Palen v. Oregon State Bd. of Higher Educ.

• Jurisdiction: Oregon
• Parties: Margaret K. PALEN, Petitioner, v. OREGON STATE BOARD OF HIGHER EDUCATION, Respondent.
• Citation: Palen v. Oregon State Bd. of Higher Educ., 525 P.2d 1047, 18 Or.App. 442 (Or. App. 1974)
• Court: Oregon Court of Appeals
• Decision Date: 13 November 1974

Page 1047

525 P.2d 1047

18 Or.App. 442

Margaret K. PALEN, Petitioner, v.OREGON STATE BOARD OF HIGHER EDUCATION, Respondent.

Court of Appeals of Oregon.

Argued and Submitted July 15, 1974.

Decided Aug. 26, 1974.

Rehearing Denied Oct. 2, 1974.

Review Denied Nov. 13, 1974.

Warren A. McMinimee, Tillamook, argued the cause for petitioner.With him on the brief were McMinimee & Kaufman, Tillamook.

W. Michael Gillette, Sol.Gen., Salem, argued the cause for respondent.With him on the brief were Lee Johnson, Atty. Gen. and Clarence R. Kruger, Asst. Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and TANZER, JJ.

SCHWAB, Chief Judge.

Petitioner seeks review of a decision of the State Board of Higher Education(Board) terminating her employment 'for cause.'The principal questions presented are whether the Board's regulation defining 'cause' to discharge an employe is sufficiently precise and whether substantial evidence supports the Board's decision.

Petitioner was employed by the Board through one of its subordinate institutions, Oregon State University(OSU), as a County Extension Agent in Tillamook County.She had indefinite tenure, meaning under the Board's regulations that she could only be discharged for cause.On April 20, 1972, OSU officials charged petitioner with acts and omissions they contended constituted cause for dismissal.In accordance with the Board's regulations, a hearing was held on these charges before a five-member OSU faculty committee.The committee concluded some charges were proven, others were not proven, and that the proven charges constituted cause for dismissal.Petitioner appealed to the President of OSU.He affirmed the faculty committee's findings and conclusion.Petitioner appealed to the Board.It affirmed the OSU President.This appeal followed.

I

While it would undoubtedly be more orderly to completely separate the question whether the controlling regulation is valid from the question whether it was properly applied to the facts of this case, the questions cannot be easily bifurcated.The basis for our decision can be best illuminated by first generally discussing the regulation, and then in part II, infra, more specifically discussing it in light of the facts at bar.

Petitioner's discharge was based on Oregon Administrative Rules(OAR) 41.330(3), which provides:

"Cause' shall mean * * * (3) failure to perform the responsibilities of an academic staff member, arising out of his particular assignment, toward his students, toward his academic discipline, toward his colleagues, or toward the institution in its primary educational and scholarly functions * * *.'

Much of petitioner's attack on this regulation is based on Sun Ray Dairy v. OLCC, 98 Adv.Sh. 614, 16 Or.App. 63, 517 P.2d 289(1973).However, Sun Ray Dairy is generally inapplicable.That was a case in which an administrative agency had no regulations defining the standards controlling the grant or denial of licenses.Here the Board does have a regulation, OAR 41.330(3), defining cause for dismissal of an employe.The real thrust of petitioner's attack is that this regulation is so imprecise as to be void for vagueness.

' The root of the vagueness doctrine is a rough idea of fairness.'Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct 1953, 32 L.Ed.2d 584(1972).The ultimate criterion being fairness, the degree of precision required in statutes and regulations varies somewhat depending upon the context.At one end of the spectrum--where the greatest degree of precision is required--are statutes defining crimes.See, State v. Hodges, 254 Or. 21, 457 P.2d 491(1969);City of Portland v. White, 9 Or.App. 239, 495 P.2d 778, Sup.Ct. review denied (1972).Toward the other end of the spectrum are, for example, statutes defining the relationship between a governmental employer and its employes--statutes that typically articulate a common standard applicable to myriad different employes performing widely disparate tasks.

Thus, the United States Supreme Court has upheld broadly worded statutory standards in the context of public employment.Arnett v. Kennedy, --- U.S. ---, 94 S.Ct 1633, 40 L.Ed.2d 15(1974), and USCSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796(1973), are the leading examples.In Arnettthe court upheld 5 U.S.C. § 7501 which provides that federal civil service employes could be discharged 'only for such cause as will promote the efficiency of the service.'In Letter Carriersthe court upheld the Hatch Act prohibition against certain federal employes taking 'an active part in political management or in political campaigns.'5 U.S.C. § 7324(a)(2).See also, Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830(1973).

