Wasco County v. American Federation of State, County & Municipal Employees

SCHWAB, C. J. Petitioner, the prevailing party in Wasco County v. AFSCME, 30 Or App 863, 569 P2d 15 (1977), has moved for an award of attorney fees under ORS 183.495, which provides: "Upon judicial review of a final order of an agency when the reviewing court reverses or remands the order it may, in its discretion, award costs, including reasonable attorney fees, to the petitioner to be paid from funds appropriated to the agency.” Petitioner asks that we order respondent, the Employment Relations Board, to pay its attorney fees from funds appropriated to the agency. We decline to do so. Contested-case proceedings can come before an Oregon administrative agency in two distinct manners. On the one hand, the agency itself can inform and in fact be a party to the administrative proceeding; an example would be a proceeding before an agency with licensing authority in which the agency seeks to revoke a license. On the other hand, the agency can be a disinterested adjudicatory tribunal in which adverse parties litigate their dispute. This case is an example of the latter — an unfair-labor-practice proceeding initiated before the Employment Relations Board by a public-employe union against a public employer. We conclude it unlikely that the legislature intended, when enacting ORS 183.495, that attorney fees would be paid by an administrative agency that functioned as an adjudicatory tribunal. When so functioning, an agency is like a specialized court, and we are not aware of any serious suggestion that when a court is reversed an award of attorney fees be made to the winner on appeal, to be paid out of the court’s operating funds. Alternatively, even if the legislature had intended ORS 183.495 to authorize the award of attorney fees in a case like this, the statute leaves the matter to our [768] discretion. Unless and until we are persuaded there is some cogent reason to distinguish generally or in a particular case between one type of adjudicatory tribunal, i.e., courts, and another type, i.e., some administrative agencies, we intend to exercise that discretion against awards of attorney fees in cases like this one. Petition denied.