Davis v. Wasco Intermediate Educ. Dist.
| Decision Date | 06 September 1978 |
| Parties | Bettyjane DAVIS, Petitioner, v. WASCO INTERMEDIATE EDUCATION DISTRICT and Fair Dismissal Appeals Board, Respondents. CA 9985. |
| Court | Oregon Court of Appeals |
Robert D. Durham, Eugene, argued the cause for petitioner. With him on the brief was Kulongoski, Heid, Durham & Drummonds, Eugene.
John R. Faust, Jr., Portland, argued the cause for respondent Wasco Intermediate Ed. Dist. On the brief were Stanley D. Heisler, and Heisler, Van Valkenburgh & Coats, The Dalles. Assisting on the brief were John R. Faust, Jr., and Hardy McEwen, Weiss, Newman & Faust, Portland.
James A. Redden, Atty. Gen. and Al L. Laue, Sol. Gen., Salem, waived appearance for respondent Fair Dismissal Appeals Board.
Before SCHWAB, C. J., and THORNTON, J., and DENECKE, J. Pro Tem.
Petitioner was employed by The Dalles School District No. 12 as a permanent teacher, I. e., tenured. She taught "special education" classes, I. e., a program for mentally handicapped children. School District No. 12 abolished its special education program and, by agreement with Wasco Intermediate Education District, transferred responsibility to provide special education classes to the IED. 1 Petitioner then became a special education teacher for the IED. After two school years with the IED, petitioner's contract was not renewed.
Petitioner appealed to the Fair Dismissal Appeals Board, contending she retained the permanent teacher status she enjoyed with School District No. 12 upon being transferred to the IED, and thus could only be dismissed for cause. The Board ruled to the contrary. We reverse.
Petitioner relies upon ORS 236.610, which provides:
ORS 236.620(1) and (3) provide:
The parties agree that the IED "assumed or acquired" the duties of petitioner's employment within the meaning of ORS 236.610. The parties agree that, If applicable, ORS 236.610 and 236.620 provide that a permanent teacher who is transferred from one district to another retains his or her job security. The IED's sole contention is that, despite the broad definition of "public employe" in ORS 236.610(2), this statutory scheme is not applicable to teachers.
Five arguments are advanced in support of this conclusion. The first relies upon District Court v. Multnomah County, 21 Or.App. 161, 534 P.2d 207 (1975). That case involved the question of the employment rights of the court administrator of the Portland Municipal Court when it merged with the Multnomah County District Court. We stated in part: "An employe who never had civil service status is not within the protection of ORS 236.610." 21 Or.App. at 165, 534 P.2d at 209. The Fair Dismissal Appeals Board relied on this one sentence to conclude that ORS 236.610 is inapplicable to teachers because they are not Civil service employes. In context, however, the quoted sentence only meant that a public employe without statutory job protection before being transferred remains in the same status after being transferred, I. e., that since the court administrator did not have statutory job protection as a city employe before being transferred, he did not have statutory job protection as a county employe after being transferred.
The second argument is a variation on the first. The IED relies upon the part of ORS 236.610(1) which states that transferred employes do not have to take "further civil service examination," and argues that since teachers never take any form of civil service examination, the statutory scheme must be inapplicable to teachers. This phrase, however, can be reconciled with the balance of the statute which by its plain terms is applicable to teachers by reading it to mean: without having to go through further steps necessary to acquire statutory job protection.
Third, the IED relies upon the part of ORS 236.630(3) which states if "the transferee employer finds that no position exists, the employe shall be listed as a regular laid-off employe," and argues that since school districts are not required to maintain lists of laid-off teachers, the statutory scheme must be inapplicable to teachers. This clause, however, can be reconciled with the balance of the statute by reading it to mean: a transferred employe with statutory job protection who is laid off by the transferee employer for the reason stated in ORS 236.630(3) must be given priority when the transferee employer subsequently hires new employes. Cf. ORS 240.315.
We are not rewriting ORS 236.610 et seq. We interpret the statutes as expressing the broad policy that public employes whose duties are transferred from one public employer to another generally retain the same employment rights after being transferred. We are aware that the various statutory job protection schemes vary between state and local government, and vary between different local governments. See Papadopoulos v. Bd. of Higher Ed., 14 Or.App. 130, 156-62, 511 P.2d 854, Rev. den. (1973), Cert. den. 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974). Indeed, the term "civil service examination" does not appear in the state merit system law. See ORS 240.330 (). Accordingly, we only conclude that the terminology of ORS 236.610...
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Davis v. Dalles School Dist. No. 12
...and that FDAB therefore had jurisdiction over petitioner's appeal from the nonrenewal of her contract by the IED. Davis v. Wasco IED, 36 Or.App. 3, 583 P.2d 1151 (1978). The record before us does not indicate whether there have been any proceedings on remand to the FDAB of petitioner's appe......