Against this background, we turn to the controlling regulation, OAR 41.330(3).It provides, paraphrasing, that cause for dismissal includes the failure of an employe to perform his responsibilities adequately.Based on the analysis in Arnett and Letter Carriers, we conclude this standard is sufficiently precise in the context of employer-employe relationships, and is not void for vagueness on its face.'There are limitations in the English language with respect to being both specific and manageably brief * * *.'Letter Carriers, 413 U.S. at 578--579, 93 S.Ct. at 2897, 37 L.Ed.2d at 816.'We do not believe that * * * (the Board) was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all.'Arnett, --- U.S. at ---, 94 S.Ct. at 1647, 40 L.Ed.2d at 36.

[3,4]Petitioner resists this conclusion by centering her attack on the fact that the Board has no regulations specifying what her responsibilities as a county extension agent were.We are not persuaded that this makes OAR 41.330(3) void for vagueness.First, evidence can be introduced in individual cases, for example, by way of a job description, to establish the specific responsibilities of a Board employe; standards set out in previously adopted regulations are not essential.See, Board of Medical Examiners v. Mintz, 233 Or. 441, 378 P.2d 945(1963);Ward v. Ore. State Bd. of Nursing, 97 Adv.Sh. 260, 266 Or. 128, 510 P.2d 554(1973).Second, the general responsibilities of all employes in both the public and private sectors are a matter of both common law and common sense; for example, faithfully complying with the employer's direction and control, diligently performing assigned tasks, not doing things obviously inimical to the employer's interests, ect.We conclude that while establishing an employe's specific and general responsibilities may conceivably present problems in the application of OAR 41.330(3) in some marginal cases, See, part II, infra, this problem does not render the regulation void on its face.

Another issue seems to be involved in petitioner's argument.Applied literally, OAR 41.330(3) might make Any failure to perform Any responsibility cause for dismissal; for example, cause to dismiss an employe who is late to work one morning after arriving punctually every day for 10 years.Neither the OSU faculty hearing committee, nor the OSU President, nor the Board, so interpreted OAR 41.330(3) in this case; nor do we.Instead, it is apparent that the intent behind OAR 41.330(3) was to make dismissal of permanently tenured employes dependent upon establishing some serious and unreasonable failure to perform responsibilities, or clearly inadequate performance of responsibilities.We so interpret OAR 41.330(3).

Stevenson v. Morgan, Or.App., 99 Adv.Sh. 198, 522 P.2d 1204(1974), illustrates our point.The question in that case was what constitutes 'good cause' within the meaning of ORS 657.176(2), which bars unemployment compensation claims when an employe leaves work 'voluntarily * * * without good cause.'We stated:

"Good cause' may be said to be such cause as would similarly affect persons of reasonable and normal sensitivity * * * and is limited to those instances where the unemployment is caused by external pressures so compelling that a reasonably prudent person, exercising ordinary common sense and prudence, woulld be justified in quitting work under similar circumstances.(Citing cases.)Thus, the applicable standards to determine 'good cause' are standards of reasonableness as applied to the average man or woman, not the supersensitive person * * *.The question of 'good cause' is therefore to be determined from the particular circumstances of each case * * *.'99 Adv.Sh. at 201--202, 522 P.2d at 1206.

Factually, this case is the converse of Stevenson; here the question is what constitutes good cause for an employer to terminate an employment relationship.But the legal principle is the same as in Stevenson; there we asked whether a reasonable employe would quit under the same circumstances; here the inquiry must be whether a reasonable employer would discharge an employe under the same circumstances.

In summary, we hold that under OAR 41.330(3): (1) the specific responsibilities of a specific employe of the Board can be proven in individual cases; (2) the Board is entitled to take official notice of the general responsibilities of all its employes; and (3) such failure to perform responsibilities as will be cause for dismissal must be a substantial deviation from the reasonably expected level of performance.As so interpreted, we hold OAR 41.330(3) is not void for vagueness.

II

We turn then to the application of OAR 41.330(3) to the facts of this case and petitioner's contention that the Board's decision is not supported by substantial evidence.

Analytically, application of OAR 41.330(3) involves three steps.(1) What were the employe's responsibilities?(2) Are the factual conclusions regarding failure to perform responsibilities supported by substantial evidence?(3) If so, do the facts constitute 'cause' for dismissal as we have interpreted that term in part I, supra?

As this case comes to us, the Board has...