Maddox v. Clackamas County School District No. 25 , 51 Or. App. 639 ( 1981 )

THORNTON, J.,

specially concurring.

Although I concur in the result reached in the prevailing opinion, I am in total disagreement with its rationale.

The crux of my disagreement with the majority is that in my view the majority opinion completely disregards the plain language of ORS 342.835(3) specifically providing that a discharged teacher has a right of administrative appeal from the school board’s order terminating his employment after a hearing before the board.

On appeal, plaintiff argues as follows: that as a probationary teacher, plaintiff did not have a right of an administrative appeal of his termination under the Fair Dismissal Law; that the fact that he may have available to him the remedy of a petition for writ of review to the circuit court does not foreclose his common law right to sue for breach of his employment contract or from bringing a civil rights claim under 42 USCA § 1983.

Defendant District contends that plaintiff may bring neither a breach of contract claim nor a § 1983 action because he had a right to appeal to the Fair Dismissal Appeals Board (FDAB) and has failed to exhaust that administrative remedy. It further contends that, if plaintiff is not entitled to such an appeal, the appropriate remedy is an action for wrongful termination. This, defendant argues, is a tort action which plaintiff is precluded from bringing by the limitation provisions of the Oregon Tort Claims Act. See ORS 30.275 (1)(3).

On September 29, 1976, the date of plaintiff’s dismissal, ORS 342.835 applied to his status as a probationary teacher and provided in relevant part:

"(1) The district board of any fair dismissal district may discharge or remove any probationary teacher in the employ of the district at any time during a probationary period for any cause deemed in good faith sufficient by the board. The probationary teacher shall be given a written copy of the reasons for his dismissal, and upon request shall be provided a hearing thereon by the board, at which time he shall have the opportunity to be heard in his own defense either in person or by a representative of his choise.

* * * *

"(3) If an appeal is taken from any hearing, the appeal shall be limited to:

"(a) The procedures at the hearing;

"(b) Whether the written copy of reasons for dismissal required by this section way supplied * * *. tt* * * * * ”

Subsection (3) of this section contemplates that a dismissed or nonrenewed probationary teacher will have some kind of appeal from the determination made by the school board following a hearing. The apparent reference is to ORS 342.905 (1) which provides for appeal to the FDAB "[i]f the district school board dismisses the teacher * * The difficulty stems from the fact that ORS 342.905 contains numerous references to "permanent teachers” only, thereby ostensibly restricting availability of a hearing to tenured teachers. ORS 342.905 (3), (5), (6) (a), (7).

In Henthorn v. Grand Prairie School Dist., 39 Or App 351, 356, 591 P2d 1198, 287 Or 683, 601 P2d 1243 (1979), we stated that no such right of appeal existed. We further held that a probationary teacher whose contract was not renewed had no right to a writ of review because the hearing before the board did not result in a determination or decision which could be reviewed. 39 Or App at 356-a. On appeal, our Supreme Court reversed, holding that the school board’s determination was a quasi-judicial decision which could be reviewed by writ of review in circuit court. 287 Or at 690-91. There was apparently no contention, however, that an appeal to the FDAB was also available. 287 Or at 692 n 7.

In my view, in enacting ORS 342.835 (3), the legislature intended to extend a right of administrative appeal to probationary teachers. The language to the contrary in our opinion in Henthom should be expressly disapproved by this court. Historically, the legislature has been expanding the rights of probationary teachers who are dismissed. In 1965, when the statute was first enacted, subsection (1) provided:

"The board of any tenure district may discharge or remove any probationary teacher in its employ at any time during a probationary period for any cause deemed sufficient by the board.”

In 1971, that subsection was amended (Oregon Laws 1971, ch 570, § 4, P 1013 to read:

"The district board of any fair dismissal district may discharge or remove any probationary teacher in the employ of the district at any time during a probationary period for any cause deemed in good faith sufficient by the board. However, the probationary teacher is entitled to meet informally with the board, at the teacher’s request, to discuss the cause of dismissal.”

In 1975, the section was again amended (Oregon Laws 1975, ch 727, § 1, p 1991), adding subsection (3) and granting a dismissed teacher a hearing before the board and a written copy of reasons for his dismissal.

There is presently pending before the 1981 legislature House Bill 3019 providing for a new and additional hearing for a probationary teacher denied reemployment. The hearing would be before a hearings officer appointed by the State Board of Education.

ORS 342.905 has also been changed several times since its initial enactment. In 1965, subsection (1) (quoted in part above) referred specifically to permanent teachers. That reference was deleted by the 1971 amendment, although other references to permanent teachers in that section remained. The section was twice amended in 1973, but was not amended in 1975 when the legislature enacted ORS 342.835(3).

In construing statutes, we attempt to give effect to every part, if possible, Tracy v. Employment Division, 29 Or App 851, 854, 565 P2d 403 (1977). If the reference in ORS 342.835(3) does, not refer to an administrative appeal to the FDAB, then it is meaningless because there is no other right of appeal of which we are aware to which it could refer. It has long been established that a writ of review is not an "appeal,” although our Supreme Court applied ORS 342.835(3) to limit the scope of review available upon writ of review. Hill v. State, 23 Or 446, 32 P 160 (1893).

I conclude that the legislature, in adding ORS 342.835(3), impliedly amended ORS 342.905 to allow appeals for probationary teachers. Balzer Mch. v. Klineline Sand & Grav., 271 Or 596, 601, 533 P2d 321 (1975). It follows that plaintiff has failed to exhaust his administrative remedies. See Bay River v. Envir. Quality Comm., 26 Or App 717, 721-22, 554 P2d 620, rev den (1976); School Dist. No. 48 v. Fair Dis. App. Bd., 14 Or App 35, 512 P2d 799 (1973). I do not imply that no possible cause of action arising out of a dismissal can exist unless the plaintiff has pursued administrative remedies to challenge or reverse the dismissal. I would hold that where, as here, the injuries alleged could be wholly cured or redressed through available administrative channels, administrative remedies must be exhausted.

This opinion will also serve to alert the legislature to the problem presently perplexing the courts with reference to the interpretation ORS.342.835 and to give that body an opportunity at the current session to clarify the statutes pertaining to the appeal rights of dismissed or nonrenewed probationary teachers.