dissenting.
For the following reasons, I dissent.
*371First: After construing ORS 342.905(5) the majority misapplies it to the FDAB orders.
Second: The majority errs in holding that a Teacher Standards and Practices Commission (TSPC) order declining to order a hearing on a complaint for revocation of petitioner’s teaching certificate bars the FDAB from considering the gross unfitness charge.
Third: Petitioner has never claimed that the FDAB is barred from considering the gross unfitness claim because of the TSPC order. The majority errs in considering and deciding an important question which has not been raised by any party before the school board, the FDAB, the Court of Appeals, or this court, and which has not been briefed, argued or considered by anyone other than this court.
THE MAJORITY HAS MISAPPLIED THE RULE STATED IN ITS OWN OPINION
Although I largely agree with the majority’s construction of the statute, I do not agree with its application of the statute to the order involved in this case. ORS 342.905(5) provides:
“When the Fair Dismissal Appeals Board panel has completed its hearing, it shall prepare a written report and send it to the permanent teacher, the district superintendent, the district school board and the Superintendent of Public Instruction. The Fair Dismissal Appeals Board panel shall determine whether the facts relied upon to support the statutory grounds cited for dismissal are true and substantiated. If the panel finds these facts true and substantiated, it shall then consider whether such facts, in light of all the circumstances and additional facts developed at the hearing that are relevant to the statutory standards in ORS 342.865(1), are adequate to justify the statutory grounds cited. In making such determination, the panel shall consider all reasonable written rules, policies and standards of performance adopted by the school district board unless it finds that such rules, policies and standards have been so inconsistently applied as to amount to arbitrariness. * * *”
I perceive that the majority holds:
1. The statute first requires that FDAB determine whether the facts upon which the district based its *372dismissal are “true and substantiated.” This is a species of fact finding. Here, there is no dispute on the facts.
2. FDAB then makes a legal determination: Are • the relevant facts “adequate to justify the statutory grounds cited”?
3. Finally, FDAB decides whether dismissal is unreasonable, arbitrary, or excessive.
FDAB does not itself decide whether dismissal is to be ordered. That is the district’s decision, and FDAB’s function, once it determines the facts, is in the nature of an appellate tribunal.
FDAB upheld the dismissal. The majority, citing Megdal v. Board of Dental Examiners, 288 Or 293, 605 P2d 273 (1980), remands stating:
«* * * Because there is no rationale to support the conclusion that petitioner’s conduct was immoral dismissal on this ground is remanded to the FDAB for a determination of whether the facts as to immorality are adequate to justify the statutory grounds.” 294 Or at 370.
Remand is not necessary. Even under Megdal, the FDAB orders are sufficient.
Megdal involved a dentist whose license was revoked by the State Board of Dental Examiners for “unprofessional conduct.” On appeal we held that although the term “unprofessional conduct” was not unconstitutionally vague, 288 Or at 303, the order of revocation must nonetheless be reversed because “the term [‘unprofessional conduct’] cannot be applied without prior rulemaking [by the agency].” 288 Or at 305.
We pointed out that legislatively created licensing standards fell within three categories:
Class 1: “* * * [N]orms of conduct that are uniformly or widely recognized in the particular profession or occupation, apart from the views of the agency itself * * *. [I]ts application would depend not on interpreting the law or making rules but on finding what the existing standards in fact are.” 288 Or at 304.
Class 2: Standards expressed in general terms, to be “interpreted” by the agency, without rules, and judicial review for consistency with legislative policy.
*373Class 3: Standards requiring the promulgation of rules. Without prior rulemaking, the standards cannot be applied. 288 Or at 305.
See footnote 7 of the majority opinion.
Megdal held that the term “unprofessional conduct” fell within the third category, and because the agency had not promulgated rules, “there was no legal ground to revoke his license.” 288 Or at 321. The majority in the case at bar concludes that the term “immorality” falls within the second category and remands for the agency to enter a further order.
In a sense, the majority is trying to squeeze this case into a Megdal mold when it is not, strictly speaking, a Megdal case. In struggling to make this into a clean Megdal case, the majority makes several errors.
In Megdal, the agency charged with making the license revocation decision was the Board of Dental Examiners. In the case at bar, the agency charged with making the dismissal decision is the school district. FDAB does not occupy the same position as did the Board of Dental Examiners. It is, in a sense, an appellate tribunal charged with determining facts and then deciding whether the action of another agency, based upon those facts, is permissible and whether dismissal is unreasonable, arbitrary or excessive.
