specially concurring.
I concur in the result but for different reasons.
While I am in agreement with much of the majority opinion, I must disagree with its reasoning in some respects. In addition, I consider it incomplete in that it does not deal with several key issues presented in plaintiffs assignments of error. The majority seems to be saying that this is unnecessary because plaintiff admitted the acts charged. This conclusion simply does not follow in my view. This is readily apparent, I believe, from a reading of plaintiffs assignments of error.
These are matters of considerable public importance and affect a number of public employes. In order to properly decide this case, as well as settle these issues for the future, this court should resolve the following questions:
(1) Was plaintiff denied "constitutional protections relating to continued employment” because under § 4-112 of the Charter of the City of Portland he was never afforded a "de novo administrative review of the *745facts, an impartial tribunal reviewing of the facts, and * * * findings of fact and conclusions of law prior to termination”?
(2) Were the procedures for dismissal provided by § 4-112 of the charter unconstitutional because of (a) the lack of a de novo administrative hearing by an impartial tribunal and (b) the limitation placed on the scope of administrative review?1
(3) Was employer’s interpretation of the rules reasonable and in good faith?
As I see it the hearing before the chief of police was a pretermination hearing and substantially met the minimum standards of due process subsequently announced in Tupper v. Fairview Hospital, 276 Or 657, 556 P2d 1340 (1976). I cannot agree, however, that it also constituted a full scale, evidentiary post-termination hearing as that term was referred to and used in Tupper. See also, Arnett v. Kennedy, 416 US 134, 94 S Ct 1633, 40 L Ed 2d 15 (1974); Papadopoulos v. Bd. of Higher Ed., 14 Or App 130, 511 P2d 854, Sup Ct review denied (1973), cert denied417 US 919 (1974); Gunsolley v. Bushby, 19 Or App 884, 529 P2d 950 (1974).
In short, it is my conclusion that the above questions should be answered by this court and that the answers should be as follows:
(1) No;
(2) No; and
(3) Yes.
Summarizing, I would hold, in addition to the majority’s reasons, that § 4-112 is constitutional as indicated above; plaintiff’s conduct constituted violations of the rules relating to (a) acceptance of gifts and *746Ob) release of confidential information; there was substantial evidence in the record from which the chief of police could reasonably conclude that plaintiff violated the two rules in question; and plaintiff’s dismissal was valid and according to constitutionally adequate procedures.
Where, as here, there is no dispute as to the facts, we need not consider plaintiffs contention that § 4-112 of the Charter of the City of Portland is also unconstitutional in that it places the burden of proof of wrongful dismissal on the discharged employe. Where the facts are not in dispute the burden of proof becomes immaterial.