Walker v. Oregon Travel Information Council

432

Argued and submitted April 13, 2018; affirmed on appeal, on cross-appeal,

judgment for plaintiff reversed September 18, 2019

Kyle K. WALKER,

Plaintiff-Appellant,

Cross-Respondent,

v.

STATE OF OREGON,

by and through

the Semi-Independent State Agency,

the Oregon Travel Information Council,

branded and doing business as

the Oregon Travel Experience,

Defendant-Respondent,

Cross-Appellant.

Marion County Circuit Court

15CV02202; A163420

450 P3d 19

Plaintiff appeals a judgment of the trial court rejecting her statutory whistle-

blowing claim under ORS 659A.203. The State of Oregon cross-appeals, assign-

ing error to the trial court’s denial of its motion for directed verdict on plaintiff’s

common-law wrongful-discharge claim. Held: The trial court erred in denying the

state’s motion for directed verdict on plaintiff’s common-law wrongful-discharge

claim because there was no evidence from which a jury could find that plaintiff

had been discharged for fulfilling an important public duty. In light of that dis-

position, which requires reversal of the judgment for plaintiff on her common-law

wrongful-discharge claim, the Court of Appeals rejected plaintiff’s appeal con-

cerning her statutory whistleblowing claim, which was dependent in part on the

judgment for plaintiff on the wrongful-discharge claim.

Affirmed on appeal; on cross-appeal, judgment for plaintiff reversed.

Mary Mertens James, Judge.

Luke W. Reese argued the cause for appellant-cross-

respondent. Also on the briefs was Garrett Hemann

Robertson PC.

Denise G. Fjordbeck, Assistant Attorney General, argued

the cause for respondent-cross-appellant. Also on the briefs

were Ellen F. Rosenblum, Attorney General, and Benjamin

Gutman, Solicitor General.

Cite as 299 Or App 432 (2019) 433

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Shorr, Judge.

ARMSTRONG, P. J.

Affirmed on appeal; on cross-appeal, judgment for plain-

tiff reversed.

434 Walker v. Oregon Travel Information Council

ARMSTRONG, P. J.

Plaintiff Kyle Walker brought claims against defen-

dant Oregon Travel Information Council (the Council),

a semi-independent agency of the State of Oregon, for

common-law wrongful discharge and statutory “whistle-

blowing,” ORS 659A.203,1 arising out of her discharge from

a position as the Council’s director. The trial court allowed

plaintiff’s wrongful-discharge claim to be submitted to

the jury, which awarded plaintiff damages of $1.2 million.

However, the court rejected plaintiff’s claim for statutory

whistleblowing, which was tried to the court. Plaintiff

appeals, assigning error to the trial court’s rejection of the

statutory claim. The Council cross-appeals, contending that

the trial court erred in allowing the common-law wrongful-

discharge claim to go to the jury. We conclude that the trial

court did not err in rejecting plaintiff’s statutory claim, but

we agree with the Council on its cross-appeal that the trial

court erred in submitting the wrongful-discharge claim to

the jury. We therefore reverse the judgment.

The Council, together with the Department of

Transportation, is responsible for the placement and per-

mitting of tourist-oriented signs along state highways. The

Council also manages, maintains, improves, and develops

a number of rest areas around the state that are owned by

the Department of Transportation and the Department of

State Parks and Recreation. ORS 377.805; ORS 377.841.

The Council receives its funding from sign-permit fees and

the State Highway Fund, as allocated to the Council by the

Department of Transportation. ORS 377.841(6).

1

ORS 659A.203(1) provides, in part:

“Subject to ORS 659A.206, except as provided in ORS 659A.200 to

659A.224, it is an unlawful employment practice for any public or nonprofit

employer to:

“* * * * *

“(b) Prohibit any employee from disclosing, or take or threaten to take

disciplinary action against an employee for the disclosure of any information

that the employee reasonably believes is evidence of:

“(A) A violation of any federal, state or local law, rule or regulation by the

public or nonprofit employer;

“(B) Mismanagement, gross waste of funds or abuse of authority or sub-

stantial and specific danger to public health and safety resulting from action

of the public or nonprofit employer[.]”

