dissenting.
The law that emerges from the majority’s surgery is very different from the law that the legislature enacted. The provisions for the Employment Relations Board’s review of personnel disciplinary actions, as actually enacted, state the following:
ERB is to review any personnel action alleged to be "arbitrary or contrary to law or rule,1 or taken for political reasons.” If it finds the allegation to be correct, it shall "set aside” the action. ORS 240.086(2).
Upon an appeal by an employee, ORS 240.560 prescribes two dispositions, depending on the reasons *602for the appointing agency’s action.2 If ERB finds that the reason was a forbidden discrimination, the employee must be reinstated without loss of pay. ORS 240.560(3). Similarly, if ERB finds that the action appealed from was not taken in good faith for cause, the employee must be reinstated without loss of pay. ORS 240.560(4). But this subsection assigns ERB a second function even when the action was taken in good faith for cause: "The board in lieu of affirming the action, may modify it” by selecting a different penalty. Id.
It is difficult to see how this last sentence could be misconstrued. ERB is not authorized to "modify” a personnel action when it finds it to be "arbitrary or contrary to law or rule” within the meaning of ORS 240.086(2). It must set it aside, as that section plainly states. ERB is authorized to modify an action only "in lieu of affirming the action,” i.e. when the action might properly be affirmed. It garbles these sections to say that ERB may modify the appointing agency’s action only when it was "arbitary.” To the contrary, *603the precondition for ERB’s power of modification as stated in ORS 240.560(4) is precisely that the appointing agency did act in good faith and for cause.
The first question in the present case, therefore, is whether ERB could have affirmed respondent’s demotion of Mr. Williams. The case differs from its predecessors, as the court states, because ERB found that only two of respondent’s five reasons for its action could be sustained. It might be argued that in such a case ERB could not affirm the action and thus could not modify it. But this is not the court’s theory, and I do not think it is required by the statute. I do not read ORS 240.086(2) or ORS 240.560(4) to require complete reversal of a disciplinary action and a new start within the appointing agency whenever one of many grounds for its action proves vulnerable on appeal to ERB. If, for instance, one of several acts or omissions charged to an employee would plainly be a proper and sufficient basis for discharge, and it is established to ERB’s satisfaction that the appointing agency would in good faith discharge the employee on that ground alone and is not motivated by reasons forbidden in ORS 240.560(3), the fact that the agency may also have cited other, unproven, grounds for its action does not deny ERB the authority to affirm the discharge. And if ERB has the authority to affirm under such circumstances, it also has the authority to modify the action under ORS 240.560(4).
The next question is by what standards and by what procedures ERB is to exercise this authority. This, is important to the appointing agency’s (and thus the public’s) interest in the future performance of the employee’s work in the agency, as the court points out. ERB is itself an agency administering a statutory mandate. The fact that it may modify another agency’s action does not mean that it may do anything it pleases.
The authority to modify disciplinary action given to ERB in this statute is discretionary authority similar *604to the Public Utility Commissioner’s authority to modify a penalty that was before us in Dickinson v. Davis, 277 Or 665, 561 P2d 1019 (1977). Such administrative discretion, the court stated, is not a "magic word” but a range of responsible choice in pursuing a statutory assignment under various circumstances. "This applies to a discretionary choice of sanctions just as to other delegated authority.” Id. at 673. To the extent that the reasons for the discretionary choice depend on facts not already in the record, which a party may wish to dispute, Dickinson held that opportunity to place these facts on record should be provided. Id. at 674 and note 6.
I believe that a similar solution is proper here. If ERB finds that there are no proper grounds on which it could affirm disciplinary action, it is bound to set the action aside, ORS 240.086(2); if it finds there are such grounds, it is authorized to affirm. However, if it determines that it may be proper, in lieu of affirmance, to modify the appointing agency’s action, the parties are entitled to address that issue on the record before ERB makes its final decision. This maybe done in the initial hearing or, if the issue of modification arises only after ERB concludes that the grounds for action are partly valid and partly unfounded, it may be done by reopening the record. Cf. Dickinson v. Davis, supra, note 6. Since ERB’s decision involves review of another agency’s action, that agency’s judgment deserves a degree of deference.
■ This solution assures that ERB will have before it the views of the responsible appointing agency as to the action it considers proper on those grounds which ERB has found valid, without the need of a remand to that agency and a subsequent return to ERB in a new appeal. Counsel for the state agreed at oral argument that this procedure would serve the purpose of allowing the appointing agency to reconsider the proper action. It also assures that there will be a proper record on possible judicial review of ERB’s exercise of its *605authority under ORS 240.560(4) without requiring a reopening of the record at that late stage under ORS 183.482(5). Thus, the proper disposition of this case should be to remand it to ERB in order to permit petitioner and respondent to place on record their arguments for the affirmance or modification of respondent’s action in light of ERB’s findings that only two of the five grounds for the action were proper.
It is not uncommon for courts to divide over the meaning of a statute, but this is not really such a case. As examination of the majority opinion will show, the majority does not itself read the statute differently from this opinion or even claim that it is ambiguous. Rather, the court’s opinion rests entirely on a policy expressed by the Court of Appeals that management responsibility for sanctions against a public employee should be insulated from ERB power to modify unless they can be declared to be "arbitrary.” This may or may not be a better policy, but that is not this court’s concern. The legislature authorized the Employment Relations Board to modify disciplinary sanctions itself, not merely to remand them to the appointing agency. The courts may disturb the board’s action in this respect only if it is "unlawful.” ORS 183.482(8)(a). What the majority candidly does in this case is to replace the legislature’s view of personnel management with that of the Court of Appeals. Apparently, if the legislature wishes to reassert what it unambiguously said in ORS 240.560(4), it will have to find some way to say it again.
Tongue and Lent, JJ., join in this dissenting opinion.The "rule” may be either a rule of the employing agency or a rule established by ERB for agency personnel actions pursuant to ORS 240.555(1). See OAR 105-81-100 to 81-600.
ORS 240.560:
(1) A regular employe who is reduced, dismissed, suspended or demoted, shall have the right to appeal to the board not later than 10 days after the effective date of such reduction, dismissal, suspension or demotion. Such appeal shall he in writing and shall be heard by the board within 30 days after its receipt. The board shall furnish the division of the service concerned with a copy of the appeal in advance of the hearing.
(2) The hearing shall be conducted as provided for a contested case in ORS 183.310 to 183.500.
(3) If the board finds that the action complained of was taken by the appointing authority for any political, religious or racial reasons, or because of sex or marital status, or was an unlawful employment practice as described in subsection (1) of ORS 659.026, the employe shall be reinstated to his position and shall not suffer any loss in pay.
(4) In all other cases, if the board finds that the action was not taken in good faith for cause, it shall order the immediate reinstatement and the reemployment of the employe in his position without the loss of pay. The board in lieu of affirming the action, may modify it by directing a suspension without pay for a given period, and a subsequent restoration to duty, or a demotion in classification, grade or pay. The findings and order of the board shall be certified in writing to the appointing authority and shall be forthwith put into effect by the appointing authority.