OREGON STATE EMPLOYES ASSOCIATION v. State

THOENTON, J.,

specially concurring.

I agree with the majority that in the present posture of this case this court cannot express an opinion on the questions presented by OSEA, and I concur in the result. However I base my conclusion on a different ground.

Under OES 183.410,^① which is a part of our Administrative Procedures Act and is the statute under which OSEA sought a declaratory ruling from PERB, the authority of a state agency to issue declaratory rulings is limited to “any rule or statute enforceable by it.” As the majority opinion points out, the collective bargaining agreement involved here is not a “rule or statute” enforceable by PERB.

The present case is not in the nature of an administrative proceeding before PERB. Rather it is a dispute between two contracting parties as to the interpretation of a collective bargaining agreement.

A state agency has only such powers as are delegated to it by the legislature.- Gouge v. David et al., 185 Or 437, 202 P2d 489 (1949); Sunshine Dairy v. Peterson et al., 183 Or 305, 193 P2d 543 (1948).

Summarizing, it is my view that OSEA’s petition for a declaratory ruling was not cognizable under ORS 183.410; that PERB had no statutory authority to issue the declaratory rulings sought; and that therefore this court has no jurisdiction to entertain this appeal.

① ORS 183.410 provides:

“On petition of any interested person, any agency may in its discretion issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. A declaratory ruling is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside by a court. However, the agency may, where the ruling is adverse to the petitioner, review the ruling and alter it if requested by the petitioner. * * *”