Lake County v. Teamsters Local Union 223

145 P.3d 187, 145 P.3d 237, 208 Or. App. 271, 2006 Ore. App. LEXIS 1477

• Court: Court of Appeals of Oregon
• Decided: September 27, 2006
• Docket: ERB UC-9-04; A126592
• Status: Published

Opinions

WOLLIIEIM, J.

Petitioner Lake County petitions for review of an order from the Employment Relations Board (ERB) holding that a Lake County employee, Nicky Alves, was not a “confidential employee” under ORS 243.650(6).¹ We affirm.

In February 2004, respondent Teamsters Local Union #223 (the union) filed a petition for clarification of the public employee status of Alves. The union contended that Alves, who was hired for the new position of associate finance director, should be included in the collective bargaining unit. In March 2004, Lake County filed an objection, arguing that the new position should not be included in the collective bargaining unit because “the position will be that of a ‘confidential employee.’ ” Lake County stated that its position was based on ORS 243.650(6) and prior rulings by ERB. Lake County’s objection concluded by requesting a hearing.

In June 2004, an administrative law judge (ALJ) conducted a hearing. At the beginning of the hearing, the ALJ identified the issue as whether the associate finance director was a “confidential employee.” Lake County made a brief opening statement:

“The case, from the point of view of Lake County is very straightforward and direct with regard to application of prior ERB rulings and principles. * * *

“It’s our position that [the associate finance director] role in collective bargaining is such that she is evaluating the positions and making recommendation on proposals to the union — to the board in union negotiations, that her confidentiality is not only necessary, but is clearly called for under prior ERB rules.”

(Emphasis added.)

In response, the union argued that merely handling confidential information was not sufficient to make a position a confidential employee under the statute. In addition, the union argued that there “must be a nexus to the collective bargaining process.” In support of its position, the union relied on OSEA v. Phoenix-Talent School District #4, 14 PECBR 776 (1993). The union argued that, in that case, ERB interpreted ORS 243.650(6) as requiring the following three-part test: (1) determine whether the employee being assisted formulates, determines, and effectuates management policies for collective bargaining; (2) determine whether the nature of that assistance being rendered involves collective bargaining matters; and (3) determine whether such assistance is a necessary duty of the asserted confidential employee, requiring exclusion from the collective bargaining unit to protect the employer from disclosure of strategies and proposals. Lake County did not object to the union’s description of the three-part test under ORS 243.650(6).

After taking testimony, the parties presented oral closing arguments to the ALJ. In its closing argument, Lake County discussed the three-part test and argued that applying the test to the facts of this case required ERB to conclude that the associate finance director position was an ORS 243.650(6) confidential employee position and thus should be excluded from the collective bargaining unit. Specifically, the county argued that the “assistance that she does provide has to be a necessary duty of hers.” (Emphasis added.)

In the August 10, 2004, proposed order, the ALJ determined that the associate finance director was not a confidential employee. The ALJ applied the three-part test that ERB had previously adopted in interpreting ORS 243.650(6). The ALJ concluded that the associate finance director met the criteria of (1) formulating, determining and effectuating management policies in the area of collective bargaining and (2) providing assistance regarding collective bargaining matters. However, the ALJ concluded that it was not necessary that the associate finance director provide such assistance, explaining:

“We have previously determined that an employee who occasionally compiles collective bargaining data was not a confidential employee, especially when there is another confidential employee who can perform the same work. We have also decided that being a backup to a confidential employee is not a basis for exclusion from the bargaining unit. Nor will we deem as confidential an employee who assists in costing bargaining proposals when the work could be performed by a confidential employee.

“Historically, the finance director has provided financial assistance to the County commissioners and bargaining team. Because of problems experienced with the previous finance director, the commissioners wanted an additional person as back up to the finance director. Although we understand the County’s reason for wanting two financial specialists, either of whom can perform all of the required financial duties, we do not find that it is necessary that [the associate finance director] provide this assistance. Nor is it necessary to exclude both employees as confidential. Therefore, we conclude, that the associate finance director is not a confidential position and is not excluded from the bargaining unit.”

(Emphasis in original; citations omitted.)

