Adams v. PERB

• Court: Oregon Court of Appeals
• Writing for the Court: HASELTON, P.J.
• Citation: Adams v. PERB, 180 Or App 59, 42 P3d 911 (Or. App. 2002)
• Decision Date: 13 March 2002
• Parties: Bruce L. ADAMS and Daniel A. Reichman, Petitioners, v. PUBLIC EMPLOYEES RETIREMENT BOARD, Respondent.

42 P.3d 911

180 Or. App. 59

Bruce L. ADAMS and Daniel A. Reichman, Petitioners, v. PUBLIC EMPLOYEES RETIREMENT BOARD, Respondent.

99-0389; A111942

Court of Appeals of Oregon.

Argued and Submitted December 11, 2001.

Decided March 13, 2002.

James M. Brown argued the cause for petitioners. On the briefs were Loren W. Collins and Enfield Brown Collins Knivila & Cook.

Brendan C. Dunn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

Petitioners, who worked as mental health therapists at the Oregon State Hospital (OSH), seek judicial review of a final order of the Public Employees Retirement Board (Board) that concluded that petitioners were not "police officers" for purposes of Public Employee Retirement System (PERS) classifications. They raise a panoply of statutory construction, substantial evidence, and constitutional challenges. We reject those arguments—including petitioners' contention that they were employed as members of a "law enforcement unit" for purposes of the definition of "police officers." See ORS 238.005(14)(L) (1999); ORS 181.610(5); ORS 181.610(12). Consequently, we affirm.

The Board found the relevant facts as follows. Petitioners are employed in Ward 50G of the Forensic Rehabilitation and Transition Services Program/Social Rehabilitation Unit at OSH, and are within the job classification "Mental Health Therapist 1." OSH is divided into four units: child, adolescent and geropsychiatric services; adult services; forensic evaluation services; and forensic rehabilitation and transition services. About 80 percent of the patients in the forensic units have been committed to the jurisdiction of the Psychiatric Security Review Board (PSRB), but the units also provide services to people who have been civilly committed or have been found incompetent to stand trial. The Forensic Rehabilitation and Transition Services unit consists of six wards. Ward 50G, where petitioners work, is a residential ward with 35 beds, approximately 92 percent of which are occupied by patients under PSRB's jurisdiction.

Mental Health Therapists on Ward 50G are certified nursing assistants who monitor the patients' work activities, therapeutic programs, recreational activities, and meals. They perform care and treatment of patients and serve as case monitors for small groups of assigned patients. They assist in the implementation of treatment plans. They document patients' progress and meet with treatment teams to present case histories and summarize patients' progress toward treatment goals. The mental health therapists keep track of patients, check them for contraband, and escort them when they need to leave the ward. They also intervene in and diffuse altercations between the residents. Both petitioners have been assaulted and sustained injuries while dealing with violent patients on Ward 50G.

In 1999, petitioners requested that PERS classify them as "police officers" for purposes of the retirement system. PERS denied their request on the ground that mental health therapists did not meet the statutory criteria for police officers, and that OSH did not meet the definition of "law enforcement unit" set forth in ORS 181.610(12). Petitioners requested a contested case hearing for review of the denial of their request for reclassification.

After a hearing in May 2000, the hearing officer drafted a proposed order setting forth findings of fact, and concluding that petitioners were not entitled to be classified as "police officers" for purposes of PERS because OSH is not a "law enforcement unit" as defined by ORS 181.610(12). In September 2000, the Board adopted the hearing officer's proposed order and entered a final order to that effect. Petitioners seek judicial review of that final order.

Before turning to petitioners' specific arguments, we set forth the relevant statutes that frame the dispute. PERS statutes make different provisions for police officers and firefighters from those for other public employees in the retirement system. For purposes of PERS, "police officer" includes:

"Corrections officers as defined in ORS 181.610." ORS 238.005(14)(L) (1999).¹

ORS 181.610(5), in turn, defines "corrections officer" as follows:

"`Corrections officer' means an officer or member of a law enforcement unit who is employed full-time thereby and is charged with and primarily performs the duty of custody, control or supervision of individuals convicted of or arrested for a criminal offense and confined in a place of incarceration or detention other than a place used exclusively for incarceration or detention of juveniles." (Emphasis added.)