Cite as 299 Or App 432 (2019) 435

The Council consists of 11 volunteer members,

including the chairperson of the Oregon Transportation

Commission (or designee) and 10 members appointed by the

Governor from the public at large. ORS 377.835(2) (2013).2

The Council’s bylaws state that a quorum of six members

is required to transact business. The Council elects officers

(a chair, vice-chair, and secretary) and is supported by a

staff of paid employees, including a director, who serves at

the Council’s pleasure and is charged with “administrative

control” of the Council. ORS 377.835(7).

The Council is a “semi-independent” agency. ORS

377.835. It is permitted to develop its own personnel rules

and salary-classification system.3 The Council is required to

adopt a biennial budget, ORS 291.206(1) (relating to rules

guiding state agencies in preparation of budget requests),

but the budget is not subject to review or approval by the

legislature or to future modification by the Emergency

Board or the legislature, and is exempt from state spending

limitations. ORS 377.840(6). However, the Council must file

an annual report with the Governor, the legislature, and the

Legislative Fiscal Officer, ORS 377.838, and the Council’s

finances are subject to annual review by the Secretary of

State. ORS 377.840(7).

The Council staff is led by the director. At the rele-

vant time, ORS 377.835(7) (2013) provided:

“The Council shall be under the administrative control

of a director who is appointed by and who holds office at

the pleasure of the Council. The director of the Council

may appoint all subordinate officers and employees of the

Council and may prescribe their duties and fix their com-

pensation. The director of the Council may delegate to any

subordinate officer or employee any administrative duty,

2

References to ORS 377.835 are to the 2013 version of the statute, in effect

at the relevant time.

3

As a semi-independent agency, the Council is exempt from the state person-

nel system, ORS 377.836(1); state financial administration, including the legis-

lative budgeting process, ORS chapter 291; the state salary and payroll system,

ORS chapter 292; and ORS chapter 293, relating to the administration of public

funds. ORS 377.836.

436 Walker v. Oregon Travel Information Council

function or power imposed upon the Council by or pursuant

to law.”4

Under its bylaws, the volunteer Council is the governing body

for the agency and is responsible for establishing its budget.

The bylaws state that the Council has exclusive authority

to determine the employment status and compensation of

the director, who serves at the pleasure of the Council. The

director, in turn, has the authority to appoint all subordi-

nate officers and employees and may prescribe their duties

and compensation, within the Council’s salary guidelines.

The director may contract with state agencies but may not,

without prior approval of the Council, authorize an expendi-

ture of funds in excess of $25,000. ORS 377.838.

Under the Council’s bylaws, the executive commit-

tee consists of three elected officers and one other member

of the Council. The executive committee is charged with

serving as a resource to the director and staff on all mat-

ters that relate to the administration of the organization

and making recommendations to the Council. The executive

committee is also required to conduct an annual evaluation

of the director. Under the bylaws, the finance committee con-

sists of one executive committee member and a minimum

of two other council members and is charged with coordi-

nating with staff to review planned budgets and financial

reporting.

Because it is largely dispositive of the issues raised

on appeal, we first address the Council’s contention raised

on cross-appeal that the trial court erred in allowing plain-

tiff’s wrongful-discharge claim to be submitted to the jury.

We summarize the undisputed facts from the record.

The Council hired plaintiff as the Council’s director

in December 2012. The offer of employment stated:

4

In 2017, the legislature amended ORS 377.835(7). Or Laws 2017, ch 105,

§ 1. The statute now provides that the Council is required to hire an executive

director and to “define the duties of and fix the salary of an executive director.”

ORS 377.835(7). The executive director, in turn, has the authority “to direct the

affairs of the agency,” subject to the direction of the Council. Id. The statute also

gives the executive director the authority to appoint all subordinate officers and

employees of the agency, to prescribe their duties, to provide supervision, and to

fix their salaries. Id.

Cite as 299 Or App 432 (2019) 437

“Beginning on December 10, 2012, you will serve as the

CEO/Executive Director of Oregon Travel Experience.

