Oregon Advisory Opinions May 18, 1970: OAG 70-38 (May 18, 1970)

OAG 70-38.

The State Labor-Management Relations Board was created by ORS 662.605. That statute provides for a three-member board, appointed by the governor with the advice and consent of the senate. The board is granted certain powers to decide appropriate bargaining units in labor-management relations, to receive petitions for the certification of bargaining units, and to conduct representation and deauthorization elections. ORS 662.555-662.575.

We are advised that the membership of the board is complete. The board is therefore authorized to perform its statutory duties. However, we are informed that the board is without funds to carry out its functions. The 1969 Legislature

made no substantive change in the statutes relating to the board and its duties, but did not appropriate any money for the board. We are further advised that the Emergency Board has also not provided funds for the board. Although the board is authorized by statute to exercise its powers, the issue is whether the board is compelled to perform duties when the legislature has withheld funds for the operation of the board.

ORS 662.655 provides for the establishment in the general fund of an account known as the Labor-Management Relations Account, which is continuously appropriated for the use of the board. Since there are no funds in that account, the board will be unable to operate in its normal manner. The board is without money to hire employes or purchase supplies. The board members are unable to receive payment of compensation allowances and expenses under ORS 662.516(4). Such payments are subject to appropriation by the legislature for the board's budget. ORS 291.002, 292.220 to 292.260 and 292.495.

Even though the legislature has not seen fit to repeal the board's statutory duties, its action in not funding the board must be viewed as a direct expression of legislative will, more explicit than any rule of statutory construction that the board not perform its duties during the current biennium. Similar action by the Emergency Board appears to us to negate any possibility of legislative oversight.

Since we presume that the legislature did not expect the board to carry out its programs without funds, the remaining question is whether the board members are subject to any legal liability if they do not act upon petitions filed with the board. Here the practical test of liability is whether a court would require the board to act by a writ of mandamus. Such a writ may be issued to compel the performance of an official duty which the law specifically enjoins. ORS 34.110.

Generally, a writ of mandamus will not be issued if the writ would be futile. In State ex rel. Booth v. Bryan , 26 Or 502, 508, (1894), a writ of mandamus was sought to compel a school superintendent to apportion the school fund among several school districts in the county. The writ was held to be defective, since the writ failed to show that there were funds in the county treasury subject to distribution. In Eddy v. Stadelman , 148 Or 216, 228, (1934), the court said:

"Mandamus will not lie to compel a public officer to perform a duty unless it is shown that a prerequisite to such performance, not under his control, does not make it impossible . . . ."

If a mandamus proceeding were brought against the board members to require them to perform their duties, it is our opinion that the inability of the board to perform its duties due to lack of funds could be asserted as a defense. The board's duties are derived solely from the legislature. The legislature, by withholding appropriation from the

board has effectively altered the board's responsibilities as though it had expressly amended Chapter 662.

It is therefore our opinion that although the members of the board are by virtue of their offices entitled to perform their statutory functions they are not entitled to receive compensation therefor and are not required to carry out their statutory functions.