Mull v. Oregon Institute of Technology

538 P.2d 87 (1975)

Russell MULL, Petitioner, v. OREGON INSTITUTE OF TECHNOLOGY, and W.D. Purvine, President, Respondents.

Court of Appeals of Oregon.

Argued and Submitted May 22, 1975.

Decided July 14, 1975.

*88 Richard J. Smith, Klamath Falls, argued the cause for appellant. With him on the brief were Smith & Lee, Klamath Falls.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

THORNTON, Judge.

Petitioner, a student at Oregon Institute of Technology, seeks judicial review of an order of OIT suspending him for alleged misconduct and withholding his grades earned during spring term 1974.

Petitioner makes three assignments of error: (1) OIT failed to give him adequate notice with respect to two of the incidents charged; (2) OIT failed to follow its own procedure in that the College Discipline Commission failed to refer its decision to the President of OIT before notifying petitioner of his suspension; and (3) the order suspending petitioner was not supported by reliable, probative and substantial evidence in the whole record.

Petitioner was charged with using obscene language, violating college rules, threatening other students and fighting in the dormitory. A hearing was held before the College Discipline Commission at which time witnesses were called and evidence taken. On May 8, 1974, the commission notified petitioner that it had considered the charges and evidence, and ordered him suspended. Petitioner appealed the decision in succession to the Appeal Hearing Commission and the President of OIT. Both affirmed the decision of the discipline commission.

As to petitioner's assignments of error one and three we cannot review because we do not have before us a proper final order. A final order by an agency in a contested case, ORS 183.310(1) and (2), must be accompanied by findings of fact and conclusions of law. ORS 183.470. Furthermore ORS 183.470 requires:

"* * * The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency's order. * * *"

The order before us lacks the findings of fact and conclusions of law required by statute. We remand this case with instructions to make an order accompanied by findings of fact and conclusions of law. In view of this action it is unnecessary to consider petitioner's other assignment.

Remanded with instructions.