Pursuant to ORS 182.468, this position is an unclassified

executive service position in which you serve at the plea-

sure of the Oregon Information Council in an ‘at will’ sta-

tus, with no property interest to this position.

“This is an appointment to a semi-independent agency.

Your gross salary will be paid monthly at $9,585.33 per

month ($115,000 annually). Benefits include three weeks

paid vacation, accrued upon execution of this letter for

the first year; vacation will accrue monthly in subsequent

years. You will also receive a comprehensive package of

state benefits, including full coverage health insurance for

you and your family for medical, dental and vision paid by

the agency, excepting adjustable fees that are dependent

on your responses to the PEBB annual [renewal] question-

naire. PEBB requires employees to contribute 5% toward

the cost of health and dental coverage.

“The executive committee will conduct a performance review

six months after hire; any compensation adjustments will

be made at the first anniversary of your hire.”

An audit by the Secretary of State the previous

year had directed the Council to develop an employee

classification and salary structure, and plaintiff hired a

human resources director to begin that process. As a semi-

independent agency, the Council was exempt from the per-

sonnel policies of the State of Oregon. The Council expressed

to plaintiff its concern that the current salary structure

was “top heavy” and its desire to stay within its existing

budget. The Council chair told plaintiff that, although the

Department of Administrative Services (DAS) “Hay”5 sys-

tem could be a resource for the employee handbook and for

mapping out positions and salary ranges, salaries should

be kept within the budget that had been adopted by the

Council, with plaintiff’s salary at the top. Almost imme-

diately, conflicts arose between plaintiff and the Council’s

executive committee over the salary structure.

Plaintiff recognized that her own salary would be

the “keystone” for the Council’s personnel compensation plan.

5

The “Hay” system is an evaluation method used by public and private enti-

ties to map out and structure job roles within their organizational structure.

438 Walker v. Oregon Travel Information Council

At her six-month review in June 2013, plaintiff presented

the Council with an analysis comparing her salary to that

of directors of other semi-independent agencies. Plaintiff

requested that, beginning on plaintiff’s one-year service

date, the Council establish a director salary aligned with

a DAS management salary range 7-PEMH of $9,955 per

month. Plaintiff also requested a 5 percent ($2,875) retroac-

tive raise to compensate her for human resources work that

she had assumed during her first six months of employment

before the hiring of a human resources director.

Plaintiff also sought an increase in her sick-leave

benefit. Because she had had only 8.5 days of sick leave

available during the first few months of employment, plain-

tiff stated that she had been required to use vacation time

for treatment related to an on-the-job injury. She requested

an additional sick-leave “bank” of 40 hours to offset the loss

of vacation time and for an anticipated medical procedure

before the end of the year.

The Council did not approve the additional retroac-

tive pay and told plaintiff that an adjustment to her salary

would be considered as a part of her year-end review. In its

review of plaintiff’s performance, the Council’s executive

committee expressed concern over plaintiff’s resistance to

the executive committee’s “changes in process,” her level of

communication with the Council and the executive commit-

tee, her attempts to “over-manage” the executive committee,

and her “over-focus on total compensation (salary and ben-

efits).” The Council extended plaintiff’s probationary period

for an additional six months.

On June 30, 2013, the Council adopted its proposed

budget for the 2013-2015 biennium. The budget included

a 1.5 percent cost-of-living increase for employees. The

Council directed plaintiff to present a salary structure to

the Council that was within the Council’s existing bud-

get and to seek Council approval for any classification or

pay decisions that affected the budget. Plaintiff agreed to

come back to the Council before implementing a new salary

structure.

Plaintiff and the human resources director continued

to analyze employee positions, including plaintiff’s position,

Cite as 299 Or App 432 (2019) 439

under the Hay classification system used by DAS and to

develop a compensation plan that aligned with DAS sala-

ries. The plan, which the human resources director shared

with the Council in December 2013, classified plaintiff’s

position as a “Principal Executive Manager H,” with a sal-

ary range of $98,148 to $140,364, and a recommended sal-

ary for plaintiff of $127,364.

