Graziano v. City Council of Canby ( 1978 )

SCHWAB, C. J.

This is a writ of review proceeding in which petitioner challenges his discharge from the position of chief of police by the respondent city council. Petitioner appeals from an order of the circuit court dismissing the writ, contending that he enjoyed tenure-type protection in his position, and thus should have been — but was not — afforded a due process hearing on the cause for his discharge. We conclude that this claim is not cognizable in a writ of review proceeding.

A writ of review can only be used to challenge the "judicial or quasi-judicial” decision of a tribunal. ORS 34.040. Decisions that are other than "judicial or quasi-judicial,” such as legislative and administrative, can only be judicially reviewed by some other means, such as declaratory judgment, a suit in equity or an action at law. See Joyce v. City of Portland, 24 Or App 689, 546 P2d 1100 (1976); Gunsolley v. Bushby, 19 Or App 884, 529 P2d 950 (1974). The distinction rests upon whether a party seeks limited judicial appellate review of the record before the inferior tribunal, in which case his remedy is writ of review, or, instead, seeks the aid of a recordmaking and factfinding court, in which case his remedy is not writ of review. See Fadeley v. Oregon Ethics Comm., 25 Or App 867, 551 P2d 496 (1976).

Although arising under the Administrative Procedures Act, ORS ch 183, N.W. Envir. Def. v. Air Poll. Auth., 16 Or App 638, 519 P2d 1271 (1974), is analogous to the present case. There the claim was that an agency should have but did not hold a contested case hearing. Here the claim is that the city council should have but did not hold a quasi-judicial hearing. Contested case hearings before state agencies and quasi-judicial hearings before local tribunals are substantially equivalent. Claims that either should have been held but was not must be presented originally to a recordmaking and factfinding court — the circuit court.

Although we conclude that petitioner has invoked the wrong remedy, we nevertheless reach one aspect of the merits because it presents a purely legal question and also in order to respond to the dissent. Petitioner contends he enjoyed tenure-type protection in his former position as chief of police. The relevant provision of the city charter provides:

"There shall be appointed by the Council a Recorder, Municipal Judge, Attorney, Superintendent of Public Works, City Engineer, Chief of Police and Fire Chief, who shall be officers of this municipal corporation. The Council may combine any two or more appointive offices. The Council may designate an appointive officer to supervise any other appointive officer except the Municipal Judge in the exercise of his judicial functions. Appointed officers shall hold their office during the pleasure of the Council or until their successors are appointed and qualified. They are subject to removal at any time by the Council for malfeasance, inattention or incompetency. The Council may from time to time appoint such other subordinate officers as they deem necessary and proper, who shall hold their office at the will of the Council. The duties of all officers not defined in this Charter may be prescribed by the City Council.” Charter for the City of Canby, ch III, § 9, pp 4-5 (January 2, 1969).

In arguing he enjoyed tenure as chief of police, petitioner relies on the sentence that states:

"* * * [Appointed officers] are subject to removal * * * for malfeasance, inattention or incompetency * * * 9f

In arguing the chief of police is not a tenured position, respondent relies on the sentence that states:

"* * * Appointed officers shall hold their office during the pleasure of the [City] Council * *

We must construe these provisions together and give effect to both. Curly’s Dairy v. Dept. of Agriculture, 244 Or 15, 21, 415 P2d 740 (1966); Union Pac. R. R. Co. v. Bean, 167 Or 535, 549,119 P2d 575 (1941). It is possible to give effect to both relevant sentences of the city charter by interpreting it to mean: Appointed officials hold office during the pleasure of the city council, and possible grounds for displeasure include, for example, malfeasance, inattention and incompetency.

This construction is most likely consistent with the draftsmen’s intent. The city charter applies the same rule to seven appointive positions: city recorder, municipal judge, city attorney, superintendent of public works, city engineer, chief of police and fire chief. Many of these positions are involved in the formation and execution of political policies. Suppose the elected city council wants to make daytime residential burglaries the first police priority, but the appointed chief of police wants to make nighttime commercial burglaries the highest enforcement priority. Suppose the elected city council wants to repave Elm Street before repaving Maple Street, but the appointed superintendent of public works prefers to do those projects in the opposite order. We think it is reasonable to assume that the draftsmen of the city charter would have intended that the elected officials prevail over their appointed subordinates — even to the point of being able to discharge appointed bureaucrats for nothing more than an honest, good-faith disagreement over political policies.

Affirmed.