Federation of Parole & Probation Officers v. State Ex Rel. Oregon Department of Corrections

RIGGS, P. J.,

concurring.

Although I concur in the majoritys holding that there is no Contracts Clause violation in this case, I write separately to express my differing view regarding the manner in which claims such as plaintiffs’ should be analyzed. In particular, I believe that the presence of an ambiguity in ORS 236.610(1) requires that we resort to the legislative history that underlies that statute, to determine whether the legislature intended to create a contract with public employees. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611-12 , 859 P2d 1143 (1993). However, having examined all of the relevant legislative history and having found no evidence that the legislature did intend to create a contract when it enacted ORS 236.610(1), I concur in the result reached by the majority.

My analysis of ORS 236.610(1) begins with the text of the statute. Its terms are clear and emphatic: “No public employee shall be deprived of employment solely because the duties of employment have been assumed or acquired by another public employer[.]” However, the second sentence of the statute, which begins with the phrase “Notwithstanding any statute, charter, ordinance or resolution,” could refer only to its “no further civil service exam” provision or it could refer to both that provision and the promise of transfers, contained in the first sentence. It is unclear which meaning the legislature intended. 1

*544 An examination of the context of ORS 236.610(1) requires a review of the two cases that have directly interpreted it. The first, Dist. Ct. v. Multnomah Co., 21 Or App 161 , 534 P2d 207 (1975), presented the question of whether a discharged public employee who had not taken a civil service exam before his hiring could appeal his discharge from employment and be reinstated by the Multnomah County Civil Service Commission. We held that that body was without jurisdiction to order the employee’s reinstatement, because although his name had been accidentally listed among the names of civil servants who were transferred when the Portland Municipal Court was merged with the Multnomah County District Court, he had not in fact acquired civil service status during the time that he was employed by the municipal court. We wrote:

“This process of submitting the names of civil service employees from one governmental unit to the civil service commission of another governmental unit for automatic induction into that governmental unit’s civil service system is known as ‘blanketing in’ and is apparently done under authority of ORS 236.610(1): [statute quoted in full]. The import of this statute is clear. A civil service employee covered under the statute and transferred to another governmental unit shall be so transferred ‘without further civil service examination.’ An employee who never had civil service status is not within the protection of ORS 236.610.” Id. at 164 (emphasis in original).

Thus, the statute was interpreted in Dist. Ct. v. Multnomah Co. as little more than a provision that obviated further civil service exams for transferees. Although the facts of the case presented no basis for analyzing the transfer provision itself, the opinion points to yet another plausible interpretation of the statute, viz.: Its applicability could be limited to those situations in which a public employer has improperly required one of its transferred-in employees to retake a civil service exam. Indeed, if the first sentence of the statute (“No public employee shall be deprived of employment solely because the duties of employment have been assumed or acquired by another public employer”) is read as a mere preface to the second sentence (“the public employee shall be transferred * * * without further civil service examination”), or if the *545 ostensibly broad promise of the first sentence is viewed as being strictly qualified by the second, one could conclude that ORS 236.610(1) does no more than assure transferred civil servants that they will not lose their jobs if they fail the civil service exam upon transfer, because their "new public employer cannot require them to retake that exam.

In the only other appellate opinion that has interpreted ORS 236.610, Davis v. Wasco IED, 286 Or 261, 263 , 593 P2d 1152 (1979), the Supreme Court described the statute as one “which grant [s] a certain measure of job security to a ‘public employe’ when the duties he or she performs are assumed by another governmental agency.” Although that opinion focused almost entirely on the definition of “public employe,” contained in subsection (2) of the statute, 2 and engaged in no direct discussion of subsection (1), Davis is nonetheless noteworthy because of its examination of legislative history:

“ORS 236.610 to 236.650 were enacted in 1963 at the urging of the AFL-CIO (See Minutes, House Committee on Local Government, March 26, 1963, Discussion of HB 1474), and were designed to guarantee certain rights to employes of a governmental agency when their functions or duties were transferred to another governmental agency on the merger[ 3 ] of those two agencies.” (Emphasis supplied.)