In addition to a salary increase of $12,000 for

plaintiff, the plan included pay raises for those employees

who had had performance reviews in the past six months,

with an annual budgetary effect of $48,000. Because plain-

tiff believed that it was her responsibility to set salaries

of employees and that the financial effect of the new sal-

ary scale was minimal, plaintiff implemented the new sal-

ary structure on January 1, 2014, without the Council’s or

the finance committee’s approval, and the Council did not

learn that the new salary scale had been implemented until

February 19, 2014.

At its January 2014 meeting, the Council ended

plaintiff’s probationary period and announced that plain-

tiff’s salary would be increased by $5,000 from $115,000 to

$120,000. Because the Council had not approved the raise

that plaintiff had requested for herself, plaintiff asked the

Council chair to sign an “exception form” describing its

reasons for paying plaintiff less than the proposed salary

scale. The Council chair declined, explaining that plaintiff’s

salary was within the range provided to plaintiff when the

Council hired her.

At the end of January 2014, the Council chair and

vice-chair met with plaintiff to discuss concerns about her

continued efforts to increase her salary. At that time, plain-

tiff told them that the new compensation plan had been com-

pleted and was “ready to go,” but she did not tell them that

it had already been implemented. The vice-chair requested

information about the salary scale. After checking with

Department of Justice, plaintiff sent the vice-chair the pre-

vious pay scale before the changes that had gone into effect.

In February 2014, the Council asked plaintiff to

hold off on any agency restructuring to allow the Council to

440 Walker v. Oregon Travel Information Council

approve a strategic plan for the agency, which could affect

the organizational chart and staffing. Plaintiff believed that

this was an infringement on her authority as director. She

met with Michael Jordan, the director of DAS, “because I

started getting a little bit concerned about some of these

authority pieces and was looking for some help.” Plaintiff

understood that DAS could advise boards and commissions

through training and could mediate conflicts and resolve

issues. Jordan told plaintiff that, due to budgetary con-

straints, he was unable to offer any assistance in training,

and he suggested that the Governor’s office might be willing

to intervene.

On February 19, the Council chair learned for the

first time that the new salary plan had been implemented

effective January 1. The Council chair asked plaintiff to

meet with the executive committee on March 12, 2014, to

discuss “several issues, including the areas of compensation

and salary ranges.” Plaintiff offered to bring support staff

to the meeting, but the Council chair told her that would not

be necessary.

The council had not previously published notice

of its executive committee meetings. The Council’s bylaws

state that six members constitute a quorum, and the exec-

utive committee consists of only four members. However,

because there were vacancies on the Council, plaintiff won-

dered whether an executive committee meeting might con-

stitute a quorum and therefore a “public meeting” under the

Public Meetings Law, ORS 192.610 to 192.695. Plaintiff’s

executive assistant told her that notice would be required.

Plaintiff asked the executive assistant to check with the

Department of Justice, and an attorney advised that the

meeting needed to be noticed, because the executive com-

mittee was the Council’s governing body and its meetings

were therefore required to be public. See ORS 192.630(1)

(“All meetings of the governing body of a public body shall

be open to the public.”).

Plaintiff testified that she then asked her execu-

tive assistant to ask the Council chair whether the meeting

should be noticed, and that the Council chair told the exec-

utive assistant that notice would not be necessary, because

Cite as 299 Or App 432 (2019) 441

the executive committee did not constitute a quorum of the

Council. Plaintiff testified that she knew that, as director,

it was her responsibility to see that public meetings were

noticed, and that she would not have expected members

of the executive committee to know whether a notice was

required. She did not personally tell the Council chair that

notice was required but believed that her executive assis-

tant had told the Council chair that an attorney from the

Department of Justice had advised that notice of the meet-

ing needed to be given.6 She testified that she did not send

notice of the meeting.

Plaintiff testified that she knew, going into the

March 12, 2014, executive committee session, that it would

be in violation of the Public Meetings Law, because no notice

had been given. She nonetheless did not correct the Council

chair’s view that notice was not required, because she

was aware that she served at the pleasure of the Council.

Plaintiff anticipated that she might be fired at the meeting.

