Scherzinger v. PORTLAND CUSTODIANS

• Decision Date: 08 December 2004
• Docket Number: No. 0208-08154, 0210-09876, A120712 Control, A120713.,0208-08154, 0210-09876, A120712 Control, A120713.
• Citation: 103 P.3d 1122,196 Or. App. 384
• Parties: James SCHERZINGER and Portland School District No. 1J, Respondents, v. The PORTLAND CUSTODIANS CIVIL SERVICE BOARD, Respondent, and Tamara McWilliams, Henry Shambry, and 90 Civil Service Custodians, Appellants. State ex rel Tamara McWilliams, Henry Shambry, and 90 Civil Service Custodians, Appellants, v. Portland Public School District No. 1J, Multnomah County, Oregon; Portland Board of Education; Marc Abrams; Lolenzo Poe; Sue Hagmeier; Derry A. Jackson, Sr.; Debbie Goldberg Menashe; Julia Brim-Edwards; Karla Wenzel; and James Scherzinger, Respondents.
• Court: Oregon Court of Appeals

103 P.3d 1122

196 Or. App. 384

James SCHERZINGER and Portland School District No. 1J, Respondents, v. The PORTLAND CUSTODIANS CIVIL SERVICE BOARD, Respondent, and Tamara McWilliams, Henry Shambry, and 90 Civil Service Custodians, Appellants.

State ex rel Tamara McWilliams, Henry Shambry, and 90 Civil Service Custodians, Appellants, v. Portland Public School District No. 1J, Multnomah County, Oregon; Portland Board of Education; Marc Abrams; Lolenzo Poe; Sue Hagmeier; Derry A. Jackson, Sr.; Debbie Goldberg Menashe; Julia Brim-Edwards; Karla Wenzel; and James Scherzinger, Respondents.

No. 0208-08154, 0210-09876, A120712 (Control), A120713.

Court of Appeals of Oregon.

Argued and Submitted August 10, 2004.

Decided December 8, 2004.

Mark E. Griffin argued the cause for appellants. With him on the briefs was William D. Brandt.

William H. Walters, Portland, argued the cause for respondents James Scherzinger and Portland School District No. 1J., Multnomah County, Oregon; Portland Board of Education; Marc Abrams; Lolenzo Poe; Sue Hagmeier; Derry A. Jackson, Sr.; Debbie Goldberg Menashe; Julia Brim-Edwards; and Karla Wenzel. With him on the brief were Jeffrey D. Austin and Miller Nash LLP.

No appearance for respondent The Portland Custodians Civil Service Board.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

BREWER, C.J.

Tamara McWilliams, Henry Shambry, and 90 other civil service custodians, to whom we collectively refer as "the custodians," lost their jobs after the Portland Public School District (PPS) decided to contract out all its custodial work to a private contractor. This procedurally complex case involves two issues: (1) whether a decision by the Employment Relations Board (ERB) that PPS's proposal to contract out its custodial work was not a prohibited subject of bargaining precluded the Custodians Civil Service Board (the board) from deciding that PPS's dismissal¹ of the custodians violated the Custodians' Civil Service Law (CCSL), ORS 242.310 to 242.640 and ORS 242.990, and (2) whether the trial court could review the board's decision in a writ of review action. We agree with the trial court that the writ of review action was an appropriate procedural vehicle through which PPS could challenge the board's reinstatement order and that the board was precluded from determining that the custodians' dismissal violated the CCSL. We therefore affirm.

The material facts are not in dispute. In 2002, PPS faced a serious budget crisis, and its then-superintendent, James Scherzinger, sent a letter to the president of the custodians' union informing him that PPS proposed to contract out all of the custodial services currently being performed by members of the union. A series of legal proceedings ensued.² The first proceeding pertinent here was an administrative proceeding before ERB under ORS 183.410 and OAR 115-015-0000.[3]³ The union sought a declaratory ruling that "the contracting out of custodial services by [PPS] is a prohibited subject of bargaining, and that [the CCSL] prohibits [PPS] from terminating its custodial employees and contracting out its custodial services." The thrust of the union's argument was that the CCSL provides a comprehensive scheme for hiring, promoting, and dismissing the custodians, that contracting out custodial work would render the CCSL a "dead letter," and that the legislature implicitly precluded such a circumvention of the CCSL. ERB framed the issue before it as "whether [PPS's] proposal to contract out its custodial services is contrary to the provisions of the CCSL or requires violation of those statutes." ERB concluded that PPS's proposal did not violate the CCSL, reasoning that the CCSL applies only to the custodians in PPS's employ, and the CCSL does not prohibit PPS from choosing not to employ the custodians. ERB therefore entered an order ruling that the proposal was not a prohibited subject of bargaining. We affirmed that order in Walter v. Scherzinger, 193 Or.App. 355, 89 P.3d 1265 (2004).

