Hendrickson v. Civil Service Commission

THORNTON, J.,

dissenting.

My study of the statutes in issue (firemen’s civil service law) and our recent decision in Wied v. Marion County, 23 Or App 288, 542 P2d 149 (1975), involving the county employes’ civil service law, leads me to the opposite conclusion from the majority opinion. I believe that the trial judge correctly interpreted and applied these statutes, and that his decision should be affirmed. See also, Helberg v. Civil Service Com., 10 Or App 62, 498 P2d 789 (1972).

The issue on appeal here is substantially similar to the issue we decided in Wied v. Marion County, supra, although Wied involved the next preceding chapter of Oregon Revised Statutes, namely, ORS ch 241 (civil service for county employes).

In Wied we decided that ORS ch 241 did not authorize the circuit court to entertain an appeal from an order of the Marion County Civil Service Commission holding that Wied’s written resignation as a deputy sheriff was not a voluntary resignation. It is my view that the conclusion reached in the majority opinion is in conflict with our previous holding in Wied.

The crux of my disagreement with the majority opinion is with the construction it places on ORS 242.804.

Here, subsection (3) of ORS 242.804 expressly provides that no appeal to the circuit court lies except from an order of “removal, discharge, demotion or suspension.” In Wied, subsection (3) of ORS 241.460 also expressly provided that no appeal to the circuit court would lie except from an order of “removal, discharge, demotion or suspension.” Here, subsection (3) of ORS 242.804 provides further that such review “shall be confined to the determination of whether the order of removal, discharge, demotion or suspension made by the commission was made in good faith for cause.” It also provides: “No appeal to such court shall be heard except upon such grounds.”

Similarly in Wied, subsection (3) of OBS 241.460 provided further that such review

“* * * shall be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension * * * was or was not made for political or religious reasons, or because of an unlawful employment practice as described in subsection (1) of OBS 659.026, and was or was not made in good faith for cause. No appeal to such court shall be taken except upon such grounds.”

Quite obviously a letter of reprimand, which is in issue here, is not an order of “removal, discharge, demotion or suspension.” Therefore no appeal to the circuit court lies.

As in the case of OBS ch 241, with which we were dealing in Wied v. Marion County, supra, the same words, “removal, discharge,” etc., are also found in other parts of the same Act. See, for example, OBS 242.796, 242.798, 242.800.

I would agree that OBS 242.804(1), standing alone, authorizes circuit court review of “[a]ny decision of the commission affecting any permanent employe * * However, under established rules of construction OBS 242.804(1) must be read in pari materia with the remainder of the Act, particularly OBS 242.804(3). Curly’s Dairy v. Dept. of Agriculture, 244 Or 15, 21, 415 P2d 740 (1966); Haas v. Myers, 10 Or App 495, 500 P2d 1068 (1972).

The ancestor statute of OBS ch 241 was enacted in 1929. However, OBS 242.702 et seq, the firemen’s civil service law, was not enacted until 1959. From the foregoing it seems logical to infer that the draftsman of that law, ORS 242.702 et seq, borrowed the language of ORS 242.804(3) from ORS 241.460(3). In fact the provisions of ORS 242.804(3) are almost identical with ORS 241.460(3).

I can reach no other conclusion from the above analysis than that the trial judge, even without benefit of our subsequent decision in Wied, correctly interpreted and applied ORS 242.804 in the case at bar. I would affirm.