Plaintiff was not fired at the meeting, and the exec-

utive committee did not take any formal action. Rather,

plaintiff testified that there was a conversation about the

executive committee’s disappointment relating to plaintiff’s

handling of the salary issue. Although the Council did not

cancel the raises that plaintiff had implemented in January

6

Plaintiff testified that, after receiving advice from the Department of

Justice,

“[w]e took the information we had and queried [the Council chair] and said,

‘You know what? We think this meeting needs to be noticed because of the

quorum issues.’ * * * And we gave [the Council chair] all that information and

she said, ‘No. It’s not necessary. We’ll proceed.’ ”

On cross-examination, defense counsel asked plaintiff whether her executive

assistant had sent an email notifying the Council chair that notice of the meeting

needed to be given. She testified:

“I’m saying that’s a possibility. You’ll have to ask [the executive assistant].”

The executive assistant was asked by plaintiff’s counsel if she had any recollec-

tion of plaintiff talking about how the notice issue would be communicated to the

executive committee members, and she did not recall. She testified:

“I don’t know that there would be reason to communicate with them if it

was * * * a meeting that needed to be publicly * * * noticed, it would not be up

to them and I would have just done it if that was the direction I was given.”

And again:

“If it needed to be publicly noticed it needs to be publicly noticed. They didn’t

need to be notified that it needed to be publicly noticed.”

442 Walker v. Oregon Travel Information Council

without notifying the Council, the Council gave plaintiff spe-

cific direction for the creation of the agency’s salary struc-

ture.7 Plaintiff believed once again that the Council was

micromanaging her and treading on her statutory responsi-

bilities as administrator.

After the March 2014 meeting, the Council chair

became aware that the meeting had been held in violation of

the Public Meetings Law, initiated a training for staff, and

required that all future meetings of the executive committee

be subject to notice. Staff was notified that notice of future

meetings of the executive committee had to be given. The

executive committee gave notice of its April 3, 2014, meeting

and has given notice for all subsequent meetings.

On April 1, 2014, the Council’s management team,

including plaintiff, brought on Wyland as a policy analyst.

Wyland was the long-time domestic partner of plaintiff’s

brother and was regarded by plaintiff as her sister-in-law.

Plaintiff told the management team that she and Wyland

were acquainted, but she did not reveal the nature of the

acquaintance. Despite recommendations of the Council that

new management be hired at the middle of the pay scale,

plaintiff brought Wyland on at the top of the pay scale.

Plaintiff’s chief operating officer joined plaintiff at

the Council meeting of April 3, 2014, to explain the fiscal

effect of the new pay scale. The draft salary chart that

plaintiff presented to the Council continued to list salaries

in relation to a salary of $127,000 for herself, which plain-

tiff had proposed but the Council had not approved. One

Council member stated that it was his impression that the

DAS model would not be the basis for salaries and that the

keystone would be the salary range that the Council had

established for plaintiff. Council members also expressed

concern that the proposed salary structure continued to be

top heavy.

After the April 3, 2014, Council meeting, plaintiff

believed that the Council was intent on micromanaging her

and exceeding its legal authority. On April 8, 2014, plaintiff

7

For example, the Council told plaintiff that the salary structure should

assume cost-of-living increases but not automatic step increases.

Cite as 299 Or App 432 (2019) 443

and her leadership team sent Jordan a memorandum “as

follow up to conversations regarding emerging * * * Council

governance issues,” listing their concerns:

“1. The Chair/Vice Chair now claim they directed the

CEO to not align with DAS best practices. This is contrary

to agency guidance shared by you with my predecessor and

board member Russell dating back to 2012, and in response

to subsequent 2012 and 2013 Secretary of State Audits.

“2. There was no process established regarding the CEO

annual performance review and compensation adjustment,

no collaborative venue to set goals, discuss progress or

share Council expectation. The Executive Committee does

not recognize the position classification nor salary range

resulting from the agency Classification and Salary study.

“3. The Chair has declined any suggestion to invest time

to improve governance practices either through a retreat,

work session or board training event.