Pursuant to OAR 115-010-0090,² on August 24, 2004, Lake County mailed its objections to the proposed order; however, those objections were not timely filed.³ Lake County requested that ERB accept its objections even though they were not timely filed. ERB denied Lake County’s request to extend the filing deadline and refused to consider the objections. Having refused to consider Lake County’s objections, ERB, on September 10, 2004, adopted, verbatim, the proposed findings and issued a final order from which Lake County now petitions for judicial review.

On review, Lake County argues that ERB erred by “exceeding] its agency authority by adding a vague, non-statutory requirement to the definition of ‘confidential employee’ in ORS 243.650(6).” We understand Lake County to be raising two separate arguments on review.⁴ One argument is that ERB improperly added the word “necessary” to the definition of confidential employee in ORS 243.650(6) and that the addition of “necessary’ to ORS 243.650(6) violates principles of statutory interpretation. See ORS 174.010; PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). The second argument Lake County raises is that, by adding the word “necessary,” ERB made ORS 243.650(6) “impossibly and unconstitutionally vague.”

Before we consider Lake Countys two arguments, we must first address the union’s contention that Lake County failed to exhaust administrative remedies. The union argues that, because Lake County did not argue to the ALJ that ERB impermissibly added a term to ORS 243.650(6) and did not argue that ERB’s interpretation rendered the statute unconstitutionally vague, we cannot consider those arguments for the first time on judicial review. The union notes that both arguments were raised in Lake Countys objections to the proposed order but that Lake Countys objections were not considered by ERB because they were not timely filed. In addition, Lake County did not assign error to ERB’s failure to consider Lake Countys objections. For the above reasons, the union argues that Lake County did not exhaust its administrative remedies, and we are precluded from considering Lake Countys arguments.

We disagree with the union’s characterization of this issue as a failure to exhaust administrative remedies. “The doctrine of exhaustion [of remedies] applies when a party, without conforming to the applicable statutes or rules, seeks judicial determination of a matter that was or should have been submitted to the administrative agency for decision.” Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 661, 20 P3d 180 (2001). The exhaustion doctrine requires that the issues of the dispute be submitted to the administrative agency for consideration of the merits of the dispute. Trujillo v. Pacific Safety Supply, 336 Or 349, 368, 84 P3d 119 (2004).

Here, the union petitioned for clarification of the bargaining unit. Lake County’s March 2004 timely objections and request for a hearing satisfied the exhaustion of remedies requirement that the issue be submitted to ERB for a decision on the merits of the dispute. The county was not required to make a further objection — this time to the order proposed by the ALJ — in order to seek judicial review; its failure to make a further objection in a timely manner, therefore, does not mean that it failed to exhaust its administrative remedy.

However, merely because Lake County exhausted its administrative remedies does not mean that we can consider all of the arguments that Lake County raises on judicial review. Pursuant to ORAP 5.45(1), this court will not consider an error raised in an assignment of error unless that error was raised below.⁵ We next consider whether Lake County preserved the two arguments it raises on judicial review or whether the doctrine of invited error prevents our consideration of Lake County’s arguments.

Because it is easier to resolve, we first consider Lake County’s second argument on judicial review — that is, by adding the word, “necessary,” ERB made ORS 243.650(6) impossibly and unconstitutionally vague. The constitutionality of ORS 243.650(6) was not raised below. The first time that Lake County raised that argument was in its opening brief to this court.⁶ The rules of preservation apply on judicial review of final agency orders. Wahlgren v. DMV, 196 Or App 452, 457, 102 P3d 761 (2004). In State v. Riggs, 143 Or App , 923 P2d 683 (1996), rev den, 325 Or 247 (1997), the defendant argued that he preserved an argument under the Oregon Constitution by citing a specific section of that constitution, even though he made no separate arguments under the Oregon Constitution. On appeal, the defendant made specific arguments under the Oregon Constitution and the state objected, arguing that the defendant failed to preserve any state constitutional argument. We agreed with the state that the defendant failed to preserve any state constitutional argument:

“By merely citing to [the Oregon Constitution], while making an exclusively federal argument below, defendant did not clearly present the position he now takes on appeal. Furthermore, the state was denied the opportunity in the trial court to meet the state constitutional argument. See also State v. Hickmann, 273 Or 358, 360, 540 P2d 1406 (1975) (on appeal, case should be heard on same theory upon which it was presented in the court below * * *).”

