Davis v. Wasco Intermediate Education District

583 P.2d 1151, 36 Or. App. 3, 1978 Ore. App. LEXIS 1771
CourtCourt of Appeals of Oregon
DecidedSeptember 6, 1978
DocketCA 9985
StatusPublished
Cited by4 cases

This text of 583 P.2d 1151 (Davis v. Wasco Intermediate Education District) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Wasco Intermediate Education District, 583 P.2d 1151, 36 Or. App. 3, 1978 Ore. App. LEXIS 1771 (Or. Ct. App. 1978).

Opinion

SCHWAB, C. J.

Petitioner was employed by The Dalles School District No. 12 as a permanent teacher, i.e., tenured. She taught "special education” classes, i.e., a program for mentally handicapped children. School District No. 12 abolished its special education program and, by agreement with Wasco Intermediate Education District, transferred responsibility to provide special education classes to the IED.1 Petitioner then became a special education teacher for the IED. After two school years with the IED, petitioner’s contract was not renewed.

Petitioner appealed to the Fair Dismissal Appeals Board, contending she retained the permanent teacher status she enjoyed with School District No. 12 upon being transferred to the IED, and thus could only be dismissed for cause. The Board ruled to the contrary. We reverse.

Petitioner relies upon ORS 236.610, which 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 * * *.
* sf: * »

ORS 236.620(1) and (3) provide:

"A public employer who receives a transferred employe under subsection (1) of ORS 236.610, including [6]*6an 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 requirement of the transferee employer.
"(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.”

The parties agree that the IED "assumed or acquired” the duties of petitioner’s employment within the meaning of ORS 236.610. The parties agree that, if applicable, ORS 236.610 and 236.620 provide that a permanent teacher who is transferred from one district to another retains his or her job security. The IED’s sole contention is that, despite the broad definition of "public employe” in ORS 236.610(2), this statutory scheme is not applicable to teachers.

Five arguments are advanced in support of this conclusion. The first relies upon District Court v. Multnomah County, 21 Or App 161, 534 P2d 207 (1975). That case involved the question of the employment rights of the court administrator of the Portland Municipal Court when it merged with the Multnomah County District Court. We stated in part: "An employe who never had civil service status is not within the protection of ORS 236.610.” 21 Or App at 165. The Fair Dismissal Appeals Board relied on this one sentence to conclude that ORS 236.610 is inapplicable to teachers because they are not civil servicesmployes. In context, however, the quoted sentence only meant that a public employe without statutory job protection before being transferred remains in the same status after being transferred, i.e., that since the court administrator did not have statutory job protection as a city employe before being transferred, he did not have statutory job protection as a county employe after being transferred.

[7]*7The second argument is a variation on the first. The IED relies upon the part of ORS 236.610(1) which states that transferred employes do not have to take "further civil service examination,” and argues that since teachers never take any form of civil service examination, the statutory scheme must be inapplicable to teachers. This phrase, however, can be reconciled with the balance of the statute which by its plain terms is applicable to teachers by reading it to mean: without having to go through further steps necessary to acquire statutory job protection.

Third, the IED relies upon the part of ORS 236.630(3) which states if "the transferee employer finds that no position exists, the employe shall be listed as a regular laid-off employe,” and argues that since school districts are not required to maintain lists of laid-off teachers, the statutory scheme must be inapplicable to teachers. This clause, however, can be reconciled with the balance of the statute by reading it to mean: a transferred employe with statutory job protection who is laid off by the transferee employer for the reason stated in ORS 236.630(3) must be given priority when the transferee employer subsequently hires new employes. Cf. ORS 240.315.

We are not rewriting ORS 236.610 et seq. We interpret the statutes as expressing the broad policy that public employes whose duties are transferred from one public employer to another generally retain the same employment rights after being transferred. We are aware that the various statutory job protection schemes vary between state and local government, and vary between different local governments. See Papadopoulos v. Bd. of Higher Ed., 14 Or App 130, 156-62, 511 P2d 854, rev den (1973), cert den 417 US 919 (1974). Indeed, the term "civil service examination” does not appear in the state merit system law. See ORS 240.330 ("the administrator shall from time to time conduct entrance tests and promotion tests”).

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Related

Atlantic Richfield Co. v. Workers' Compensation Appeals Board
644 P.2d 1257 (California Supreme Court, 1982)
Davis v. Wasco Intermediate Education District
593 P.2d 1152 (Oregon Supreme Court, 1979)
Davis v. Dalles School District
586 P.2d 397 (Court of Appeals of Oregon, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
583 P.2d 1151, 36 Or. App. 3, 1978 Ore. App. LEXIS 1771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-wasco-intermediate-education-district-orctapp-1978.