With respect to a Class 2 case, we stated in Springfield Education Assn v. School Dist., 290 Or 217, 227-28, 621 P2d 547 (1980):
“The dispositive question of law on review, under this section, is whether the agency action is within the legislative policy which inheres in the statutory term. An agency interpretation may be given an appropriate degree of assumptive validity if the agency was involved in the legislative process or if we infer that it has expertise based upon qualifications of its personnel or because of its experience in the application of the statute to varying facts. Judicial deference, however, is not automatic or unreasoning. If a statute must be interpreted to determine its applicability to the facts of a contested case, then, it is necessary for the agency to express in its order, to the degree appropriate to the magnitude or complexity of the contested case, its reasoning demonstrating the tendency of the order to advance the policy embodied in the words of *374the statute. Explicit reasoning will enable the court on judicial review to give an appropriate degree of credence to the agency interpretation. * * *” 290 Or at 227-28.
The FDAB consists of 20 members: five permanent teachers; five school administrators; five school board members; and five public members. I would defer to their expertise.
I believe that the FDAB orders sufficiently state the rationale underlying the conclusion to uphold the dismissal for gross unfitness and immorality. The majority orders remand “for a determination of whether the facts as to immorality are adequate to justify the statutory grounds.” 294 Or at 370. FDAB has already done that.
There are two FDAB orders. We must first examine the orders to see what findings and conclusions the FDAB made. I will briefly summarize them. These quotations are from the first FDAB orders.
“* * * ross was employed as librarian in both Camp Creek and Mohawk Schools. * * *
i(* ‡ ‡ ‡ ‡
“Camp Creek and Mohawk are small rural communities about ten (10) miles from the administration building located in Springfield. Camp Creek had an enrollment range of ninety (90) to one hundred twenty (120) students. Mohawk had an enrollment range of one hundred thirty (130) to one hundred fifty-five (155) students. * * *.
ff* * * * *
“A police officer with the Eugene Police Department, assigned to the criminal intelligence section, made the following observations between January 3, 1979 and January 18, 1979 [at the Adult World Book Store in Eugene]:
[The report then describes, in express detail unnecessary to set forth in this opinion, the sexual acts which were observed at the Adult World Book Store and the specific sexual conduct of petitioner and another man at the store.]
“When Ross returned to his librarian position in the schools in June of 1979, the principal of Camp Creek and Mohawk schools received ten (10) to twelve (12) telephone calls from parents during the first week. The personnel director of the school district received twenty some phone *375calls. The calls complained of Ross being a teacher in the school district.
“The principal and school district received thirty-one (31) written letters from parents objecting to continuing Ross as a teacher in their community.”
I shall not repeat the findings that are quoted in the majority opinion. The FDAB order also contains several pages of “Discussion” relating to immorality and unfitness which contain the FDAB analysis and additional statements of fact.
“Ross was involved in acts of sexual deviation. The communities where he taught became aware of his conduct. Parents in the communities did not want their children being taught by Ross because of his known life-style.
a* * * * *
“Ross voluntarily chose his lifestyle. He practiced his lifestyle in the general community where he taught. His lifestyle included acts of deviate sexual intercourse in a public place. Ross knew or should have known that his lifestyle would not be acceptable to the parents and school district. He knew or should have known that upon discovery of his lifestyle and the notoriety given to such a lifestyle, he would be ineffective as a teacher, thus rendering him grossly unfit to teach. (Emphasis added.)
<<* * * * *
“Ross was involved in acts of deviate sexual intercourse in a public place. He is not charged with being a homosexual. He is charged with immorality. The admitted acts of Ross at Adult World were acts of deviate sexual intercourse. Whatever else ‘immorality’ may include, it certainly includes acts of deviate sexual intercourse as such acts are contrary to the statutes of Oregon. (Emphasis added.)
<<£ ijt * * *
“This panel concludes that based upon the evidence presented, the facts were true and substantiated. * * * The Board was justified in dismissing Ross on the grounds of immorality and gross unfitness. Both grounds were proven. Either ground will support the dismissal action by the Board. * * *” (Emphasis added.)
