544 P.2d 186 | Or. Ct. App. | 1975
Lead Opinion
Plaintiff is a fireman employed by Washington County Fire District No. 1. On July 19, 1973, the Fire Chief suspended the plaintiff for ten days without pay. This disciplinary action was based on a charge that the plaintiff had made remarks which discredited the fire service. Defendant Civil Service Commission, after a hearing which plaintiff requested,
“1. The district shall restore retroactively all pay foregone as a result of the suspension.
“2. The district shall cause a written reprimand to be issued to you expressing their position on remarks they deem prejudicial to the good of the service.”
As we interpret it, the defendant’s decision effectively reversed plaintiff’s suspension. Defendant agrees. Plaintiff appealed to the circuit court to have the written reprimand removed from his file. The circuit court allowed defendant’s motion to quash for lack of jurisdiction and dismissed plaintiff’s appeal. The basis of the motion was that OES 242.804(3) limits appeal from civil service commission decisions “to matters of removal, discharge, demotion or suspension.” Plaintiff appeals from the order of dismissal.
OES 242.804 provides in pertinent part:
“(1) Any decision of the commission affecting any permanent employe or employes subject to OES 242.702 to 242.824 may be appealed to the circuit court of the county in which the office of the appointing power or the commission is located, and the court shall hear the appeal.
* # # #
“(3) The circuit court shall hear and determine such appeal in a summary manner. The hearing shall be confined to the determination of whether the order of removal, discharge, demotion or suspension made by the commission was made in good faith for cause. No appeal to such court shall be heard except upon such grounds.
Plaintiff contends that there is nothing in the
The question of the reviewability of administrative actions is a question of legislative intent. Since legislative history, which generally is a weak reed at best, offers no clues, we must ascertain that intent from the statute itself. OBS 242.804 is internally consistent if subsection (3) is interpreted as a reference to the scope of review. In other words, the degree of judicial inquiry is limited to a determination of whether the reviewable action was made in good faith for cause. Subsection (1) controls what actions may be reviewed.
This case should not be confused with Wied v. Marion County, 23 Or App 288, 542 P2d 149 (1975). There, the commission had not entered an order on the issue of removal, discharge, suspension or demotion. As one ground for holding that the circuit court lacked jurisdiction to hear an appeal from a civil service commission order, the court stated:
“We are directed to no provision of OBS ch 241 which gives the circuit court ¡authority to review any action by a county civil service commission except final orders of removal, discharge, suspension or demotion. A similar limitation is found in OBS 241.460(3).”[① ] Wied v. Marion County, supra, 23 Or App at 292.
The structure of ORS ch 242 is not the same. A fireman who has been disciplined may demand an investigation. ORS 242.800. After an investigation, the commission may affirm or modify the action taken by the appointing authority, or order reinstatement. ORS 242.802.
This additional latitude in modifying disciplinary actions creates the fundamental difference between this case and Wied. ORS 242.804(1) makes it manda
As further support for our interpretation of ORS 242.804, we note an illogical statutory progression in OES ch 242. A permanent fireman may be “dismissed, demoted, suspended without pay or deprived of special privileges” only for cause. OES 242.798. (Emphasis supplied.) An employe “who has been dismissed, demoted, suspended without pay or deprived of special privileges” may demand an investigation. ORS 242.-800. (Emphasis supplied.) That section continues:
“* * * The investigation shall be confined to the determination of the question of whether the dismissal was made in good faith for cause.” ORS 242.800. (Emphasis supplied.)
Certainly the legislature did not intend to give firemen the privilege of demanding an investigation in four discrete instances of discipline and then restrict that same investigation only to dismissals. Likewise, it is unreasonable to assume that the legislature intended the circuit court to have jurisdiction over appeals from commission orders of removal, discharge, demotion or suspension, but not from commission orders depriving a fireman of special privileges. OES 242.804(3) is not meant to be an exhaustive list of commission orders which a circuit court can hear on appeal any more than OES 242.800 is meant to restrict the commission’s investigation only to dismissals. OES 242.804(1) provides that a circuit court shall hear the appeal from any statutorily authorized decision of the commission affecting a permanent fireman.
