b)(B) (A court
shall remand an order to an agency if the agency's exercise of
discretion is "[i]nconsistent with an agency rule, an officially
stated agency position, or a prior agency practice, if the
inconsistency is not explained by the agency[.]").

The foregoing discussion leads us to conclude that
the legislature did not intend to require the board to adopt
rules setting criteria for the selection of a particular sanction
listed in ORS 672.675 before it could take disciplinary action
against petitioner in a contested case proceeding. We reject
petitioner's contrary argument.

We turn to petitioner's second argument, which
focuses on the board's rules defining the terms "negligence"
and "gross negligence." As noted above, the board may disci-
pline a registered geologist for "[a]ny negligence, gross negli-
gence, incompetence or misconduct in the practice of geology
*** " ORS 672.675(2) (emphasis added). The board has
promulgated administrative rules that define the empha-
sized terms. OAR 809-003-0000(15) defines "negligence" as
"[f]ailure by a registrant to exercise the care, skill, and
diligence demonstrated by a registrant under similar cir-
cumstances in the community in which the registrant prac-
tices." OAR 809-003-0000(9) defines "gross negligence" as
"[r]eckless and wanton disregard for exercising care and
caution."

Petitioner argues that the board's efforts to define
those terms by rule fall short. Petitioner contends that the
terms "negligence" and "gross negligence" are terms of dele-
gation, such that the board was obligated to complete an
incomplete legislative policy by adopting administrative

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rules or provisions in the code of professional conduct defin-
ing those terms.13 He acknowledges that the board has prom-
ulgated administrative rules defining those terms. Petitioner
argues, however, that the board's rules are insufficient
because they set the standard of care with reference to "the
community in which the registrant practices" without indi-
cating how the board will determine that community stan-
dard of care.14 Petitioner also argues that, in interpreting its
own rules, the board violated a requirement of Megdal by
relying on expert testimony to determine the standard of
"care, skill, and diligence demonstrated by a registrant under
similar circumstances in the community in which the regis-
trant practices," i.e., Marion County.15 The board responds
that the definitions adopted for "negligence" and "gross neg-
ligence" are consistent with the legislature's general intent,
and that expert testimony is an appropriate means to estab-
lish or explain the professional standard of care in the perti-
nent community.

18 In this proceeding, we have no occasion to examine whether the board must
explain other broad statutory grounds for discipline, such as "incompetence," "mis-
conduct in the practice of geology," or the other criteria set out in ORS 672.675,
through additional rulemaking or through the board's code of professional conduct.

14 Petitioner levies the same challenge against each definitional rule. He sug-
gests that both rules should have stated that, in determining the standard of care
in the community in which a registrant practices, the board will consider practices
followed and accepted by persons practicing geology within the county in which the
registrant practices.

15 The parties agree that the relevant community standard for the board's
charges governing negligence in the practice of professional geology is the standard
of conduct that applies in Marion County, which is where the property for which
the hydrogeology reports at issue in this case were prepared. Petitioner argued to
the Court of Appeals that the board failed to establish the standard of professional
practice in Marion County because the board relied on the expert testimony of a
professional geologist, Sprecher, who practiced mainly in central Oregon, but tes-
tified about Marion County's requirements based on his review, at the board's
request, of Marion County zoning ordinances, including hydrogeology guidelines.
Petitioner also asserted that, apart from Sprecher's insufficient testimony, the rec-
ord contained no other evidence of the standard of care in Marion County.

On review, petitioner makes a somewhat different argument. He claims that
the board's rule defining negligence correctly incorporates as an element the stan-
dard of care in "the community in which the registrant practices." OAR 809-003-
0000(15). However, he contends that that rule is insufficient because it lacks a
description of how the board will determine the community standard where the
professional geologist practices, and that no other rule fills in that gap. He also
argues, citing Megdal, that the board's acceptance of Sprecher's expert testimony
amounted to an improper delegation of the board's responsibility to set the perti-
nent standard of care when it enacts its rules before an adjudication.

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In evaluating the merits of the parties' arguments,
we must bear in mind the standard of review that governs
our examination of the board's rules. The parties differ about
whether the court may categorize the grounds of "negligence"
and "gross negligence" as exact terms, inexact terms, or
terms of delegation. Each type of term "conveys to the agency
a different range of responsibility for definition." Ross v.
Springfield School Dist. No. 19, 294 Or 357, 367 n 7, 657 P2d
188 (1982). Both exact terms and inexact terms are complete
expressions of legislative policy. Id. As to exact terms, the
agency's task is to apply the term to the facts of the case; as to
inexact terms, the agency's task is to interpret the meaning
of the term within the completed policy expressed by the leg-
islature. Springfield Education Assn. v. School Dist., 290 Or
217, 224-26, 621 P2d 547 (1980). By contrast, terms of dele-
gation are "non-completed legislation which the agency is
given delegated authority to complete." Id. at 228.