Because of the FDAB conclusion that the petitioner’s conduct was “contrary to the statutes of Oregon,” petitioner filed a petition for reconsideration with FDAB in *376which he argued that no criminal statutes had been violated. Thereafter, FDAB entered this further order denying the petition for reconsideration, stating in part:
“Petitioner Frank Ross petitioned the Fair Dismissal Appeals Board for rehearing and reconsideration.
“Upon consideration of the petition, the panel concludes that said petition should be denied for two reasons.
“1) The issue was not whether the petitioner was guilty of criminal conduct.” (Emphasis added.)
I disagree with the majority’s conclusion that “there is no rationale to support the conclusion that petitioner’s conduct was immoral.” On the contrary, it is clear that the reason for the school board dismissal and the FDAB orders was their belief that the petitioner engaged in sexual acts — anal intercourse — in a store open to the public, and that because of widespread newspaper publicity concerning the Adult World Bookstore and because of knowledge of persons in the Mohawk and Camp Creek communities, petitioner “could not have an effective relationship with students or parents.” The decision is not ours to make. It is either for the school board or FDAB. There is substantial evidence to support the decisions. I am hard put to hypothesize how, on remand, FDAB can say it more clearly than it already has.
The FDAB orders contain several references to the term “deviate sexual intercourse.” The orders do not define the term nor do they refer to the definition contained in ORS 163.305(1):
“(1) ‘Deviate sexual intercourse’ means sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.”
There is no question that petitioner was involved in a form of deviate sexual intercourse, as that term is defined in ORS 163.305(1). Whether or not the FDAB had that definition in mind is not clear. I read the FDAB orders to say that petitioner’s conduct constituted deviate sexual intercourse and that that was, under the circumstances, immoral.
The FDAB took pains to point out that petitioner was not charged with being a homosexual, and he was not *377charged with any kind of sexual conduct occurring in his own home. The repeated FDAB references to deviate sexual intercourse convinces me that FDAB likely had a definition similar to the ORS 163.305(1) definition in mind, and that because the events occurred in a store open to the public, the conduct constituted “immorality.”1
The FDAB order sets forth the rationale for its determination that petitioner’s conduct constituted immorality. For that reason alone, I would affirm.
THE MAJORITY ERRS IN HOLDING THAT BECAUSE THE TEACHER STANDARDS AND PRACTICES COMMISSION DISMISSED A COMPLAINT FOR LACK OF PROBABLE CAUSE TO HOLD A HEARING, ITS DETERMINATION BARS FDAB FROM CONCLUDING THAT THE PETITIONER WAS GROSSLY UNFIT
Following this incident, the Springfield District superintendent filed a complaint with the Teacher Standards and Practices Commission (TSPC) seeking revocation of petitioner’s teaching certificate for gross unfitness.2 TSPC conducted a preliminary investigation. The minutes of its May 17, 1979, meeting contain this entry:
“RESOLVED, That after completing the preliminary investigation on the complaint of Superintendent Springfield School District dated March 27, 1979, the Commission finds a lack of probable grounds for action against the teacher under ORS 342.175-342.177 and therefore dismisses the matter.”
The majority holds: “Where the Commission has determined that a particular set of facts does not constitute grounds for revocation neither the school board nor the FDAB may reach a different interpretation.” 294 Or at 367. The majority errs on this point, as well. Professor Davis has written:
“* * * [A]s a matter of principle, it is completely clear that the reasons behind the doctrine of res judicata [by which Professor Davis means both collateral estoppel and res judicata] as developed in the court system are fully *378applicable to some administrative proceedings. The reasons against a second litigation between the same parties of the same claims or issues are precisely the same for some administrative determinations as they are for most judicial determinations. The sound view is therefore to use the doctrine of res judicata when the reasons for it are present in full force, to modify it when modification is needed, and to reject it when the reasons against it outweigh those in its favor.” 2 K. Davis, Administrative Law Treatise § 18.02, at 548 (1958).
See also Shannon v. Moffett, 43 Or App 723, 604 P2d 407 (1979); Oregon City Fed. of Teachers v. OCEA, 36 Or App 27, 584 P2d 303 (1978) (Tanzer, J.) (recognizing the doctrine of collateral estoppel in agency proceedings).
