Zollinger v. Frear

574 P.2d 680, 32 Or. App. 385, 1978 Ore. App. LEXIS 3112
CourtCourt of Appeals of Oregon
DecidedFebruary 7, 1978
DocketNo. 76-3176, CA 7610; No. 76-3177, CA 7619; No. 76-3178, CA 7622
StatusPublished
Cited by1 cases

This text of 574 P.2d 680 (Zollinger v. Frear) 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
Zollinger v. Frear, 574 P.2d 680, 32 Or. App. 385, 1978 Ore. App. LEXIS 3112 (Or. Ct. App. 1978).

Opinion

THORNTON, J.

In this mandamus proceeding defendants appeal from an order of the circuit court directing a peremptory writ of mandamus to issue commanding defendants to rescind the transfer of plaintiffs to junior high school principal positions and to reinstate plaintiffs as senior high school principals.

The question which is presented in this proceeding is whether the plaintiffs were transferred to lower paying positions within the meaning of ORS 342.845(2).

ORS 342.845(2) provides:

"No permanent teacher who has served as an administrator in a particular position for a period of three successive years in a tenure district shall be transferred to a lower paying position as an administrator or to a nonadministrative position without his consent except for the reasons for which a permanent teacher may be dismissed as provided in ORS 342.200 and 342.805 to 342.955 and in accordance with the procedures set forth in ORS 342.200 and 342.805 to 342.955 pursuant to which a permanent teacher may be dismissed.”

All three plaintiffs had gained "administrative” tenure as high school principals pursuant to ORS 342.845(2) prior to their transfers in April 1976. Plaintiff Zollinger had been a tenured high school principal since March 1968; plaintiff Flynn since March 1965; and plaintiff Moffitt since March 1962.

Plaintiffs did not consent to the transfers, and the transfers were not made for any of the reasons for which a permanent teacher may be dismissed or in accordance with the procedures provided in the Fair Dismissal Law. ORS 342.805 to 342.955. In an effort to avoid the procedural requirements of ORS 342.845(2), the defendant school board approved a resolution [388]*388maintaining the plaintiffs’ salaries at the high school principal level.1

Plaintiffs contend that each of the instant transfers qualifies as a transfer to "a lower paying position” under ORS 342.845(2), and that the defendants are therefore required to comply with the dismissal procedures of the Fair Dismissal Law. The defendants claim that plaintiffs were not transferred to lower paying positions because their salaries were not reduced.

A threshold question, however, is whether the circuit court, and hence this court, had jurisdiction. Although none of the parties briefed this issue on appeal, it was the subject of lengthy memoranda and extensive argument in the trial court.

ORS 34.110 provides that a writ of mandamus "shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.” A writ of mandamus will not be available to transfer jurisdiction to the circuit court where the law provides for initial determination by an administrative agency. Phillips v. Layman, 15 Or App 107, 109, 514 P2d 1352 (1973), rev den (1974). Cf., School Dist. No. 1, Mult. Co. v. Nilsen, 262 Or 559, 572, 499 P2d 1309 (1972); Bay River v. Envir. Quality Comm., 26 Or App 717, 554 P2d 620, rev den (1976). Inasmuch as plaintiffs chose to eschew an appeal to the Fair Dismissal Appeals Board (Board) and pursue the writ of mandamus, is the above rule requiring exhaustion of the administrative remedy controlling here and does it require that plaintiffs’ appeal be dismissed?

In cases arising under the Fair Dismissal Law an appeal to the Board from the decision of a school district relating to the dismissal or transfer of a [389]*389tenured administrator is expressly provided in ORS 342.905(1).2 There is no provision within the statute for an appeal to the circuit court.

Plaintifffs contended at trial that notwithstanding the appeal provisions of the Fair Dismissal Law, there is no adequate remedy at law in this case because the Board cannot acquire jurisdiction unless the school district follows the notice provisions of ORS 342.895(2).3 By failing to do so, plaintiffs argue, the school district presents the Board with nothing to review to see whether "the facts relied on to support the recommendations of the district superintendent [390]*390are true and substantiated and if true and substantiated, whether or not they are adequate to justify the statutory grounds cited as reasons for the dismissal.” ORS 342.905(5).

We conclude, however, that ORS 342.895 is not jurisdictional, as plaintiffs contend. Were that the case a school district could circumvent review by the Board simply by failing to comply with any of the statute’s notice requirements. An aggrieved permanent teacher would have to file a costly and time-consuming petition for writ of mandamus in circuit court, and the advantages of having, in all cases, a specialized review board determine teacher dismissal issues would thereby be negated.

Further, plaintiffs’ argument overlooks the fact that the legislature intended the Board to review substantive and procedural issues arising under the Fair Dismissal Law, regardless of whether a school district complied with the requirements of ORS 342.895. This is demonstrated by an examination of the statutes governing the procedures and powers of the Board. After a notice of appeal has been filed by an aggrieved person the Board is required to hold a formal hearing at which the aggrieved administrator may present evidence relevant to the reasons for his transfer and to the issue of whether the procedures required by law were followed by the school district. In light of these statutory provisions it is apparent that the language of ORS 342.905(5), (6) and (7) implicitly empowers the Board to determine whether a transfer is in compliance with ORS 342.845(2), notwithstanding the fact that a district may have failed to comply with ORS 342.895.

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Related

Zollinger v. Warner
593 P.2d 1107 (Oregon Supreme Court, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
574 P.2d 680, 32 Or. App. 385, 1978 Ore. App. LEXIS 3112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zollinger-v-frear-orctapp-1978.