The court agreed with the defendant’s following characterization of the legislature’s “focus” in enacting those statutes:

“ ‘[T]he legislators were addressing problems caused by the various civil service laws. They were concerned with (1) Civil Service Law restrictions which would preclude the acquiring government from installing acquired employees anywhere but “the bottom of the pile” and, conversely, *546 (2) civil service restrictions which would inhibit demoting or laying off acquired employees where no comparable position is available after the acquisition.’ ” 286 Or at 269 .

There is a considerable amount of legislative history that was not discussed in the Davis opinion, no doubt because the court’s interest in the history of the statute was limited to the fact that public school teachers were neither mentioned by, nor represented before, the relevant legislative committees. Id.

In sum, neither the text nor context of ORS 236.610 provides assistance in determining whether the statute was intended to create a contract. Accordingly, we must turn to the legislative history. PGE v. Bureau of Labor and Industries', see also Oregon State Police Officers’ Assn. v. State of Oregon, 323 Or 356, 405 , 918 P2d 765 (1996) (Gillette, J., concurring and dissenting in part) (critizing majority for failing to acknowledge PGE’s methodology in resolving a Contracts Clause claim).

It is at this juncture that I part company with the majority, whose holding I would summarize as follows: Given that a Contracts Clause violation will be found only if ORS 423.549 (Senate Bill 1145) impaired the state’s obligations under the alleged statutory contract, and given that that contract must have been created by a statute that unambiguously expresses the legislature’s intention to create a contract, we need only determine whether the plain language of the statute clearly expresses such an intent. Because it does not, plaintiffs lose.

I agree that, to decide whether Senate Bill 1145 violates the Contracts Clause of the Oregon Constitution, we are guided by the rule that no statutory contract will be “inferred from legislation that does not unambiguously express an intention to create a contract.” Hughes v. State of Oregon, 314 Or 1, 17 , 838 P2d 1018 (1992). 4 The portion of that rule that *547 refers to unambiguous expression understandably gave rise to the majority’s analysis, which essentially states that ambiguity exists if there is more than one plausible interpretation of the statute, holds that two such interpretations exist here, and concludes that the statute therefore is not an unambiguous expression of the legislature’s intent to create a contract. One can hardly quarrel with such an analysis.

However, I am troubled by the fact that no previous Contracts Clause case has been decided in that manner. The court has never been faced with a statute that on its face expressed the legislature’s intention to create contractual obligations for the state. 5 It has always examined the legislative history in order to determine the existence of such intention. Therefore, I, too, would look to the history underlying ORS 236.610(1).

As originally drafted in 1963, House Bill 1474 (subsequently enacted as ORS 236.610) provided:

“Relating to transfer of employes between governmental units entering into intergovernmental cooperation contracts.

“Section 1. Whenever local governments or public corporations have entered into agreement pursuant to ORS 190.010 or 190.110, the governing bodies may provide, notwithstanding any limitation of charter or statute, that the employes of one contracting party may be transferred to positions under the other contracting party without further civil service examinationf.]” (Emphasis supplied.) Exhibits, HB 1474, House Committee on Local Government, 1963.

*548 Two witnesses testified before the House committee to which the bill had been referred. The first, then-Mayor of Portland Terry Schrunk, discussed the importance of cities and the counties in which they are located taking steps to consolidate or at least not duplicate services such as crime labs and health services. He testified that if Portland annexed a fire district or a water district, HB 1474 would ensure that “these people’s jobs are taken care of. Should there be a combination of services, whether it should be in police service, planning or what [ever] it might be, if these people are under Civil Service, their jobs will be protected as they are in the county government or city government.” (Emphasis supplied.) Minutes, House Committee on Local Government, March 26,1963.

