Boyce v. Umpqua Community College, E82-2096

• Decision Date: 26 June 1984
• Docket Number: No. E82-2096,E82-2096
• Citation: 67 Or.App. 629,680 P.2d 671
• Parties: , 17 Ed. Law Rep. 665 Joel BOYCE, Respondent, v. UMPQUA COMMUNITY COLLEGE, Douglas County, Oregon; and Grant Levins; Wayne Crooch; Del Blanchard; Paul Felker; Don Keel; Bill Markham; Don Rice; I.S. Hakanson; Leo R. Crisman and James E. West, in their official capacities, Appellants. ; CA A28091.
• Court: Oregon Court of Appeals

Page 671

680 P.2d 671

67 Or.App. 629, 17 Ed. Law Rep. 665

Joel BOYCE, Respondent, v. UMPQUA COMMUNITY COLLEGE, Douglas County, Oregon; and Grant Levins; Wayne Crooch; Del Blanchard; Paul Felker; Don Keel; Bill Markham; Don Rice; I.S. Hakanson; Leo R Crisman and James E. West, in their official capacities, Appellants.

No. E82-2096; CA A28091.

Court of Appeals of Oregon.

Argued and Submitted Jan. 18, 1984.

Decided April 11, 1984.

Review Denied June 26, 1984.

Eldon F. Caley, Roseburg, argued the cause and filed the briefs for appellants.

Robert D. Durham, Eugene, argued the cause for respondent. With him on the brief was Kulongoski, Heid, Durham & Drummonds, Eugene.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Defendants appeal from a judgment on writ of review, in which the trial court ordered Umpqua Community College (Umpqua) to reinstate plaintiff Boyce in the status of "continuing contract instructor" with back pay and other employment benefits. We reverse.

Boyce was employed by Umpqua as a continuing contract employe through the 1980-81 school year. On March 3, 1981, the college president and two deans delivered to plaintiff the following letter:

"Pursuant to college board policy 308.19 Non-Renewal of Continuing Contract, we are recommending to the board that your contract be reduced to probationary one-year status for the 1981-82 academic year.

"The reason for this action is that full time instructor staffing is based on student enrollment and your classes have not maintained sufficient student enrollment since 1975-76."

The college board officially met on March 10, 1981, and took action to rescind the continuing contract of several employes, including plaintiff. Plaintiff was present at the meeting and aware of the board's action. ¹ On March 26, 1981, he received written notice of the board's March 10 action. ² Pursuant to the March 3 letter, plaintiff accepted employment as a one-year probationary employe and filed a grievance under applicable college policies, seeking reinstatement as a continuing contract employe.

On February 25, 1982, the president and deans sent plaintiff a letter stating their intent to recommend to the college board that he not be rehired for the 1982-83 school year. On March 9, 1982, the board voted not to renew his employment, and on March 26, 1982, he received written notice that his employment would terminate at the end of the 1980-81 academic year, pursuant to the board's March 9 action. Plaintiff continued to teach his classes through June 20, 1982, and pursued his grievance. Pursuant to board policy, ³ the grievance hearings were restricted to an examination of the reasons and wisdom of the non-renewal, after which the Umpqua board voted to reconfirm the decision not to renew plaintiff's contract. Plaintiff subsequently filed this action in circuit court, seeking a review of the board's action under ORS 34.010 through 34.100. ⁴

Umpqua had promulgated certain policies pertaining to personnel in effect at all material times, which created two categories of employment for instructors: "probationary" employment and "continuing contract" employment. ⁵ The policies contain the following provisions relevant to resolve this dispute:

"308.1 Preface: This section establishes, pursuant to ORS 341.290, the rules for discipline and procedures to be followed for disciplinary proceedings pertaining to all employees of the District.

"This section also enacts rules pertaining to the non-renewal of employment contracts.

"No irregularity or noncompliance with any of the provisions of this section shall nullify or otherwise affect the finality of any action taken hereunder unless it shall have materially prejudiced the party adversely affected thereby.

