dissenting.
The majority allows the FDAB to avoid a difficult question: must the agency follow the law? I believe it should and, therefore, respectfully dissent.
On appeal, petitioner’s primary argument is this:
“The procedures contained in ORS 342.895 focus on giving the affected teacher two categories of information: (1) the nature of the action that the school district is taking or has taken, along with the reasons therefore; and (2) notice of the teacher’s rights under the law, including the very short ten day timeline for appeal. When the requirements of ORS 342.905 are followed, a teacher has at least 30 days to pursue a FDAB appeal, as well as the statutory explanation of how to do so.” (Emphasis added.)
The majority focuses on the sufficiency of actual notice to petitioner, overlooking the fact that an explanation of the appeals process and appellant’s rights, in addition to notice of dismissal, must be conveyed in order to comport with the statute. The omission of this critical element from the analysis of both the FDAB and the majority renders a portion of ORS 342.895 a nullity.
ORS 342.895 (1995) established school district procedures for nonrenewal of teaching contracts and dismissing contract teachers, as well as the processes for teachers to appeal those decisions. Section (2) of that statute read, in part:
“At least 20 days before recommending to a board the dismissal of the permanent teacher, the district superintendent shall give written notice to the permanent teacher by certified mail or delivered in person of the intention to make a recommendation to dismiss the teacher. The notice shall set forth the statutory grounds upon which the superintendent believes such dismissal is justified, and shall contain a plain and concise statement of the facts relied on to support the statutory grounds for dismissal. * * * Notice shall also be sent to the district school board and to the Fair Dismissal Appeals Board. A copy of ORS 342.805 to [ORS] 342.934 shall also be sent to the permanent teacher.” (Emphasis added.)
*28In this context, notice of a permanent teacher’s dismissal is more than a termination notice. It conveys the factual reasons for dismissal, the statutory underpinnings of the action and, most importantly, places a procedural road map in the hands of prospective appellants by providing them with a copy of applicable law. In deciding that actual notice is the lone sine qua non of appealability in this case, the majority renders impotent the explanatory component of ORS 342.895(2).1 The legislature has declared that notice of a permanent teacher’s dismissal must also inform the prospective appellant of the applicable law.2 In construing that statute, we may not omit what the legislature has inserted. ORS 174.010. The majority errs by ignoring that requirement.
The majority emphasizes the great consistency with which the FDAB has decided this issue in the past. It is true that the FDAB has consistently found these statutory provisions to be of no consequence when, in its opinion, a petitioner has received actual notice of his or her dismissal. Agency consistency, however, is a factor only when we review an agency’s action for abuse of discretion. ORS 183.482(8)(b)(B). Here, as the majority has already noted, our review is for errors of law. Taken in that light, this case, viewed together with the FDAB’s similar decisions in the past, stands only for the proposition that the agency has gotten it wrong — again. Regarding matters of law, consistency cannot substitute for correctness.
*29The majority also invokes Zollinger v. Warner, 286 Or 19, 32, 593 P2d 1107 (1979), apparently for the proposition that the Supreme Court has conferred some special mandate on the FDAB’s construction of the statutes relevant here and to which, if we are smart, we should defer. 162 Or App at 25-26. Zollinger was a case where a school board unsuccessfully attempted to circumvent the FDAB and appeal a decision directly to this court. To the extent that the majority’s interpretation of Zollinger stands for anything beyond the fact that the FDAB gets a chance to construe statutory language before its decision comes to this court for review, I respectfully disagree.
In sum, I believe the FDAB has avoided the hard procedural questions it was created to address and misinterpreted the Fair Dismissal Law in the process. For those reasons, I dissent.
Edmonds and Armstrong, JJ., join in this dissent.At times however, even actual notice can be insufficient. In Jordan v. Wiser, 302 Or 50, 58, 726 P2d 365 (1986), the Oregon Supreme Court held that in civil actions, actual notice of a complaint and summons was not enough to grant jurisdiction over a controversy when the service on a defendant was not made by an authorized agent of the plaintiff. A summons, the court declared, must be both served and returned in order to comport with ORCP requirement that parties be reasonably apprised of the existence and pendency of actions against them. In the case before us now, like Jordan, the law similarly requires more than actual notice; it requires that dismissed teachers receive a copy of their statutory appeal rights.
There are circumstances where actual notice may be sufficient. For example, a school board might give a teacher written notice of a dismissal but fail to include a copy of ORS 342.805 to ORS 342.934. The next day, however, a superintendent hands the teacher a copy of the statutes. While such notice would not comply with the requirements of ORS 342.895(2) (1995), the FDAB could conclude that the teacher had sufficient actual notice of the statutory requirements such that the 10-day time to appeal would run from the receipt of a copy of the statute. There is no evidence in this record that petitioner ever received a copy of the pertinent statutes.