Two bills — HB 1474 and HB 1595 — were then consolidated in a manner that, according to the chair of the House committee, “amounts to a compromise bill.” Minutes, House Committee on Local Government, March 26, 1963, at 5 (statements of Chairman Bateson). The second witness to come before the committee, Dick House of the AFL-CIO, then testified as follows:

“I might say that [HB 1474 and 1595] are our bills. As you know, there is a great deal going on in the way of annexation, consolidation, etc., and we as representatives of employes are concerned with the employes themselves as to what treatment they will receive. The two bills before you deal with (1) Contracts and (2) Annexation and Consolidation.”

Id. at 6 .

Thereafter, HB 1595 was tabled and the committee proceeded with HB 1474 — the bill described by the AFL-CIO representative as “dealing] with” contracts. The committee recommended that HB 1474 pass, but with substantial amendments: It placed a period after the word “units,” in the first paragraph, and struck the remainder of that sentence. It then struck all of the second paragraph except the words “Section 1,” and replaced the deleted text with the following:

“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 *549 present employer is involved. Notwithstanding any statute, charter, ordinance or resolution, but subject to sections 2 to 5 of this Act, the public employe shall be transferred to the public employer who assumed or acquired his duties, without further civil service examination.” Minutes, House Committee on Local Government, April 2,1963.

Except for later changes that made the language gender-neutral, that is essentially the form in which we find ORS 236.610(1) today.

As the legislative history shows, House Bill 1474 was transformed from one that explicitly focused on giving public employers discretion to transfer employees between themselves without further civil service examination, to one that directed employers to do so. But the legislative record available seems to show that the committee members who approved those amendments appear to have paid little attention to or placed little emphasis on the meaning of the “No public employee shall be deprived of employment” language, focusing instead on subsections 2 through 5 of the bill, which delineate the terms of transferred employees’ salaries, health plans, vacation and sick leave.

“CHAIRMAN: The problem is that in one place you have Civil Service. The heads of the city of Portland can’t negotiate away these Civil Service rights, so they can’t give the employes of this unit they are merging with, any rights. They don’t have a right to give away [sic] to them. This law would say that they do have the right to mesh these two groups; otherwise the outfit being taken over would go to the bottom of the pile.

“WHELAN: This would take care of the provision also, if you didn’t have a position for the employe. You could assign him in a lesser capacity, and then he would be like on a ‘laid off list and would have priority on a future vacancy, which they certainly don’t now.

“CHUINARD: Is it going to force the group to absorb all of these [employees]?

“CHAIRMAN: No, this is not enforcement.

‘WHELAN: They have to have qualifications, first of all. And then such position as is available; that’s why this other amendment was put in there.

*550 “CHAIRMAN: They don’t have to hire them. We had another bill in that would have required them to hire them, but that’s not this one.

“BONESTEELE: Just for clarification, my position would be if the City of Salem was going to annex Four Corners and they had Ted Miller out there, the Fire Chief, he would certainly be integrated into the Civil Service or whatever, wouldn’t he?

“WHELAN: Not as a Fire Chief.

“BONESTEELE: Not as a Fire Chief, but something comparable, and he might get more money than being Fire Chief.

“CHAIRMAN: He would be integrated as a Captain. The problem is where you are trying to merge two units and cut down your staff; County and City Health Department, for example.

* * * *

“CHAIRMAN: If we don’t do this, you can never save money by one of these [merger] agreements, because you have to keep all the same people. This would allow you to cut down your staff.” Minutes, House Committee on Local Government, April 2,1963. (Emphasis supplied.)

