Oregon Advisory Opinions January 01, 1981: OP 8043

Advisory Opinion Text

No. 8043 July 2, 1981 Mr. Raymond P. Thorne Administrator Employment Division Department of Human Resources FIRST QUESTION PRESENTED

If the duties performed by current state employes administering the Comprehen­sive Employment and Training Act program now sponsored by the Employment Division are transferred to a consortium of twenty-two Oregon counties, what would be the status of those employes after the transfer of duties?

ANSWER GIVEN

The employes in question would retain their present status to the extent provided under ORS 236.610 to 236.650.

SECOND QUESTION PRESENTED

If these duties were trans­ferred to Oregon private non­profit organizations, what would be the status of the same em­ployes after the transfer of duties?

ANSWER GIVEN

The employes in question would not be protected by ORS 236.610 to 236.650, because the proposed transfer of CETA func­tions would not be by coopera­tive agreement between the state and such non-profit organiza­tions.

THIRD QUESTION PRESENTED

If the duties were transferred to federal agencies, what would be the status of the same em­ployes after the transfer of duties?

ANSWER GIVEN

ORS 236.610 to 236.650 do not apply to federal agencies. Ac­cordingly, the status of the em­ployes in question would not be protected to any extent after the transfer.

DISCUSSION

The Employment Division (division) is the prime sponsor of the Comprehensive Employment and Training Act (CETA) serving the balance of the State of Oregon not served by other prime sponsors in the state. The division employs, with federal funds, several individ­uals to administer the CETA pro­gram. As administrators of the CETA program, these individuals are classified employes and enjoy all the rights attendant thereto. ORS 240.210. These individuals, therefore, enjoy greater status than do recipients, beneficiaries or trainees of the CETA program who, pursuant to ORS 240.205(16), are in the unclassified service, and who, pursuant to ORS 190.230(1), do not hold positions in state, county or city service for purposes of any state, county, or city merit system or civil service law.

In 41 Op Atty Gen 322 (1981), this office concluded that Oregon's participation as a prime sponsor of CETA programs violates Or Const Art XI, sees 7 and 8, in the absence

of any fund from which the state's potential liability under the pro­gram can be paid. The division, in response to this opinion, is present­ly contemplating the transfer of the above-described administrative duties to a consortium of some 22 counties. However, this would not be a transfer of the program by the state to the consortium. The state would simply cease to be the "Bal­ance of State" prime sponsor; by independent arrangement with the federal government, the consorti­um, or perhaps some other body such as a non-profit corporation, would become prime sponsor. An agreement between the state and the new prime sponsor would be reached to facilitate the change­over, relating to employes, records, etc., but this would be ancillary to the new federal prime sponsor ar­rangement. The first question presented asks what the status of the state employes presently per­forming those duties will be if the proposed transfer occurs.

ORS 236.610 to 236.650 provide certain protections to public em­ployes whose duties are transferred to another public employer. ORS 236.610(1) provides:

"(1) No public employe shall be de­prived of his employment solely because the duties of his employment have been assumed or acquired by another public employer, whether or not an agreement, annexation or consolidation with his present employer is involved. Notwithstanding any statute, charter, ordinance or resolution, but subject to ORS 236.610 to 236.650, the public em­ploye shall be transferred to the employment of the public employer who assumed or acquired his duties, without further civil service examination." (Emphasis added.) "Public employer" is not defined in ORS 236.610 to 236.650. For purposes of those laws, however, counties have been presumed to be "public employers." See 38 Op Atty Gen 2079 (1978); 39 Op Atty Gen 357 (1978). Although a consortium of counties is a separate political entity pursuant to ORS 190.003 et seq., it is our opinion that insofar as such an entity affects the rights and status of public employes, it should be considered a "public em­ployer" to the same extent as indi­vidual counties are considered pub­lic employers for purposes of ORS 236.610 to 236.650.

ORS 236.610(2) defines "public employe" and provides, in part:

"As used in subsection (1) of this sec­tion, 'public employe' means an employe whose salary or wages is paid from public funds. . . ."

Although the positions of the em­ployes in question are federally funded, those employes are never­theless compensated with public funds and are otherwise classified employes. Accordingly, those em­ployes are "public employes" within the purview of ORS 236.610(2).

We have noted above that the CETA program will not be trans­ferred by the state to the consorti­um. But ORS 236.610(1) does not require such a transfer directly by one public employer to another; it is applicable where "the duties of his employment have been assumed or acquired by another public employ­er." The state's current CETA ad­ministrative duties would be as­sumed or acquired by the consorti­um, and the statute would be applicable.

ORS 236.620 describes the sta­tus of a transferred employe and provides:

"A public employer who receives a transferred employe under subsection (1) of ORS 236.610, including an employe whose transfer is provided for by an agreement under ORS 190.010, shall place that employe on its employe roster, subject to the follow­ing:

"(1) If the employe was serving a proba­tionary period with his employer at the time of transfer, his past service on probation shall apply on the regular probation require­ments of the transferee employer.

