Davis v. Wasco Intermediate Educ. Dist.

• Decision Date: 01 May 1979
• Citation: 593 P.2d 1152,286 Or. 261
• Parties: Bettyjane DAVIS, Respondent, v. WASCO INTERMEDIATE EDUCATION DISTRICT, Petitioner. CA 9985; SC 25842.
• Court: Oregon Supreme Court

Page 1152

593 P.2d 1152

286 Or. 261

Bettyjane DAVIS, Respondent, v. WASCO INTERMEDIATE EDUCATION DISTRICT, Petitioner.

CA 9985; SC 25842.

Supreme Court of Oregon.

Argued and Submitted March 7, 1979.

Decided May 1, 1979.

John R. Faust, Jr. of Hardy, McEwen, Newman, Faust & Hanna, Portland, argued the cause and filed brief for petitioner.

Robert D. Durham of Kulongoski, Heid, Durham & Drummonds, Eugene, argued the cause and filed brief for respondent.

Before HOLMAN, P. J., and TONGUE, HOWELL, BRYSON, LENT and LINDE, JJ. ^*

TONGUE, Justice.

This case involves the review of a determination by the Fair Dismissal Appeals Board that the petitioner school teacher did not retain her permanent teacher status when she changed jobs in connection with the transfer of the special education program in which she worked from her former employer, The Dalles School District No. 12, to her new employer, WASCO INTERMEDIATE EDUCATION DISTRICT. THE COURT OF APPEALS REVERSED. 36 OR.APP. 3, 583 P.2D 1151 (1978)¹. We granted review.

The central issue on review is whether petitioner as a public school teacher was a "public employe" for purposes of ORS 236.610 to 236.650, which grant a certain measure of job security to a "public employe" when the duties he or she performs are assumed by another governmental agency.

The facts of this case are not in dispute. Bettyjane Davis (hereafter Ms. Davis) was employed by The Dalles School District No. 12 as a "permanent teacher." As such, she had certain rights under the Fair Dismissal Law, ORS 342.805 et seq. Among these rights were the right to be dismissed only for cause, and the right to certain procedural protections attendant to dismissal.

Ms. Davis taught classes in a "special education" program for children with mental, physical, emotional or learning problems. In 1975 this program was transferred to the Wasco Intermediate Education District (hereafter Wasco IED). Ms. Davis was informed by District No. 12 that its program was being terminated, and she was offered the option of applying for another job with District No. 12 or seeking transfer to Wasco IED. She chose the latter, and Wasco IED thereafter employed Ms. Davis as a probationary teacher in its new special education program for the school years 1975-76 and 1976-77. Ms. Davis' employment was not renewed for the 1977-78 school year. ²

Ms. Davis appealed her nonrenewal to the Fair Dismissal Appeals Board, contending that the provisions of ORS 236.610 to 236.650 were applicable to her case, and that she was therefore entitled to permanent teacher status in Wasco IED and the protection of the Fair Dismissal Law.

The FDAB disagreed, holding that a public school teacher was not a "public employe" for purposes of ORS 236.610 to 236.650; that "(h)aving elected to seek employment in a new district, Mrs. Davis must be held to have voluntarily changed her place of employment and consequently lost the protection afforded under the Fair Dismissal Law until she again achieved status as a permanent teacher," and that as Ms. Davis was not a permanent teacher in Wasco IED, the FDAB lacked authority to order her reinstatement.

The Court of Appeals reversed, holding that because it found "no persuasive reason for not following the plain words of ORS 236.610(2)," it followed that Ms. Davis was a "public employe," whose job security rights were preserved by ORS 236.610 et seq. when she transferred from District No. 12 to Wasco IED. The Court of Appeals remanded the case to the FDAB, however, for a determination of whether Ms. Davis waived her claim to permanent teacher status by executing the two "probationary teacher contracts" with Wasco IED.

We granted review to determine the question whether a teacher is a "public employe" within the intended meaning of ORS 236.610(2) for purposes of ORS 236.610 to 236.650. This determination rests on an analysis of the following statutory provisions.

ORS 236.610 provides:

"(1) No public employe shall be deprived of his employment solely because the duties of his employment have been assumed or acquired by another public employer, whether or not an agreement, annexation or consolidation with his present employer is involved. Notwithstanding any statute, charter, ordinance or resolution, but subject to ORS 236.610 to 236.650, the public employe shall be transferred to the employment of the public employer who assumed or acquired his duties, without further civil service examination.