ORS 181.610(12)(a) provides:

"`Law enforcement unit' means a police force or organization of the state, a city, port, school district, mass transit district, county, county service district authorized to provide law enforcement services under ORS 451.010, Indian reservation, Criminal Justice Division of the Department of Justice, the Department of Corrections, the Oregon State Lottery Commission or common carrier railroad whose primary duty, as prescribed by law, ordinance or directive, is any one or more of the following:

"(A) Detecting crime and enforcing the criminal laws of this state or laws or ordinances relating to airport security;

"(B) The custody, control or supervision of individuals convicted of or arrested for a criminal offense and confined to a place of incarceration or detention other than a place used exclusively for incarceration or detention of juveniles; or

"(C) The control, supervision and reformation of adult offenders placed on parole or sentenced to probation and investigation of adult offenders on parole or probation or being considered for parole or probation." (Emphasis added.)

Petitioners' argument for inclusion in PERS as police officers rests on their contention that they qualify as "corrections officers" under ORS 181.610(5). They contend that they provide "custody, control or supervision" of the patients on Ward 50G, most of whom are under the jurisdiction of PSRB and, therefore, necessarily have been "convicted of or arrested for a criminal offense and confined in a place of incarceration or detention."² ORS 181.610(5). They further assert that the forensic unit at OSH that includes Ward 50G constitutes a "law enforcement unit" as defined in ORS 181.610(12)(a) because it is an "organization of the state * * * whose primary duty, as prescribed by law, ordinance or directive," includes "custody, control or supervision of individuals convicted of or arrested for a criminal offense and confined to a place of incarceration or detention[.]" Alternatively, and in all events, petitioners contend that OSH, as a whole, is a "law enforcement unit." The Board did not reach the question of whether petitioners "primarily perform[ ] the duty of custody, control or supervision of individuals convicted of or arrested for a criminal offense and confined in a place of incarceration or detention," ORS 181.610(5), because it concluded that, in any event, OSH is not a "law enforcement unit" under ORS 181.610(12)(a).

On judicial review, petitioners contend that the Board erred in numerous respects. Primarily, petitioners contend that the Board erred in concluding that neither the forensics units nor OSH as a whole is a "law enforcement unit" as defined in ORS 181.610(12)(a). Petitioners make a number of related arguments that are dependent on the success of their primary argument. They contend that the Board erred in failing to make specific findings of fact concerning the security of the forensics units at OSH; that the Board erred in finding that petitioners had been assaulted by patients "occasionally" rather than "frequently"; and that the Board erred in failing to determine whether mental health therapists in the forensic units at OSH primarily perform "the duties of custody, control and supervision of individuals convicted of or arrested for criminal offenses," within the meaning of ORS 181.610(5). Finally, petitioners argue that, if the Board correctly determined that they do not qualify as "police officers" under the PERS statutes, then the statutes lack a rational basis under the Equal Privileges and Immunities Clause of Article I, section 20, of the Oregon Constitution, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

We write primarily to address the first of petitioners' arguments—viz., whether the forensic units at OSH are "law enforcement units" within the meaning of ORS 181.610(12)(a)—and, even if not, whether OSH as a whole is a "law enforcement unit." We do not reach petitioners' various arguments concerning the adequacy of the findings pertaining to the security measures at the forensic units or petitioners' job duties, because such findings would be relevant only if petitioners were found to be members of a "law enforcement unit." Finally, for reasons discussed at the end of this opinion, we reject petitioners' constitutional arguments.

We turn to the proper construction and application of "law enforcement unit." The parties argue at length about whether "law enforcement unit" is an "inexact term" or whether, as respondent suggests, we should give deference to the Board's interpretation of that statutory term under the methodology of Springfield Education Assoc. v. School Dist., 290 Or. 217, 223-24, 621 P.2d 547 (1980).³ Under ORS 181.610(12)(a), a "law enforcement unit" may be an "organization of the state * * * whose primary duty, as prescribed by law, ordinance or directive, is any one or more of [specifically listed duties]." Contrary to respondent's assertion, we do not defer to the Board's interpretation of that definition under circumstances such as these.

Deference to agency interpretation of statute...