Sullivan v. Kizer

839 P.2d 227, 115 Or. App. 206, 141 L.R.R.M. (BNA) 2261, 1992 Ore. App. LEXIS 1734
CourtCourt of Appeals of Oregon
DecidedSeptember 16, 1992
DocketCV90-063; CA A67063
StatusPublished
Cited by4 cases

This text of 839 P.2d 227 (Sullivan v. Kizer) 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
Sullivan v. Kizer, 839 P.2d 227, 115 Or. App. 206, 141 L.R.R.M. (BNA) 2261, 1992 Ore. App. LEXIS 1734 (Or. Ct. App. 1992).

Opinions

[208]*208WARREN, J.

Plaintiff appeals a judgment dismissing his claim for misapplication of public funds under ORS 294.100(2) for failure to allege facts sufficient to constitute a claim for relief. ORCP 21A(8). We affirm.

Plaintiff alleges that he is a property owner and registered voter in McMinnville School District No. 40 (District), has children in a school administered by District and pays taxes for support of District’s schools. Defendants are public officials who are members of the District School Board (Board). District’s school teachers are represented by the Mid-Valley Bargaining Council (MVBC). In February, 1990, MVBC called a strike by District’s teachers. During the strike, District hired teachers to substitute for the striking teachers. The amended complaint also alleges, in part:

“7. Defendants proceeded to knowingly employ and to pay from public tax funds the salaries and expenses of numerous persons who were professional strikebreakers and illegal employees under ORS 662.205 to 662.225. Defendants knowing [sic] and intentionally paid several thousand dollars of public tax money to these employees for their salaries and expenses during the MVBC strike.
“8. Defendants’ purpose in hiring or offering to hire and in paying these funds to the illegal employees was to assist the District in its effort to defeat the MVBC strike through the employment of professional strikebreakers, all in violation of ORS 662.205 to 662.225. Oregon law forbids the hiring of such employees and does not authorize the payment by defendants from public tax funds of the salaries and expenses of such employees.
“9. By knowingly and intentionally paying thousands of dollars of public tax money to these employees, whose hiring was forbidden by law, and whose payment for services is not authorized by law, defendants have misapplied substantial amounts of public tax money, for which defendants are liable under ORS 294.100.”

A motion under ORCP 21A(8) admits the well-pleaded allegations of fact in the complaint. We determine only whether those facts are sufficient to state a claim. Keltner v. Washington County, 310 Or 499, 502, 800 P2d 752 (1990). Our inquiry is whether plaintiffs allegations state a claim under ORS 294.100, which provides, in part:

[209]*209“(1) It is unlawful for any public official to expend any money in excess of the amounts, or for any other or different purpose than provided by law.
“(2) Any public official who expends any public money in excess of the amounts, or for any other or different purpose or purposes than authorized by law, shall be civilly liable for the return of the money by suit of the district attorney of the district where the offense is committed, or at the suit of any taxpayer of such district.”

Plaintiff argues that, although District has the general statutory authority to hire teachers and “transact all business,” ORS 342.505 and ORS 332.072,1 it did not have authority to hire professional strikebreakers2 as substitute teachers because of ORS 662.215.3 Therefore, the payment for services of professional strikebreakers was an expenditure [210]*210of public money for a “different purpose than authorized by law” and is actionable under ORS 294.100(2).

Under ORS 662.215, employers are prohibited from knowingly employing a professional strikebreaker to replace an employee involved in a strike. Defendants contend that that statute is inapplicable, because public bodies and public officials are not “employers” as defined in ORS 662.205(2).4 If defendants are correct, they did not violate ORS 662.215 as alleged by plaintiff, even if they did hire professional strikebreakers.

Our role in construing a statute is to discern the intent of the legislature, ORS 174.020, beginning with the words of the statute. ORS 174.010; Whipple v. Howser, 291 Or 475, 479, 632 P2d 782 (1981). However, when those words do not provide sufficient insight into the legislature’s intent, they are ambiguous, and we must look beyond those words to divine that intent. Mattiza v. Foster, 311 Or 1, 4, 803 P2d 723 (1991). No matter how broad the apparent meaning of a statute may be, if we cannot tell whether the legislature intended a statute to apply in a particular context, we must resort to extrinsic aids to construction.

ORS 662.205(2) provides:

“ ‘Employer’ means any person, partnership, firm, corporation, association or other entity, or any agent thereof, that employs an individual to perform services for a wage or salary.”

That statute does not unambiguously include school districts and public officials within the definition of “employer.” A school district is not a person, firm, partnership, association or corporation. It is a school district or, more generally, a public body. Moreover, we cannot discern from the face of the statute whether the legislature considered school districts [211]*211and public officials to be “other” entities. To the contrary, the scope of the phrase “or other entity” is patently ambiguous.

The term “entity,” as defined in a dictionary, means anything “that has objective or physical reality and distinctness of being and character.” Webster’s Third New International Dictionary 758 (unabridged 1976). That definition is so broad that firms, partnerships, persons, corporations and associations fall within it. Logically, had the legislature intended the term “entity” to have such a broad meaning, it would not have included those specific types of entities within the definition of “employer.” Consequently, it must have intended the term “entity” to have a narrower scope.5

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City v. Dept. of Labor and Industries
965 P.2d 619 (Washington Supreme Court, 1998)
City of Seattle v. State
965 P.2d 619 (Washington Supreme Court, 1998)
Westwood Homeowners Ass'n v. Lane County
847 P.2d 862 (Court of Appeals of Oregon, 1993)
Sullivan v. Kizer
839 P.2d 227 (Court of Appeals of Oregon, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
839 P.2d 227, 115 Or. App. 206, 141 L.R.R.M. (BNA) 2261, 1992 Ore. App. LEXIS 1734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-kizer-orctapp-1992.