"(2) As used in subsection (1) of this section, 'public employe' means an employe whose salary or wages is paid from public funds * * *."

" * * * "d i

ORS 236.620 provides:

"A public employer who receives a transferred employe under subsection (1) of ORS 236.610, including an employe whose transfer is provided for by an agreement under ORS 190.010, shall place that employe on its employe roster, subject to the following:

"(1) If the employe was serving a probationary period with his employer at the time of transfer, his past service on probation shall apply on the regular probation requirements of the transferee employer."

" * * * " em

"(3) The employe shall retain the seniority he accrued under his prior employment, but no regular employe of the transferee employer shall be demoted or laid off by reason of that seniority.

"(4) The employe otherwise shall enjoy the same privileges and be subject to the same regulations as other employes of the transferee employer."

ORS 236.630 provides:

"A public employer who receives a transferred employe under subsection (1) of ORS 236.610 shall place that employe in a position comparable to the position he enjoyed under his prior employment, subject to the following: "

" * * * "mpl

"(2) If the transferee employer finds that no comparable position exists under subsection (1) of this section, the employe shall be offered a lesser position, if such position is available, according to his qualifications, by the transferee employer. The finding and action of such employer under this subsection, and subsection (3) of this section shall be subject to a hearing upon the employe's request and subject to review under ORS 34.010 to 34.100.

"(3) If the transferee employer finds that no position exists, the employe shall be listed as a regular laid-off employe and shall have priority to appointment over other persons eligible for any position for which he is qualified."

Ms. Davis contends that because both Wasco IED and District No. 12 are public employers, and because at all times her salary was "paid from public funds," she is clearly a "public employe" for purposes of ORS 236.610(2) and is therefore entitled to all of the protections of ORS 236.610 to 236.650.

It is commonly stated, as a rule of statutory construction, that the words used in a statute are to be given their "plain" or "ordinary" meaning. ³ 2A Sands, Sutherland Statutory Construction 24, 48, §§ 45.08, 46.01 (4th ed. 1973). This court has also recognized the general rule that a court may not ignore the plain meaning of unambiguous words of a statute. Fox v. Galloway, 174 Or. 339, 347, 148 P.2d 992 (1944); Lane County v. Heintz Const. Co. et al., 228 Or. 152, 157, 364 P.2d 627 (1961).

The "plain or ordinary meaning" of the words of ORS 236.610(2) " 'public employe' means an employe whose salary or wages is paid from public funds" would appear to include public school teachers within the protection of ORS 236.610 to 236.650. These words, however, may not be read in isolation. As stated in 2A Sands, Sutherland Statutory Construction, Supra, at 56, § 46.05:

" * * * A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed."

Accord, City of Portland v. Duntley, 185 Or. 365, 380, 203 P.2d 640 (1949); Cal-Roof Wholesale v. Tax Com., 242 Or. 435, 443, 410 P.2d 233 (1966).

In other words, the remainder of the language of ORS 236.610 to 236.650 must be examined to see if it restricts or qualifies the broad definition of "public employe" in ORS 236.610(2), or raises a question as to the intent of the legislature. 2A Sands, Sutherland Statutory Construction, Supra, at 49, § 46.01.

Upon examination of the language of ORS 236.610 to 236.650, we find sufficient ambiguity to make appropriate resort to extrinsic aids such as the legislative history to determine whether the legislature intended that a public school teacher be considered a "public employe" for purposes of ORS 236.610 to 236.650. As we stated in Gilbertson v. McLean et al., 216 Or. 629, 641-42, 341 P.2d 139, 145 (1959):

"That the courts may and frequently do resort to the history of a bill during its passage as an aid to interpretation where language of doubtful import is found in the statute is not open to doubt. * * * As stated in 2 Horack's Sutherland Statutory Construction (3d ed.) 484, § 5003, this history 'has generally been the first extrinsic aid to which courts have turned in attempting to construe an ambiguous act.' * * * " (Citation omitted) In particular, we find ambiguity in the apparent references in ORS 236.610 to 236.650 to merit system procedures, which raises a question as to whether non-merit system employes such as teachers were intended to be included. First, ORS 236.610(1) provides that "the public employe shall be transferred to the employment of the public employer who assumed or acquired his duties, without Further civil service examination." (Emphasis added) The implication here is that the public employe in question had already taken a civil service examination. Teachers do not take such examinations.

Second, ORS 236.630(3) provides that "(i)f the transferee employer finds that no position exists, the employe shall be Listed as a regular Laid-off employee * * *." (...