Appeal from Circuit Court, Morrow County. Henry Kaye, Judge. No. 5239.
Robert E. Ridgway, Pendleton, argued the cause for appellant. With him on the briefs was Dennis A. Hachler, Pendleton.
Edward H. Warren, Portland, argued the cause for respondents. With him on the brief were Hershiser, Mitchell & Warren, Portland.
Schwab, Chief Judge, and Foley and Fort, Judges.
This is a proceeding in equity in which plaintiff, who was employed as an appraiser by Morrow County, contends his discharge from that position violates his substantive and procedural constitutional rights. Defendants include his former supervisor and the elected
county commissioners. Defendants' demurrer was sustained by the trial court and plaintiff appeals.
The questions presented are whether the trial court had jurisdiction over plaintiff's claims; whether the county is immune; whether plaintiff's discharge violated his procedural rights under the Due Process Clause of the Fourteenth Amendment because he was not granted a pretermination hearing on the grounds for his discharge; whether denying plaintiff a hearing while, by statute, according a hearing to some other public employes violates the Equal Protection Clause of the Fourteenth Amendment, and whether plaintiff can challenge his discharge on the ground that it was "arbitrary."*fn1
Plaintiff's complaint alleged the trial court's jurisdiction was based on a federal statute, 42 USC § 1983 (1971).*fn2 In this court, the parties have argued at great length whether this federal statute confers jurisdiction on Oregon state courts. This misses the issue. Without the aid of any federal statute, Oregon courts have jurisdiction to consider whether a public employe's discharge violates his substantive or procedural constitutional rights. Brush v. Bd. of Higher Education, 245 Or 373, 422 P2d 268 (1966); Minielly v.
State, 242 Or 490, 411 P2d 69, 28 ALR3d 705 (1966); U.S. Constitution, Art. VI.*fn3
Relying upon Smith v. Cooper, 256 Or 485, 475 P2d 78, 45 ALR3d 857 (1970), defendants contend they are immune from suit because the discharge decision plaintiff challenges was a discretionary act. This is frivolous. Defendants do not have any discretion to discharge any public employe for constitutionally impermissible reasons or by way of constitutionally invalid procedures.
In Papadopoulos v. Bd. of Higher Ed., 14 Or App , 511 P2d 854, Sup Ct review denied (1973), we held that whether a public employe is entitled to a pretermination hearing depends upon his entitlement to continued employment, i.e., his job security; the existence and extent of a public employe's job security depend upon state law governing public employment. See also, Board of Regents v. Roth, 408 U.S. 564, 92 S Ct 2701, 33 L Ed 2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S Ct 2694, 33 L Ed 2d 570 (1972).
ORS ch 241 creates a civil service system for county employes. These statutes are only applicable to counties "having a population of 300,000 persons or more," ORS 241.020, and smaller counties where, by election pursuant to ORS 241.006, the voters choose to make ORS ch 241 applicable to the county. In all other counties the relevant statute provides:
"(1) The county court or board of county commissioners
of each county shall fix the number of deputies and employes of county officers whose compensation is to be paid from county funds.
"(2) All such deputies and employes shall be appointed by such county officer, and shall hold office during the pleasure of the appointing officer." ORS 204.601.
Plaintiff's complaint does not allege that Morrow County is subject to the civil service requirements of ORS ch 241, either by having a large enough population or by the Morrow County voters' having chosen to make ORS ch 241 applicable. Thus, while plaintiff was employed as an appraiser by Morrow County the extent of his job security was defined by ORS 204.601 (2), i.e., he was entitled to "* * * hold office during the pleasure of the appointing officer." In this situation, the Due Process Clause of the Fourteenth Amendment does not require Morrow County to grant plaintiff a hearing on the grounds for his discharge. Board of Regents v. Roth, supra; Papadopoulos v. Bd. of Higher Ed., supra.
Plaintiff contends that the statutory scheme that grants civil service job security to public employes in larger counties, ORS ch 241, while denying civil service job security to public employes in smaller counties, ORS 204.601 (2), runs afoul of the Equal Protection Clause of the Fourteenth Amendment.*fn4 A similar statutory scheme in the teacher tenure laws was upheld against the same contention in Bock v. Bend School
Dist. No. 1, 252 Or 53, 448 P2d 521 (1968). There is no meaningful distinction between the statutory scheme challenged in Bock and the one here involved. See also, Harrison v. McNamara, 228 F Supp 406 (D Conn 1964), affirmed 380 U.S. 261 (1965); Jaeger v. Freeman, 410 F2d 528 (5th Cir 1969); Medoff v. Freeman, 362 F2d 472 (1st Cir 1966).
The final and most significant question presented is: Does plaintiff's complaint state a cause of action in alleging his "dismissal was without a reasonable basis, was capricious, [and was] arbitrary" and that "the decisions of each of the defendants were made in an arbitrary and capricious manner."
Courts frequently review administrative and executive determinations for actions that are "arbitrary," "capricious," "unreasonable," or an "abuse of discretion." Bay v. State Board of Education, 233 Or 601, 378 P2d 558, 96 ALR2d 529 (1963). Sometimes distinctions between these terms are sought to be made. See, 2 Am Jur 2d 503-12, Administrative Law, §§ 650-51. But for present purposes we perceive no ...