We hold, therefore, that the circuit court had jurisdiction to hear plaintiff’s appeal in this case.
Eeversed.
“The circuit court shall thereupon proceed to hear and determine such appeal in a summary manner, and its decision shall be final. The hearing shall be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension, made by the commission, was or was not made for political or religious reasons, or because of an unlawful employment practice as described in subsection (1) of ORS 659.026, and was or was not made in good faith for cause. No appeal to such court shall be taken except upon such grounds.” ORS 241.460(3).
“After an investigation and public hearing, the commission may affirm or modify the action taken by the appointing power, or if it finds that the dismissal was not made in good faith for cause, the commission shall order the immediate reinstatement of the employe in the position from which he was dismissed * * ORS 242.802.
Issuing a letter of reprimand may not be the type of modification contemplated by the statute as within the authority of the commission to make. However, since neither party contends that it is not, we do not consider that question.
Dissenting Opinion
dissenting.
My study of the statutes in issue (firemen’s civil service law) and our recent decision in Wied v. Marion County, 23 Or App 288, 542 P2d 149 (1975), involving the county employes’ civil service law, leads me to the opposite conclusion from the majority opinion. I believe that the trial judge correctly interpreted and applied these statutes, and that his decision should be affirmed. See also, Helberg v. Civil Service Com., 10 Or App 62, 498 P2d 789 (1972).
The issue on appeal here is substantially similar to the issue we decided in Wied v. Marion County, supra, although Wied involved the next preceding chapter of Oregon Revised Statutes, namely, ORS ch 241 (civil service for county employes).
In Wied we decided that ORS ch 241 did not authorize the circuit court to entertain an appeal from an order of the Marion County Civil Service Commission holding that Wied’s written resignation as a deputy sheriff was not a voluntary resignation. It is my view that the conclusion reached in the majority opinion is in conflict with our previous holding in Wied.
The crux of my disagreement with the majority opinion is with the construction it places on ORS 242.804.
Here, subsection (3) of ORS 242.804 expressly provides that no appeal to the circuit court lies except from an order of “removal, discharge, demotion or suspension.” In Wied, subsection (3) of ORS 241.460 also expressly provided that no appeal to the circuit court would lie except from an order of “removal, discharge, demotion or suspension.” Here, subsection (3) of ORS 242.804 provides further that such review “shall be confined to the determination of whether
Similarly in Wied, subsection (3) of OBS 241.460 provided further that such review
“* * * shall be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension * * * was or was not made for political or religious reasons, or because of an unlawful employment practice as described in subsection (1) of OBS 659.026, and was or was not made in good faith for cause. No appeal to such court shall be taken except upon such grounds.”
Quite obviously a letter of reprimand, which is in issue here, is not an order of “removal, discharge, demotion or suspension.” Therefore no appeal to the circuit court lies.
As in the case of OBS ch 241, with which we were dealing in Wied v. Marion County, supra, the same words, “removal, discharge,” etc., are also found in other parts of the same Act. See, for example, OBS 242.796, 242.798, 242.800.
I would agree that OBS 242.804(1), standing alone, authorizes circuit court review of “[a]ny decision of the commission affecting any permanent employe * * However, under established rules of construction OBS 242.804(1) must be read in pari materia with the remainder of the Act, particularly OBS 242.804(3). Curly’s Dairy v. Dept. of Agriculture, 244 Or 15, 21, 415 P2d 740 (1966); Haas v. Myers, 10 Or App 495, 500 P2d 1068 (1972).
The ancestor statute of OBS ch 241 was enacted in 1929. However, OBS 242.702 et seq, the firemen’s
I can reach no other conclusion from the above analysis than that the trial judge, even without benefit of our subsequent decision in Wied, correctly interpreted and applied ORS 242.804 in the case at bar. I would affirm.