“4. The Executive Committee and Vice Chair in particu-

lar, are eliminating a Roles and Authority document estab-

lished early last year which outlines duties of the Policy

body and the CEO.

“5. The Chair, without approval of the Council, intro-

duced and got passed legislation that changed the quo-

rum requirement anticipating a reduction in the number

of Council members from 11 to 9 to be introduced in 2015.

This has been problematic for Council meetings and set up

the Executive Committee as a majority voting block on the

Council.

“6. The Executive Committee is currently out of compli-

ance with current Council operating procedures, and stat-

ute regarding roles and authorities.

“7. The Chair has delayed updating the Council Operating

Procedures since May of 2012.

“8. The Chair and Executive Committee are not involving

the Council at large in making agency decisions and are

directing staff on administrative matters.

“9. There remains a question of potential conflict of

interest and at a minimum perceived issue of fairness of

the Chair and Vice Chair based on their professions as

lobbyists for transportation clients and the Vice Chairs

444 Walker v. Oregon Travel Information Council

involvement in a lawsuit against the state with regard to

the DAS portal fee.

“10. We have not been operating with a full Council. The

Chair has determined and shared with Council the intent

to reduce the number of members on the board which will be

addressed in the 2015 Legislative session by holding off of

on [sic] filling vacancies. This has resulted in the Executive

Committee having a majority of votes on key matters.

“11. The Chair and Executive Committee have violated

public meeting law.

“12. The Executive Committee are attempting to micro-

manage agency operations under the guise of ‘broad direc-

tion’ without Council authority directing how the salary

structure should be changed and how employees will be

rated on performance evaluations without regard to the

Classification and Salary study. They do not recognize the

authority of the CEO per statute regarding these matters.

“13. The Chair and Executive Committee are giving direc-

tion to the CEO and Executive Administrative Leadership

with shifting demands resulting in having to set aside

important work on daily operational matters, framing an

Amended Budget, completing the Strategic Plan document

and preparing a packet for the May 20th Council meeting.

“Over the past three weeks this has escalated to the point

that intervention is needed to prevent the agency from

moving further into conflict, to reduce organizational risk

and to mitigate the potential for unnecessary public expo-

sure or employee litigation. [redacted sentence]

“I am deeply saddened by the situation. As an elected [sic]

official and representative of the public trust, my ethics and

background in public governance prevent me from being a

party to or condoning to these actions. I am unwilling to

support the direction of the Executive Committee without

the involvement of the entire Council, their willingness to

adhere to statute and public meeting law, and operate in a

transparent and accountable manner.”

Plaintiff did not send a copy of her memorandum to the

Council.

At the May 20, 2014, meeting of the Council, the

executive committee recommended and the Council approved

Cite as 299 Or App 432 (2019) 445

changes to the Council’s procedures that clarified the

Council’s supervision of the budget and agency policy. Plain-

tiff presented the Council chair with a report delineating

her own view of the respective roles of the Council and the

director. The Council chair did not react favorably to that

report, and the executive committee declined to present it to

the Council for a vote.

The Council’s September 2014 meeting was unevent-

ful. The Council adopted a strategic plan. After that meet-

ing, the Council chair requested a meeting with plaintiff

and the full council on October 1, and plaintiff attended

with her leadership team. After presentations by staff, the

Council chair recited a list of concerns relating to plaintiff’s

performance. The list included concerns about plaintiff’s

relationship with the executive committee. The chair also

expressed a concern about plaintiff’s failure to disclose her

familial relationship with Wyland. At plaintiff’s request, a

full Council meeting was scheduled for October 22, 2014, to

allow plaintiff time to respond.

At the October 22 meeting, plaintiff made a power-

point presentation responding to each of the concerns raised

by the Council chair. The meeting then adjourned to execu-

tive session and, on the executive committee’s recommenda-

tion, on a five to three vote, the Council terminated plain-

tiff’s employment immediately.