After ERB entered its order, PPS and the union bargained over the proposal but reached no agreement. PPS accordingly implemented its proposal to contract out custodial work, and it terminated the custodians' employment. See ORS 243.698(4) (after the bargaining process has ended, an employer may implement its proposed changes without any further obligation to bargain). The custodians then instituted a proceeding before the board asking it to reinstate them pursuant to ORS 242.630. That statute authorizes the board to determine whether a custodian's dismissal was made for "political or religious reasons, or because of reasons of age as described in ORS chapter 659A, or was not made in good faith for the purpose of improving public service"; instructs the board to report its findings to the school board; and directs the school board to reinstate the employee accordingly. Id. The custodians argued that the dismissals violated the CCSL because they were without cause and not for the good of public service. See ORS 242.620 (stating that no permanently appointed employee in the civil service shall be dismissed except for cause and authorizing the board to investigate allegations that a dismissal was not made in good faith for the purpose of improving public service). The board investigated, agreed with the custodians that PPS dismissed them in violation of the CCSL, and ordered their reinstatement.

In response to that order, PPS initiated a writ of review action in the trial court, alleging, among other things, that ERB's decision precluded the board from deciding that the dismissals violated the CCSL. The custodians intervened in that action and moved to dismiss the writ on the ground that PPS lacked standing to challenge the board's order. They did not challenge the factual assertions in PPS's petition; rather, they argued that, as a matter of law, PPS could not challenge any order by the board under any circumstance. The trial court disagreed and denied the motion.

The custodians also brought a separate action in the trial court seeking a writ of mandamus to enforce the board's order. In a consolidated hearing, the trial court heard cross-motions for summary judgment in both the mandamus and the writ of review actions and ruled in favor of PPS in both. The court agreed with PPS that ERB's decision precluded the board from deciding that PPS violated the CCSL and from ordering the custodians' reinstatement. Accordingly, the court entered one judgment annulling⁴ the board's order and another dismissing the mandamus action. The custodians assign error to the trial court's denial of their motion to dismiss the writ of review, its grant of PPS's motion for summary judgment in the writ of review action, and its denial of the custodians' motion for summary judgment in the mandamus action.⁵ We address each in turn.

The custodians first assign error to the trial court's denial of their "motion to dismiss PPS[ ]'s writ of review." We note that the motion itself was entitled "motion to dismiss PPS[ ]'s petition for a writ of review." We treat the motion as a motion to dismiss the writ of review for the following reason. A writ of review directs another court, officer, or tribunal to send a certified copy of a record to the trial court for review. ORS 34.060. After reviewing the record, the trial court may enter a judgment on the merits. ORS 34.100. Because the custodians made their motion after the trial court issued the writ, the motion should be treated as one to dismiss or quash the writ itself rather than one to dismiss the petition for the writ. We turn to the merits of the motion.

The custodians have asserted, both before the trial court and this court, that PPS lacked "standing" to seek a writ of review. Ordinarily, when a respondent or intervenor in a writ of review action challenges the petitioner's standing to seek the writ, the trial court holds an evidentiary hearing at which the petitioner bears the burden of proving facts that establish standing. Duddles v. City Council of West Linn, 21 Or.App. 310, 330, 535 P.2d 583, rev. den. (1975). Here, however, the custodians do not challenge any of PPS's factual assertions regarding standing, nor have they requested an evidentiary hearing on that issue. Rather, they assert that, as a matter of law, PPS may not object to any decision by the board under any circumstance. They make two arguments in support of that assertion. First, they argue that neither the CCSL nor the writ of review statutes allow PPS to seek judicial review of the board's orders. That is a question of statutory interpretation, which we review for legal errors. Hannigan v. Hinton, 195 Or.App. 345, 348, 97 P.3d 1256 (2004). Second, they argue that PPS is attempting to appeal its "own" decision and therefore there is no adversity between the parties. The custodians did not raise that argument to the trial court but, because the argument challenges the justiciability of PPS's claims, we address it for the first time on appeal.⁶ See Oregon Medical Association v. Rawls, 281 Or. 293, 296, 574 P.2d 1103 (1978) (noting that appellate courts must consider justiciability regardless of when or whether it was raised to them or to any other court).

The custodians first argue that "[t]he CCSL does not give [PPS] the right to appeal from a decision by the [board]. There is nothing in the Writ of Review statute, ORS 34.010 et seq., which indicates that [PPS] may obtain a writ of review of a [board] order." The custodians are correct that the CCSL does not expressly provide for an appeal by PPS. However, PPS did not attempt to appeal the board's order under the CCSL. Rather, it relied on ORS 34.020, which provides that, subject to certain exceptions not applicable here, "any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors[.]" The board is a ...