Johnson v. Employment Dept.

FILED: December 10, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

TOM JOHNSON,

Petitioner,

           v.

EMPLOYMENT DEPARTMENT
and DESCHUTES COUNTY,

Respondents.

02-AB-0196; A117522

           Judicial Review from Employment Appeals Board.

On respondent Employment Department's petition for reconsideration filed September 24, 2003. Opinion filed August 13, 2003. 189 Or App 243, 74 P3d 1159.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Assistant Attorney General, for petition.

Roxanne L. Farra, P. C., contra.

Before Edmonds, Presiding Judge, and Brewer and Schuman, Judges.

           SCHUMAN, J.

Reconsideration allowed; former opinion modified and adhered to as modified.

                      SCHUMAN, J.

                      In Johnson v. Employment Department, 189 Or App 243, 74 P3d 1159 (2003), we reversed the Employment Appeals Board's (EAB) determination that claimant's one-time failure to pay a $10 delivery charge for wood that he bought from his employer was neither an isolated incident of poor judgment nor the result of a good faith error. In disposing of the case, we held:

"The task of interpreting the term ['isolated incident of poor judgment or a good faith error,' OAR 471-030-0038(3)(a)] is not ours but the [Employment Department's]. We therefore remand * * * to EAB, this time with instructions that EAB should remand to the ALJ, as authorized by OAR 471-041-100(1). The ALJ, in turn, should remand to the department for reconsideration. OAR 471-040-0025(8)."

Johnson, 189 Or App at 249-50 (citation omitted). The Employment Department (the department), which waived appearance before this court, now asks for reconsideration of our disposition, arguing that we should not have imposed a single, precise method for EAB to use in ascertaining the department's interpretation of the statutory term. The department's point is well taken. We therefore revise our disposition of the case as follows: We remand to EAB with instructions that EAB should ascertain the department's interpretation of the statutory term at issue in this case using any lawful means to do so.

                      Reconsideration allowed; former opinion modified and adhered to as modified.