Plaintiff brought this action, asserting in her common-

law wrongful-discharge claim that she was fired for ful-

filling an “important public duty”—opposing the Council’s

“illegal” conduct and advocating for the Council’s adherence

to governance best practices. The alleged illegal conduct

was the convening of the March 2014 executive committee

meeting without the required public-meeting notice and the

Council’s interference with plaintiff’s management of the

agency in violation of her statutory authority to adminis-

ter the Council. Plaintiff asserted that her April 8, 2014,

report to Jordan and her consultation with Department of

Justice relating to the respective roles of the Council and

director constituted protected “whistleblowing” under ORS

659A.203, which she contended was an important public

duty. The Council presented its reasons for terminating

446 Walker v. Oregon Travel Information Council

plaintiff’s employment, which plaintiff contended were pre-

textual. The Council chair testified that, in April 2014, she

had received a call from the Governor’s office telling her

that plaintiff had complained to Jordan, but that she did

not inquire further as to the nature of the complaint. Based

on that evidence, plaintiff asserted that she had been ter-

minated in October for having made the report to Jordan

in April.

The Council sought a directed verdict on the wrongful-

discharge claim. The trial court denied the motion, and a

jury found for plaintiff and awarded her damages. The

Council assigns error to the trial court’s denial of its motion

for directed verdict. In reviewing the trial court’s ruling, we

consider the evidence in the light most favorable to plaintiff

to determine whether there is any evidence to support the

elements of the claim. Brown v. J. C. Penney Co., 297 Or 695,

705, 688 P2d 811 (1984) (a jury verdict will not be set aside

unless there is no evidence from which the jury could have

found the facts necessary to support the verdict).

The general rule in Oregon is that, in the absence

of a contract, statute, or constitutional provision to the con-

trary, an employee may be discharged without notice and for

any reason or no reason at all. Nkrumah v. City of Portland,

261 Or App 365, 372, 323 P3d 453 (2014). There are,

however, exceptions to the general rule. For example, an

employee’s discharge may be actionable when the employee

is discharged for fulfilling an important public duty or soci-

etal obligation. Babick v. Oregon Arena Corp., 333 Or 401,

407, 40 P3d 1059 (2002); Delaney v. Taco Time Int’l., 297 Or

10, 681 P2d 114 (1984). In determining whether an employee

has been discharged for fulfilling an important public duty

or societal obligation, courts are to review statutes and

other sources of authority to determine whether there is

a “substantial public policy” that would be thwarted if the

employer were allowed to discharge the employee without

liability. McManus v. Auchincloss, 271 Or App 765, 771-72,

353 P3d 271, rev den, 358 Or 145 (2015). Plaintiff alleged

that she was wrongfully discharged for fulfilling just such

an important public duty in providing her April 8, 2014,

report to Jordan.

Cite as 299 Or App 432 (2019) 447

The Supreme Court has held that the act of filing

a report to authorities about certain wrongdoing by an

employer can constitute the exercise of an important public

duty or societal obligation that will give rise to an exception

to the general rule of at-will employment. Lamson v. Crater

Lake Motors, Inc., 346 Or 628, 640, 216 P3d 852 (2009). In

Love v. Polk County Fire District, 209 Or App 474, 492, 149

P3d 199 (2006), we held that ORS 659A.203(1), which pro-

hibits disciplinary action against certain public employee

whistleblowers, is a statutory source of the important public

duty to report government wrongdoing that can support a

common-law wrongful-discharge claim. See also McManus,

271 Or App at 773-74.

But not every report of employer wrongdoing by a

public employee will fit within that exception as fulfilling an

important public duty, and we conclude that plaintiff’s report

to Jordan did not. To be protected from discipline for report-

ing wrongdoing, the plaintiff must have had an “objectively

reasonable belief” that the reported conduct violated statu-

tory or regulatory requirements. Love, 209 Or App at 492.

Whether plaintiff had an objectively reasonable belief is a

question of law for the court. See Miller v. Columbia County,

282 Or App 348, 358-59, 385 P3d 1214 (2016), rev den, 361

Or 238 (2017) (in a civil action for false arrest and mali-

cious prosecution, reviewing as a question of law whether

the police officer had an objectively reasonable belief that

the plaintiff had committed a crime). With the exception of

the alleged Public Meetings Law violation and the Council’s

alleged noncompliance with statutory “roles and authori-

ties,” plaintiff’s complaints described differences of opinion

between plaintiff and the Council concerning governance

and “best practices.” Disagreements about governance and

“best practices” that do not implicate violations of the law,

however, do not fall within the public-duty exception. See

Love, 209 Or App at 493-94 (complaints based on “holistic

concerns” that were not grounded in applicable statutes or

rules cannot be deemed to have furthered some important

public duty).