To the extent that any uncertainty as to the focus of the bill remains, it is cleared up by the testimony of AFL-CIO spokesperson Dick House before the Senate Committee on Local Government:

“The bill [HB 1474] provides that whenever one governmental unit assumes the functions of another governmental unit, that they will also be charged with the responsibilities of the employes of the unit from whom they received the functions from. However, you will find that the bill does give the transferee employer a great latitude in handling the employes of this new unit. It says that they will place them on their roster but it is subject to the following: If the employe was serving a probationary period at the time of transfer, his past probation shall apply to the regular probation requirements of the transferee employer. The employe can participate in the pension system of the transferee employer, providing he can meet the qualifications. *551 Also, it gives the transferee employer the right in determining the comparable position to consider the employe’s education, physical qualifications, experience, salary, and duties and responsibilities of his prior employment. In other words, this gives the new employer a great latitude in figuring out how to place these employes. It also says that if the transferee employer can find no comparable position then [it] can offer a lesser position to the transferred employe only if such position is available. If there is no such position available then this employe would go on the regular laid off list of the transferee employer. In the last section the bill provides that at the end of a cooperation agreement the employe shall be entitled to his position with the transferring employer prior to transfer if he has remained an employe of the transferee employer in good standing to the termination of the agreement. The bill does not guarantee anybody employment whatsoever, but it does give the cities a great deal of latitude which they really need in regards to this situation.” Minutes, Senate Committee on Local Government, April 16,1963, at 5-6. (Emphasis supplied.)

In sum, the focus throughout the legislative proceedings was on the ease with which public employers could incorporate civil service employees into their workforces. The statute does contain clear language requiring transfers, but that alone is not enough to save it from amendments by future legislatures. It is possible that the AEL-CIO intended HB 1474 to be a bill that would create a contractual obligation on the part of the state, but if that was the goal, it, and the legislature, needed to make that goal considerably clearer than is evidenced by the testimony quoted herein. Having found no persuasive evidence of legislative intention to create a contract by virtue of its enactment of ORS 236.610, I concur with the majority’s holding that no statutory contract was impaired by the legislature’s subsequent enactment of Senate Bill 1145.

I find no relevance in the fact that the statute does not also say that it applies “Notwithstanding any past, present or future statute,” because no previous case has viewed that sort of language as necessary for the establishment of a Contracts Clause violation and because the plain language of the statute commands that public employees shall not lose their jobs in the very circumstances that are presented by this case: The state has chosen to no longer perform parole and probation officer work; those duties — and the funds necessary to carry them out — are being transferred to the counties.

The court found an ambiguity in the statute’s definition of “public employe” as applied to the plaintiff, a school teacher, because elsewhere in the statutory scheme there are references to merit system procedures and civil service exams, neither of which are applicable to school teachers. 286 Or at 267-68 . The court ultimately held that the transfer provision of ORS 236.610, with its reference to “public employe [s],” does not apply to school teachers.

Although the court referred only to mergers, because that was the underlying event in Davis , the statute makes plain that it applies to all transfers between public employers, “whether or not an agreement, annexation or consolidation with the present employer is involved.” ORS 236.610(1).

However, I strongly disagree with the majority’s conclusion that, because ORS 236.610 contains no “explicit statutory language specifically prohibiting future amendment or repeal,” it does not create a contract. The Supreme Court has never imposed such a requirement. Rather, relying on Eckles v. State, 306 Or 380, 391 , 760 P2d 846 (1988), appeal dismissed 490 US 1032 (1989), the court has repeatedly and recently stated the familiar test for statutory contracts: “ ‘a state contract will not be inferred from legislation that does not unambiguously express *547 an intention to create a contract[.]’ ” Stovall v. State of Oregon, 324 Or 92, 111 , 922 P2d 646 (1996) (quoting Hughes).

In Hughes , the statute referred to the “right” of a person to money accrued under the PERS program and stated that such money would be exempt from taxes “heretofore or hereafter” imposed. The court did not need to determine the existence of a contract, because previous cases had established that PERS is a contract between the state and its employees. However, despite that fact, the court examined the relevant legislative history and found that it “reveals an underlying legislative intent to create contract rights in PERS employees.” 314 Or at 18 . In other words, it would appear that an “underlying” intent can suffice when no “express” intent is manifested in the language of the statute. In Eckles , the statute provided that the state disclaimed any right to reclaim funds paid into the Industrial Accident Fund and that those funds would be used exclusively for purposes declared by the workers’ compensation statutes. Again, the court found a statutory contract.