Oregon Advisory Opinions September 17, 1979: OAG 79-108 (September 17, 1979)

OAG 79-108.

In 1977 the legislature passed the Community Corrections Act (Act), Oregon Laws 1977, ch 412, authorizing and establishing a community corrections program. The

Act, which had an emergency clause, was signed by the Governor on July 15, 1977 and took effect on that date.

Section 8(2) of the Act, now codified as ORS 423.540(2), provides in part:

"Financial aid received by a county pursuant to section 7 of this Act shall not be used to replace moneys, other than federal or state funds, currently being used by the county for existing correctional programs for misdemeanants. . . ."

The question presented asks at what time the amount of "moneys . . . currently being used by the county for existing correctional programs for misdemeanants," ORS 423.540(2), is to be determined.

We are informed that this question arose after Clatsop County was ordered to relinquish nearly $1.2 million to a school district. The county held a special levy election but failed to recoup the lost revenues. Consequently, severe cuts in county services were made to generate the required payment, and the county misdemeanant services program was eliminated. The county now seeks to participate in the community corrections program and receive funds pursuant to the Act. Its eligibility depends upon whether the word "currently," as used in ORS 423.540(2), refers to the date on which the Act became effective, on which date the county was funding a misdemeanant services program, or a date following termination of the program.

The word "currently" was added to sec 8(2) of the Act in an amendment by the Senate Committee on Local Government and Elections (committee) to a draft which initially stated:

"Financial aid received by a county pursuant to section 7 of this Act shall not be used to replace local funds for existing correctional programs. . . ."

The word "currently" is ambiguous as used in ORS 423.540(2). When a word in a statute is ambiguous, we resort to statutory construction to determine its meaning in context. The primary purpose of statutory construction is to ascertain the legislative intent. In this endeavor, we may give due consideration to legislative history. State v. Leathers, 271 Or 236, 242, 531 P2d 901 (1975).

The use of committee reports and minutes, both of legislative committees and of special revision committees, is helpful and proper in determining the history of a statute. State v. Laemoa, 20 Or App 516, 523, 533 P2d 370 (1975). When the Act was under consideration by the legislature, the intent behind sec 8(2) was explained to the committee by Mr. Ed Sullivan, Chairperson of the Governor's Task Force on Corrections. Mr. Sullivan stated

that this provision was included in the Act so that counties "can't replace money that they're already spending on corrections. In other words, they can't cut their corrections budget and hope that the state will fund the whole package." Senate Committee on Local Government and Elections, January 31, 1977, tape 3, side 1, tape counter at 722. Mr. Sullivan assured the committee that "the funds received pursuant to section 7 [of the Act] can't be used to replace local funds for correctional programs." Id, tape counter at 978.

Were this the only evidence available of the intent of the legislature in drafting the Act, we would conclude that the word "currently" refers to the date the Act was signed by the Governor and became effective, July 15, 1977. Cf Tillamook City v. Tillamook County, 56 Or 112, 115, 107 P 482 (1910) (road tax "now levied by law"). This strict construction would guarantee that a county could not reduce local funding for its misdemeanant programs below the July 15, 1977 level in anticipation of receiving state aid pursuant to the Act. On the other hand, this construction would permit a county, which spends no money for misdemeanant services on the effective date of the Act but later finances a misdemeanant services program, to substitute state money for its own commitment thereafter. This would clearly be contrary to the purpose of the limitation.

But evidence from the Act itself, and from the legislative history of the Act, suggests that a more liberal construction would better conform to the intent of the legislature. For example, ORS 423.505 provides:

"It is declared to be the legislative policy of this state to establish and finance with appropriations from the General Fund state-wide community correction programs on a continuing basis. The intended purpose of this program is to provide appropriate sentencing alternatives and to provide improved local services for persons charged with criminal offenses with the goal of reducing the occurrence of repeat criminal offenses." (Emphasis added).

It was apparently the intent of the legislature, in passing the Act, to encourage local retention of convicted criminals to the greatest extent possible. To achieve this goal, it is necessary to maximize the number of counties participating in the community corrections program. Therefore the word "currently," as used in ORS 423.540(2), should be interpreted in a manner that will enhance the likelihood that counties will be eligible for the benefits conferred by the Act. Accordingly, we conclude that the word "currently" refers to the time at which a county submits a community corrections plan to the division for approval.(fn1)

This is the least restrictive practical construction of the Act. It is preferable to relating the word "currently" to the effective date of the Act because it protects a county from being required to maintain the level of misdemeanant services

funding existing on July 15, 1977 as a condition of participation in the community corrections program at any time thereafter. If this construction is adopted a county which suffers difficulties after July 15, 1977 and consequently must curtail or eliminate its services for misdemeanants may still qualify for future participation in the community corrections program despite its changed circumstances.

In 1979, ORS 423.540(2) was amended by Or Laws 1979, ch 487. The word "currently" does not refer to the effective date of the amendment for the reason, discussed above, that to be consistent with the intent of the legislature eligibility for participation in the community corrections program should not be tied to a fixed date.(fn2)

Finally, the word "currently" does not refer to the date on which the division approves a community corrections plan. A county is responsible for informing the division of its current funding "for existing correctional programs for misdemeanants," ORS 423.540(2), and should be able to do so as of a date determinable by the county (i.e. the date it intends to submit its community corrections program for approval), rather than a date which may vary depending upon the administrative practices of the division.

The division is charged with approving local corrections programs, and must ensure that a county does not use funds received pursuant to the Act "to replace moneys, other than federal or state funds, currently being used by the county for existing correctional programs for misdemeanants." ORS 423.540(2). In executing this responsibility the division should compare a county's current budget for misdemeanant services at the time the county submits a community corrections plan for review with the county's appropriations for such services in previous years. If it appears that the county has reduced its current budget for these services before submitting its community corrections plan to the division, the division should investigate the reasons for the reduction to ascertain whether the county is in compliance with ORS 423.540(2).