Wied v. Marion County

FORT, J. Appellant Wied, a regular deputy sheriff in respondent county, appeals from an order of the circuit court holding (1) that the Marion County Civil Service Commission lacked jurisdiction to enter an order, after hearing, that a purported resignation of Wied was not a voluntary one, and (2) that even if it had such jurisdiction the record of the hearing does not contain substantial evidence to support the finding of involuntariness. A further question presents itself which was not presented either to the trial court or to this court. Since it relates to the jurisdiction of the circuit court [290] to have heard this matter at all, we find it necessary to consider it. ORS ch 241 deals with the provision of civil service for counties and the rights granted employes thereunder. ORS 241.020 makes the statute mandatory only to counties of over 300,000. However, ORS 241.002 to 241.008 authorize procedures whereby the Act following its adoption by the county voters may become effective in a county so enacting it. ORS 241.-006 provides there may be submitted to the voters a proposal: “(1) To make ORS 241.020 to 241.990 and any subsequent amendments thereto, providing a system of civil service under which county employes shall be employed, applicable to such county; “(2) To make ORS 242.702 to 242.824 and any subsequent amendments thereto, providing a system of civil service under which certain political subdivisions shall employ firemen, applicable to such county for all county employes; “(3) That provides a system of civil service which substantially accomplishes the general purposes of ORS 241.020 to 241.990 or ORS 242.702 to 242.824, including methods of recruitment and promotion of county employes by competitive examinations and provisions for job tenure for county employes * # * «*#***» Marion County adopted a Civil Service Act pursuant thereto. ORS 241.455 provides: “No final judgment or order of removal, discharge, suspension or demotion made with the unanimous consent of the commission pursuant to ORS 241.450 shall be subject to review by any tribunal.” [291] The record here and in the circuit court fails to include the complete record of the Marion County Civil Service Commission, and we thus do not have a copy of the complete order here appealed from. However, appellant’s brief informs us that its order was unanimous. This is not contradicted by respondent. That portion of the order contained in the abstract recites that the three members of the commission were present at the hearing. We thus conclude the order was unanimous. Because the civil service proposal adopted by the Marion County voters does not contain OBS 241.455, the parties and the court below apparently assumed that it has no application to this case. In Lines v. City of Milwaukie, 15 Or App 280, 515 P2d 938 (1973), Sup Ct review denied (1974), we had occasion to consider a case involving an almost identical problem of the discharge of a city fireman in a home rule city and the relation of its charter provision to the state civil service enabling Act. There, after discussing the problem of conflict between the two, we said: “Section 68 of the city charter did not confer jurisdiction on the circuit court. A home rule city has no power to expand or contract the jurisdiction of the circuit courts of the state of Oregon. City of Portland v. Stevens, 180 Or 514, 178 P2d 175 (1947); La Grande v. Municipal Court et al, 120 Or 109, 251 P 308 (1926); Wong Sing v. Independence, 47 Or 231, 83 P 387 (1905).” 15 Or App at 286. See also: Boyle v. City of Bend, 234 Or 91, 380 P2d 625 (1963). Here OBS 241.455 expressly provides that no tribunal may review the described actions of the county civil service commission where unanimously arrived [292] at. That provision is clearly a part of the general purposes of the county civil service act. As such the county in enacting its own proposal for a civil service system would seem to be required by ORS 241.006(3) to comply with it. And certainly in the absence of an express provision to the contrary the Marion County ordinance cannot be construed to be contradictory to ORS 241.455. Furthermore, if so construed, under the rule of Lines it would clearly be void as an attempt by the county ordinance to confer jurisdiction upon the circuit court in direct derogation of the enabling Act, ORS 241.455. Furthermore, ORS 241.455 by its terms applies only when a civil service commission has issued a “* * * final judgment or order of removal, discharge, suspension or demotion * * *” with respect to the employe. This was not the case here. As pointed out above, the sheriff appealed to circuit court a decision of the commission that Mr. Wied’s resignation was not voluntary. The commission has not as yet considered, let alone entered, an order on the issue of “removal, discharge, suspension or demotion.” We are directed to no provision of ORS ch 241 which gives the circuit court authority to review any action by a county civil service commission except final orders of removal, discharge, suspension or demotion. A similar limitation is found in ORS 241.-460(3). Accordingly, we conclude on both grounds that the circuit court lacked jurisdiction to entertain the appeal. It follows that the order of the circuit court must be vacated and the appeal to that court dismissed. Judgment vacated; appeal dismissed.