The board contends that the statutory terms "negli-
gence" and "gross negligence" are inexact terms because they
represent complete expressions of legislative policy, but
require the agency to engage in interpretation to determine
whether actions taken by a registered geologist in a particu-
lar case fall within the statutory meaning of the terms. The
board argues that it was free to interpret those terms either
by rulemaking or adjudication. Id. at 226 ("An agency may
express its determination of which interpretation effectuates
the [completed] statutory policy either by rule or * * * by
order in a contested case."). The board also points out that, in
Ross, 294 Or at 368-69, this court, addressing a similar issue,
concluded that a contested case final order was a suitable
vehicle for the interpretation of the statutory standard of
"immorality" in connection with the dismissal of a permanent
teacher:

"The statute places primary interpretive responsibility
with the [Fair Dismissal Appeals Board]. When applying
terms of complete legislative expression, an agency may
interpret statutory standards either by an interpretive rule
or by order in a contested case. Springfield, supra, 290 Or at
226. The FDAB has chosen to interpret immorality by
means of an order in this case. No requirement for prior
rulemaking exists."

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We review the board rules defining statutory
grounds for discipline for an error of law under ORS
183.482(8)(a).16 The dispositive inquiry is whether the
agency's rules are consistent with legislative intent. Coast
Security Mortgage Corp. v. Real Estate Agency, 331 Or 348,
353, 15 P3d 29 (2000). In analyzing the text and context of a
statute, we apply the well-defined legal meanings of legal
terms. Norden v. Water Resources Dept., 329 Or 641, 645, 996
P2d 958 (2000). When an agency interprets its own rules, we
defer to that interpretation if it is "plausible and not inconsis-
tent with the rule, the rule's context, or any other source of
law." Friends of Columbia Gorge v. Columbia River, 346 Or
366, 410, 213 P3d 1164 (2009).

It is important to understand the specific focus of
petitioner's argument. Petitioner acknowledges, as he must,
that the board did promulgate rules that interpreted the stat-
utory terms "negligence" and "gross negligence." He asserts
that the board's definitional rules are incomplete and, there-
fore, are legally erroneous, because they incorporated a
familiar element-the standard of care in the professional
geologist's community-but failed to designate specifically
how the board would determine and apply the community
standard in each case. As we explain below, we disagree. In
this context, the community standard element of negligence
may differ from place to place and, ordinarily, is determined
by courts and other tribunals on a case-by-case basis, fre-
quently with the aid of expert testimony. Consequently, we
cannot attribute to the legislature an intent to require the
board to specify by rule, in advance of adjudication, how it
will determine the community standard of care in every case.

In the professional negligence context, this court has
recognized that "the standard of care is that of a reasonably
prudent, careful and skillful practitioner of that discipline in

16 ORS 183.482(8)(a) provides that

"The court may affirm, reverse, or remand the [agency's] order. If the court
finds that the agency has erroneously interpreted a provision of law and that a
correct interpretation compels a particular action, the court shall:

"(A) Set aside or modify the order; or

"(B) Remand the case to the agency for further action under a correct
interpretation of the provision of law."

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the community or a similar community under the same or
similar circumstances." Creasey v. Hogan, 292 Or 154, 163,
637 P2d 114 (1981) (footnote omitted) (malpractice claim
against podiatrist); see also Getchell v. Mansfield, 260 Or 174,
179, 489 P2d 953 (1971) (recognizing that a professional acts
negligently by failing to follow "the reasonable practice * * *
in the community"). Whether professional "negligence" rises
to the level of "gross negligence" is a question of degree.
"Gross negligence is the equivalent of reckless disregard and
is negligence of a substantially greater degree than that of
ordinary negligence." Fassett v. Santiam Loggers, Inc., 267
Or 505, 508, 517 P2d 1059 (1973). Fairly read, the board's
rule-based formulations of "negligence" and "gross negli-
gence" incorporate all or most of the well-established legal
meanings of those terms, and give adequate notice of the sort
of conduct that will lead to discipline by the board.