"(2) Notwithstanding any other provi­sion of law applicable to a retirement system for employes of the prior employer or of the transferee employer, the employe at his option may elect to continue under any retirement system in which he was partici­pating prior to his transfer or, if he meets the qualifications therefor, he may elect to participate in the retirement system avail­able to employes of the transferee employer. The employe's election shall be in writing and made within 30 days after the date of his transfer. If the employe elects to contin­ue under the retirement system in which he was participating prior to his transfer, he shall retain all rights and be entitled to all benefits under that system, he shall continue to make contributions to that system and the transferee employer shall make contribu­tions on his behalf to that system as required of employers participating in that system, as if the transfer had not occurred.

"(3) The employe shall retain the sen­iority he accrued under his prior employ­ment, but no regular employe of the transfer­ee employer shall be demoted or laid off by reason of that seniority.

"(4) The employe otherwise shall enjoy the same privileges and be subject to the same regulations as other employes of the transferee employer." (Emphasis added.) In 38 Op Atty Gen 2079 (1978), the foregoing provisions were dis­cussed at length. Pursuant to ORS 236.620, a transferred employe (1) retains past service on probation, (2) may elect to continue to partici­pate in the Public Employes Retire­ment System or to participate in the retirement system available to em­ployes of the transferee employer, (3) retains the seniority accrued under prior employment, and (4) otherwise enjoys the same privileges and is subject to the same regula­tions as other employes of the trans-feree employer. It should be particu­larly noted, however, that ORS 236.620(3) protects incumbent em­ployes of the transferee employer from demotion or layoff in order to accommodate a transferred employe with greater seniority. Accordingly, employes of the division now per­forming the administrative duties of the CETA program could not displace incumbent county em­ployes after the transfer of duties to the consortium of counties.

ORS 236.630 describes the au­thority of the transferee employer over a transferred employe and provides:

"A public employer who receives a transferred employe under subsection (1) of ORS 236.610 shall place that employe in a position comparable to the position he en­joyed under his prior employment, subject to the following:

"(1) The transferee employer, in deter­mining a comparable position, shall consider the employe's educational and physical qualifications, experience, and the salary, duties and responsibilities of his prior em­ployment.

"(2) If the transferee employer finds that no comparable position exists under subsec­tion (1) of this section, the employe shall be offered a lesser position, if such position is available, according to his qualifications, by the transferee employer. The finding and action of such employer under this subsec­tion, and subsection (3) of this section shall be subject to a hearing upon the employe's request and subject to review under ORS 34.010 to 34.100.

"(3) If the transferee employer finds that no position exists, the employe shall be listed as a regular laid-off employe and shall have priority to appointment over other persons eligible for any position for which he is qualified" (Emphasis added.) It is clear from the foregoing provi­sions that a transferred employe is not guaranteed any employment with the transferee employer. Rather, the transferee employer is required to provide the transferred employe only with a position com­parable to the one the transferred employe occupied under his or her prior employment, or if no such position exists, to whatever lesser position is suitable and available. If no suitable position exists, subsec­tion (3) of ORS 236.630 provides that the transferred employe shall be placed on the layoff list of the transferee employer and shall have priority over other applicants for any future suitable position.

Finally, ORS 236.640 provides:

"At the end of a cooperation agreement the employe transferred shall be entitled to his position with the transferring employer prior to transfer, if he has remained an employe of the transferee employer in good standing to the termination of the agree­ment."

Under ORS 236.610(1) the previous­ly discussed protections are applica­ble . . whether or not an agree­ment, annexation or consolidation with his present employer is in­volved." (Emphasis added.) ORS 236.640, however, is applicable only if the functions were transferred under agreement. The proposed consortium of counties would not take over the state's CETA func­tions by agreement with the state, but would replace the state by agreement with the federal govern­ment. Even if there is a state-consortium agreement with respect to mechanics of the transfer, this is not the sort of cooperation agree­ment for operations of a govern­mental program which is contemp­lated by ORS 236.640. This statute, therefore, is inapplicable to the contemplated transfer of CETA duties. The second question presented asks how the status of the employes in question will be affected if the CETA duties are transferred to Oregon non-profit organizations. ORS 236.610(2) provides in part:

'"[P]ublic employer' includes an Oregon nonprofit corporation that has accepted, by agreement, the transfer of a public facility from a political subdivision of this state for maintenance and operation." (Emphasis added.) Accordingly, if the CETA duties are transferred to Oregon nonprofit organizations, the employes con­cerned would enjoy the protection of ORS 236.610 to 236.650 only if there is a transfer of a public facili­ty by agreement. As indicated above, any transfer of CETA func­tions would not be by agreement, and the statutory protections would not be available to affected employes. The final question presented asks to what extent the status of the employes concerned would be affected by a transfer of CETA duties to the federal government. Oregon law does not have jurisdic­tion over federal agencies. (US Const Art I, sec 8.) Therefore, the employes concerned would not be protected by ORS 236.610 to 236.650 should the duties they per­form be transferred to the federal government.

DAVE FROHNMAYER

Attorney General

DF:WFH

It may be asserted that ORS 236.640 cannot constitutionally be implemented in any case, because it would create an obligation (debt) under Or Const Art XI, sec 7 chargeable against future state revenues. However, the future reinstatement and employes entitled to it would be subject, just as any other employes with a right to continued employ­ment are subject, to existence of the position and availability of funds to pay for it.

In 38 Op Atty Gen 2079, supra at 2085-2086, it was concluded that a "program" could be a "public facility." We do not need to decide in this case whether the CETA program could or should be deemed to be a "public facility."

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