143 Or App at 430 (emphasis in original). Etere, Lake County did not even cite any constitutional provision to either the ALJ or ERB. Therefore, Lake County did not preserve its argument that ORS 243.650(6) is constitutionally vague. Accordingly, we will not consider that argument on judicial review.⁷

It is a slightly closer question whether Lake County preserved its first argument on judicial review, namely, that ERB has improperly added the word, “necessary,” to the definition of confidential employee in ORS 243.650(6) and that the addition of “necessary” to ORS 243.650(6) violates principles of statutory interpretation. We conclude that we should not consider Lake County’s argument here because the county invited that purported error. The doctrine of invited error “provides that, if an appellant was actively instrumental in bringing about the error, then the appellant cannot be heard to complain, and the case ought not to be reversed because of it.” State v. Ferguson, 201 Or App 261, 269, 119 P3d 794 (2005) (internal quotation marks omitted). Early in its closing argument to the ALJ, the county noted that “the cases are clear to both sides” and establish several principles of law, one of which is that “the assistance that [a classified employee under ORS 243.650(6)] does provide has to be a necessary duty of hers.” The county thus was “actively instrumental” in bringing about ERB’s purported addition of the nonstatutory term “necessary” or “necessary duty” in its interpretation of “classified employee.” We hold, then, that the error, if any, was invited error. We decline, therefore, to consider the county’s argument on review.

In sum, we hold that Lake County did not preserve the error, if any, that ERB’s interpretation of ORS 243.650(6) was unconstitutionally broad, and that the county invited the error, if any, that ERB’s interpretation of that statute erroneously adds a nonstatutory term. We therefore do not consider those arguments on judicial review.⁸

Affirmed.

1 ORS 243.650(6) provides:

“ ‘Confidential employee’ means one who assists and acts in a confidential capacity to a person who formulates, determines and effectuates management policies in the area of collective bargaining.”

2 OAR 115-010-0090 provides, in part:

“The parties shall have 14 days from date of service of a Recommended Order to file specific written objections with the Board. Upon good cause shown, the Board may extend the time within which the objections shall be filed.”

3 OAR 115-010-0010(5) defines “Date of Filing” as the date of receipt by the board.

4 The concurrence identifies what it takes to be a third “separate position” by the county on appeal, 208 Or App at 280 (Edmonds, J., concurring), namely that, in the present case, ERB, without explanation, “applied a different formulation or legal test than had been applied by ERB in other cases,” id. at 283 (Edmonds, J., concurring), in violation of ORS 183.482(8)(b)(B). However, the county points to ERB’s purported inconsistent applications only to illustrate the seriousness of adding highly malleable “non-statutory elements,” such as the term “necessary duty,” to ORS 243.650(6). The county has not stressed ERB’s purported inconsistent applications in order to advance the separate argument that ERB abused its discretion by departing without explanation from a prior agency position or practice. Indeed, the county’s failure even to cite ORS 183.482(8)(b)(B) serves to strengthen that conclusion. The concurrence therefore mistakes the county’s strictly subsidiary point for an independent argument, if not for an independent assignment of error. That said, we add that were we to reach the merits of that purported argument we would agree with the concurrence that there is “no substantive difference between the ways in which ERB has formulated the applicable rule.” For the reasons stated in the text, however, we do not reach the merits.

5 ORAP 5.45(1) provides, in part:

“No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court * *

6 Although Lake County raised this argument in its August 2004 untimely objections to proposed order, those objections were neither accepted nor considered by ERB and are not a part of the record on review.

7 The concurrence agrees that Lake County did not preserve its argument that ORS 243.650(6) is unconstitutionally vague. 208 Or App at 280 (Edmonds, J., concurring).

8 The concurrence asserts that, by citing ORS 243.650(6) as the basis for excluding the associate finance director as a confidential employee, Lake County preserved the issue it raises on judicial review. 208 Or App at 283 (Edmonds, J., concurring). However, as discussed before, merely citing a statute does not preserve the argument that Lake County raises to us.