A prerequisite to the application of the doctrine of collateral estoppel is the presence of a “full and fair opportunity to contest the issue in the first action.” State Farm v. Century Home, 275 Or 97, 550 P2d 1185 (1976). An examination of the TSPC proceeding shows that the school board had no “full and fair opportunity” to contest the issue of “gross unfitness” in the TSPC proceeding. TSPC decided, after a nonadversary preliminary investigation and a meeting in executive session, that it would dismiss the complaint made by the school board and hold no hearing under ORS 342.177. The school board was not given an opportunity to be represented by counsel and had no opportunity to present evidence in an adjudicatory setting by calling, examining or cross-examining witnesses or presenting other evidence.
Before the school board can be collaterally estopped from litigating the issue of “gross unfitness,” that issue must have been adjudicated. As Professor Davis writes, “In name and tradition ‘res judicata’ means thing adjudicated. Only what is adjudicated can be res judicata. Administrative action other than adjudication cannot be res judicata.” 2 K Davis, Administrative Law Treatise § 18.08, at 597 (1958). The TSPC action here was not adjudicative. It was investigatory and should have no effect upon this dismissal proceeding.
The person asserting collateral estoppel has the burden of asserting the defense and proving its applicability. State Farm v. Century Home, 275 Or 97, 104, *379550 P2d 1185 (1976). This rule applies as well in administrative law proceedings. Mogel, Res Judicata and Collateral Estoppel in Administrative Proceedings, 30 Baylor L Rev 462, 463 n 11 (1978).
The majority may say that collateral estoppel and res judicata are not involved. The majority does say that FDAB is barred from considering the gross unfitness charge because the TSPC decision interprets the statute and that FDAB cannot engage “in a more restrictive interpretation of that term than that rendered by the Commission.” Majority opinion at 367. I believe that the reasons which underlie the principle of collateral estoppel still apply. The “set of facts” which were before the TSPC, whether for interpretation or decision, are not the same as those before the FDAB (or at least, there has been no adjudication by FDAB that they were or were not), and TSPC has made no adjudication. Even conceding that TSPC alone can interpret ORS 342.865(1)(i), I would hold that its refusal to order a hearing has no more effect, for rule making or adjudicative purposes or collateral estoppel purposes, than a grand jury returning a “not true” bill.
In a very real sense, the majority’s decision on this point represents the ultimate anomaly. Although the FDAB orders are replete with facts to support its conclusions that the petitioner was properly dismissed for gross unfitness or immorality, the majority remands the immorality charge because the FDAB orders contain “no other rationale.” Yet, the majority gives full adjudicative effect to a TSPC order which contains no findings, no conclusions, no analysis, no rationale, which was not entered after a hearing, and as to which the school district had no opportunity to be heard or present evidence.
TSPC is in the same relative position as was the Board of Dental Examiners in Megdal. I suspect that this court would hold that the term “gross unfitness” is either a Class 2 or Class 3 term. If Megdal and Springfield Education Assn are to have validity, we should apply the rationale underlying those decisions to the TSPC order of dismissal. We should give no effect to the TSPC order.
*380THIS COURT SHOULD NOT CONSIDER AN ISSUE WHICH HAS NEVER BEEN RAISED BY ANY PARTY OR CONSIDERED BY ANY OTHER COURT OR AGENCY
I confess to particular dismay with the majority’s holding that the TSPC determination on the “gross unfitness” claim bars FDAB consideration. I can find nothing in the record or briefs indicating that the issue was ever raised by the petitioner, much less considered by the FDAB or by the Court of Appeals. Had the question been raised, it is likely that evidence would have been presented and a decision made on the question. We should not consider the issue at all.
In summary, I would affirm the Court of Appeals and FDAB because the FDAB found that the facts that the school board “relied upon to support the statutory grounds cited for dismissal were true and substantiated,” determined that the facts “are adequate to justify the statutory grounds cited,” and in addition, the FDAB independently found that petitioner’s conduct constituted “immorality” which affected his ability to teach in the community. Even under the majority’s analysis, the decisions of the FDAB and Court of Appeals should be affirmed. We need not decide the question whether petitioner’s dismissal for gross unfitness was correct because of the FDAB finding of immorality.
Campbell and Carson, JJ., join in this dissent.Compare the dissenting opinion, texts and authorities cited in the dissenting opinion of Tobriner, J., in Pettit v. State Board of Education, 109 Cal Rptr 665, 513 P2d 889, 894-899 (1973). See also Comment, 61 Cal L Rev 1442 (1973).
See footnote 1 of the majority opinion.