The foregoing conclusion aids in our analysis of
whether the board's definitional rules reflect an error of law,
but it does not squarely answer a remaining aspect of peti-
tioner's challenge. Petitioner contends that the board erred
by determining the meaning of the "pertinent community"
element of negligence and, thus, the range of actions required
by due care in this case, by considering expert testimony
about the practice of geology in Marion County. The board's
final order on reconsideration contained the following discus-
sion of the 'pertinent community' in this case:

"[W]e first must determine the standard of care in the
community at issue here: Marion County.

"[I]t is beyond the authority of Marion County * * * to
establish standards for the practice of geology. * ** * The
legislature has specifically given that power to this Board.
\* \* Although the Board certainly has the power to estab-
lish statewide standards of care, as to which a registrant's
failure to comply constitutes 'negligence,' the Board instead
has defined 'negligence' with reference to the standard of
care exercised in the pertinent 'community.' Consequently,
there is no applicable 'board standard' here. Rather, the
standard is established by expert testimony on a case-by-
case basis."

Final Order on Reconsideration at 8 (citation omitted).

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Petitioner argues that the board's determination of
the "pertinent community" is inconsistent with the Megdal
principle that a professional licensing board may not rely on
expert testimony to determine the pertinent standard of care.
In Megdal, the court held that the Board of Dental Examiners
was required to make rules identifying ethical standards of
professional conduct and could not rely on testimony of
experts about how to formulate such standards. However,
that determination stemmed from the court's conclusion
that, by using the broad delegative phrase "unprofessional
conduct," the legislature had required the Board of Dental
Examiners to identify the ethical standards of the dental pro-
fession through administrative rules.

Unlike in Megdal, the board here did promulgate
rules that accurately defined "negligence" and "gross negli-
gence" before applying those terms during this adjudication.
As noted, in disputes involving claims of professional negli-
gence, parties routinely depend on expert testimony to estab-
lish the standard of reasonable care in the applicable com-
munity because, ordinarily, the factfinder otherwise would
be unable to determine whether the conduct in question
failed to satisfy the required standard of care. Getchell, 260
Or at 179; see also Spray v. Bd. of Medical Examiners, 50 Or
App 311, 318, 320-21, 624 P2d 125 (1981) (implicit in the stat-
utory standard of "inappropriate or unnecessary medical
treatment" is the assumption that expert testimony may be
used to "determine the standards of treatment that would be
adhered to by the members of the medical community in any
given case" because, for such a standard, "adoption of precise
pre-decisional criteria" is not a feasible).

The foregoing discussion leads us to conclude that
petitioner's reliance on Megdal is misplaced. The court's con-
cern in that case-an agency's reliance, without prior rule-
making, on expert testimony to supply the meaning of a stat-
utory ground for professional discipline-is not present here.
In this case, the board's task consisted of applying the legis-
lature's criteria for professional discipline, embodied in the
standards of "negligence" and "gross negligence," and the
board's administrative rules that accurately defined those
terms. Consistent with the familiar legal meaning of profes-
sional negligence, the board's standard took into account any

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distinctive elements of the practice of professional geology in
the pertinent community. The board's consideration of expert
testimony to explain that practice in the local community
and, therefore, to apply the statutory disciplinary criteria
and rule-based definitions, did not constitute an error of law.

As his final challenge to the board's order, petitioner
submits that the board's findings regarding the pertinent
standards of care are not supported by "substantial reason."
Under ORS 183.470(2), an agency's order must contain find-
ings of fact and conclusions of law. Because the order is the
"instrument by which an agency demonstrates that a partic-
ular interpretation or application of a statute is within a gen-
erally expressed legislative policy," the agency's findings of
facts and conclusions of law must be supported by "substan-
tial reason." Springfield Education Assn., 290 Or at 227. In
Ross, the court explained that

"[i]t is essential that an agency articulate in a contested
case the rational connection between the facts and the legal
conclusion it draws from them. This is required both for
purposes of meaningful judicial review and to ensure that
the agency gives responsible attention to its application of
the statute."

294 Or at 370 (citations omitted).

Petitioner contends that the board's order is not sup-
ported by substantial reason because it does not specify the
evidence on which the board relied to determine the relevant
standards of care. Petitioner is mistaken. For each allegation
of negligence or gross negligence against petitioner, the order
describes relevant evidence presented at the hearing and,
furthermore, connects the board's findings of fact based on
that evidence with the pertinent conclusions of law that sup-
port the board's order. For each conclusion indicating that
petitioner had violated the pertinent standard of care, the
order rationally explains how the findings of fact support
the conclusion. Our review indicates that the board's order
exhibits the "substantial reason" that this court required in
Springfield Education Assn. and Ross.

The decision of the Court of Appeals and the order of
the Board of Geologist Examiners are affirmed.