Vavrosky Maccoll Olson Busch & Pfeifer PC v. Employment Department

157 P.3d 312, 212 Or. App. 174, 2007 Ore. App. LEXIS 538
CourtCourt of Appeals of Oregon
DecidedApril 18, 2007
DocketU02802; A129210
StatusPublished
Cited by1 cases

This text of 157 P.3d 312 (Vavrosky Maccoll Olson Busch & Pfeifer PC v. Employment Department) 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
Vavrosky Maccoll Olson Busch & Pfeifer PC v. Employment Department, 157 P.3d 312, 212 Or. App. 174, 2007 Ore. App. LEXIS 538 (Or. Ct. App. 2007).

Opinion

WOLLHEIM, J.

Employer seeks review of a final order of the Employment Department (department) denying its request for relief from charges under ORS 657.471(5)(b) for unemployment benefits paid to its former employee. Employer assigns error to the administrative law judge’s (ALJ) interpretation of ORS 657.471(5)(b). We affirm.

Employer is a law firm that employed claimant as an attorney from November 2002 through November 2004. During his employment, the attorney was diagnosed with bipolar disorder and manic depressive syndrome. Ultimately, his medical condition and the medication he took to treat it interfered with his ability to work. For that reason, employer discharged the attorney on November 30, 2004.

The attorney filed a claim for unemployment benefits and the department allowed his request. In an Administrative Decision granting unemployment benefits, the department made three findings of fact:

“1. Claimant was employed by VAVROSKY MACCOLL OLSON PC from November 1, 2002 to November 30, 2004.
“2. Claimant was discharged for not meeting the employer’s standards.
“3. Claimant had a medical condition that prevented him from performing the functions of the job.”

(Emphasis added.) Based on those findings, the department concluded that the attorney was discharged, but not for misconduct related to his work and, therefore, he was entitled to unemployment benefits.

The department mailed employer a Notice of Claim Determination granting the attorney unemployment benefits. In response, employer requested relief from the charges.1 Specifically, employer argued that it discharged the attorney because he was “unable to satisfy a job prerequisite required [177]*177by law,” ORS 657.471(5)(b), and, therefore, employer should be relieved of the unemployment charges.

The department issued a decision denying employer’s request for relief. The department reasoned that “Oregon Law provides that relief can only be granted in a discharge situation if the individual was disqualified from their most recent separation by a decision issued by the Employment Department which found that the individual had been discharged for misconduct connected with the work.” Based on that erroneous interpretation of ORS 657.471(5)(b), the department denied employer’s request for relief of charges, because its previous decision determined that the attorney “was discharged but not for misconduct in connection with the work.” Employer appealed the department’s decision and a contested-case hearing followed.

Subsequent to the hearing, the ALJ issued a final order denying employer’s request for relief of charges. The ALJ made the following findings of fact, relevant to our determination:

“Claimant worked for Vavrosky Maccoll Olson Busch & Pfeifer PC, the employer, from November 1, 2002 until November 30, 2004. Claimant was hired as an attorney. Initially claimant was able to satisfy the requirements of his position but sometime later his medical condition started to interfere with his work. Claimant was diagnosed with a Bi-polar disorder. He was diagnosed as having manic depressive syndrome. He was undergoing therapy and took medication for his condition which interfered with his work. He was unable to focus and concentrate on legal tasks, unable to form lucid thoughts to analyze files and practice law, unable to maintain regular hours of employment and unable to keep track of his billable hours. Claimant was not disbarred but continued to hold his license to practice law while he was working for the employer. However, the employer discharged him due to him being unable to satisfy the requirements of his position.”

The ALJ concluded that ORS 657.471(5)(b) does not require a showing of employee misconduct to relieve an employer of unemployment charges; instead, it requires a showing that “ ‘the individual was unable to satisfy a job prerequisite [178]*178required by law or administrative rule? ” (Quoting ORS 657.471(5)(b); emphasis by ALJ.) The ALJ reasoned that

“[claimant was hired as an attorney. The job prerequisite required by law or administrative rule is that an attorney be an active member of the State bar in which the attorney practices law. Claimant was an active member of the Oregon State Bar while he worked for the employer. If the claimant was not an active member of the State bar in which he practiced law, then ORS 657.471(5)(b) would allow the employer’s account to be relieved of charges. Since there is no law or administrative rule that requires attorneys [to] practice law, the fact that claimant was unable to focus and concentrate on legal tasks, unable to form lucid thoughts to analyze files and practice law, unable to maintain regular hours of employment and unable to keep track of his billable hours does not mean he was unable to satisfy a job prerequisite. The only prerequisite was that he be an active member of the State bar in which he practiced law and claimant satisfied that requirement. Thus, the employer’s account can not be relieved of charges.”

Employer petitioned this court for judicial review of the final order, contending that the ALJ misinterpreted ORS 657.471(5)(b) when it concluded that the “job prerequisite required by law or administrative rule” for attorneys is active membership in the Oregon State Bar (Bar). On review, employer contends that the “job prerequisite[s] required by law or administrative rule” also include compliance with the rules of professional conduct.2 It argues that the ALJ’s findings indicate that the attorney was unable to comply with the rules of professional conduct and therefore it is entitled to relief of charges under ORS 657.471(5)(b).3

[179]*179The department contends that the ALJ correctly interpreted ORS 657.471(5)(b) and appropriately concluded that the “job prerequisite required by law or administrative rule” for attorneys is active membership in the Bar. The department contends that because the attorney satisfied that prerequisite, employer is not entitled to relief of charges.

We review the ALJ’s interpretation of ORS 657.471

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Cite This Page — Counsel Stack

Bluebook (online)
157 P.3d 312, 212 Or. App. 174, 2007 Ore. App. LEXIS 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vavrosky-maccoll-olson-busch-pfeifer-pc-v-employment-department-orctapp-2007.