Plaintiff’’s complaint to Jordan relating to “roles

and authorities” had as its source the Council’s rejection of

448 Walker v. Oregon Travel Information Council

plaintiff’s proposed salary structure for the agency. The only

evidence at trial was that the Council rejected plaintiff’s

proposed salary structure because it did not comply with the

Council’s direction that the salary structure be within the

Council’s existing budget and not top heavy, and that plain-

tiff’s salary as approved by the Council be the top of the pay

scale. Because it is undisputed that the Council, not plain-

tiff, had responsibility for oversight of the Council’s budget,

for the establishment of agency policy, and for setting plain-

tiff’s salary, it was not objectively reasonable for plaintiff to

believe that the Council’s rejection of a salary structure that

was not approved by the Council before it was implemented,

and that was not within the existing budget or consistent

with plaintiff’s approved salary, was a violation of the law.

Further, although we have held that, as a statutory

source for an important public duty, ORS 659A.203 can sup-

port a common-law wrongful-discharge claim, Love, 209 Or

App at 492, not every report of employer wrongdoing will

rise to the level of fulfilling an important public duty as an

exception to the general rule of at-will employment. As we

said in Love, the whistleblowing had to be “objectively rea-

sonable.” Id. Necessarily, the nature of the alleged wrong-

doing and the circumstances of the reporting are relevant

to whether the specific report of wrongdoing is objectively

reasonable and protected because it fulfills “some substan-

tial public duty” or “enjoys high social value.” Id. at 486-87.

For the reasons explained below, we conclude that plaintiff’s

report to Jordan relating to the Council’s violation of the

Public Meetings Law is an example of a report that does not

fulfill a substantial public duty.

Plaintiff was aware that, as the agency’s director,

it was her responsibility to send meeting notices. She did

not expect Council members to know when notices were

required. She knew that the March 12 meeting needed to

be noticed, but she nonetheless did not correct the Council

chair’s misapprehension about that and did not send notice,

because, she testified, she served at the Council’s pleasure.

Before plaintiff’s April 8 report to Jordan, the Council cor-

rected the deficiency for future executive committee meet-

ings, and gave notice of every subsequent executive commit-

tee meeting, including a meeting on April 3. The undisputed

Cite as 299 Or App 432 (2019) 449

evidence does not support an inference that plaintiff had an

objectively reasonable belief that she would have suffered

an adverse employment consequence had she advised the

Council chair that notice was required for the March 12

meeting. Nor does the record support an inference of an objec-

tively reasonable belief that the report to Jordan was neces-

sary to bring the Council into compliance with the Public

Meetings Law. Those circumstances also lead us to conclude

that plaintiff’s report to Jordan did not fulfill a “substantial

public duty” for purposes of the wrongful-discharge claim.

We conclude for those reasons that the trial court erred in

denying the Council’s motion for a directed verdict on plain-

tiff’s common-law wrongful-discharge claim.

As noted, plaintiff assigns error on appeal to the

trial court’s failure to grant her judgment on her statu-

tory wrongful-discharge claim, ORS 659A.203. In her first

assignment, plaintiff contends that the court erred in reex-

amining the jury’s findings on plaintiff’s common-law claim.

In light of our conclusion that the jury should not have been

allowed to consider plaintiff’s common-law claim, we reject

the first assignment.

In her second assignment, plaintiff asks this court

to review de novo the trial court’s ruling on the statutory

wrongful-discharge claim and to reverse the trial court’s

judgment dismissing the claim on that basis. We decline to

do that, as this case does not present an exceptional circum-

stance. See ORAP 5.40(8)(c).

Affirmed on appeal; on cross-appeal, judgment for

plaintiff reversed.