" * * *

"308.18 Non-Renewal of a Probationary Employee: A probationary employee is entitled to notice that his contract will not be renewed. He shall be entitled to this notice on or before March 15th of his current contract year. If a probationary employee is not notified of non-renewal by March 15th, his contract will be deemed renewed for one additional year only. The notice of non-renewal need state only that the contract will not be renewed. However, the probationary employee shall, upon his request, be given a statement of the reasons for such non-renewal.

"308.19 Non-Renewal of a Continuing Contract Employee: After an employee has been formally granted the status of continuing contract employee, his employment will be continuous unless he * * * is not renewed in the manner hereafter provided. In the event that the contract of a continuing contract employee is not to be renewed, that employee shall be given written notice of non-renewal no later than March 15 of a school year. Upon being given such notice, the employee will continue to be an employee of district until June 30th of the year following the year to which the March 15th non-renewal date applies."

The trial court found that plaintiff was entitled to reinstatement as a continuing contract employe, because Umpqua failed to give him effective notice of the board's action under Umpqua's policies in that: (1) the notice advised plaintiff of the board's intent to "rescind" his continuing contract status rather than "non-renew," and (2) plaintiff did not receive written notice that the college would not renew his contract on or before March 15 of the school year. Umpqua appeals, claiming that the notice was adequate and that, in any event, plaintiff was not materially prejudiced by any deficiencies, as required by section 308.1 of the policies, and, therefore, not entitled to relief.

The trial court concluded that the notice was not adequate, because the board approved an administrative recommendation to "rescind" plaintiff's contract. Because Umpqua's policy on non-renewal does not permit Umpqua to "rescind" a continuing contract once it has been granted, the trial judge found that the Umpqua board of directors acted outside of its procedures and the action was therefore ineffective. We are not persuaded. The March 3 notice, the board action and the March 26 notice conveyed the clear message that Umpqua intended not to renew plaintiff's continuing contract status and offered him employment as a probationary status employe for the 1981-82 term. The letter of March 3, stating that the action was taken "pursuant to college board policy 308.19 Non-Renewal of Continuing Contract," leaves no doubt as to the policy relied on.

According to policy 308.19, plaintiff was entitled to and received employment through another school year after the non-renewal of his continuing contract whether or not he accepted the offer of probationary status for one year. The only effect of the grant of probationary status was to give plaintiff the right to additional notice by March 15 of the 1981-82 school year rather than simply automatic termination pursuant to policy 308.19. Plaintiff accepted the one-year probationary term and filed a grievance. Although he disagreed with the board's action, there is no indication that the effect of the board's notice was not clear to all parties. Under these circumstances, we decline to afford "non-renew" the significance of a "magic" word and concluded that the use of the word "rescind" does not invalidate the board's action.

In the alternative, the trial court concluded that plaintiff was not given written notice of non-renewal of his continuing contract by March 15, 1981, as required by policy 308.19, which automatically bestowed reemployment on him. The court relied on Welo v. Dist. Sch. Bd., Dist. No. 7, 24 Or.App. 443, 545 P.2d 921 (1976), and Wallis v. Crook County School Dist., 13 Or.App. 174, 509 P.2d 44 (1973), to support this conclusion. In Welo and Wallis, we held that the school board's failure to give written notice of contract non-renewal by March 15 of the school year, as required by ORS 342.513(1), ⁶ in effect at that time, automatically confers reemployment on the affected teacher. But this case presents a different issue. Plaintiff is not a certified public school or education service district employe entitled to rely on ORS 342.513(1), ⁷ and Welo and Wallis do not control the result here.

There is no statutory procedure for community college personnel similar to ORS 342.513(1), which applies to school districts. Umpqua is authorized by ORS 341.290 ⁸ to adopt policies defining terms and conditions of employment. Cole v. Chemeketa Community College, 58 Or.App. 77, 83, 647 P.2d 935, rev. den. 293 Or. 521, 651 P.2d 144 (1982). Plaintiff's rights and responsibilities are controlled by the terms of his contract and Umpqua's personnel policies incorporated into that contract. See Yartzoff v....