Public Employees and Tenure in Oregon

If you’re a public employee, the question of whether your position is a political or career appointment can be very important. Political appointees, of course, are more directly subject to the whims of those who appointed them, and enjoy fewer protections against termination than career employees. In fact, in Oregon, there are legal limits on how long political appointees, and some other government employees, can be hired.

In 1927, the Oregon Supreme Court ruled that elected officials can’t make hiring decisions that bind their successors. As a result, employment of political appointees ends when the term of the appointing official or council expires. (Of course, they can be reappointed if the incumbent is reelected.) Jacobberger v. School District No. 1, 122 Or 124, 256 P 652 (1927), (free online copy not located).

The court in Jacobberger noted, however, that this only applies to positions with a governmental function. Other positions can be hired indefinitely or for a term that expressly extends beyond the appointing official. For example, the Attorney General has a practice of making the final decision on all lawyers hired by the Justice Department, but most of these positions are considered nongovernmental and may be hired on an indefinite basis (subject to funding).

This leads to the question of what is a governmental function and what is a proprietary function. Several questions are asked to answer that question.

1. Does an elected board or official have supervisory authority?

2. Does the elected board or official have termination authority?

3. Does the employee make discretionary decisions using authority delegated to the employee by the board or official?

Brunick v. Clatsop County, 204 Or App 326, 333-34 (2006), <http://www.publications.ojd.state.or.us/docs/A122339.htm&gt;.

Reading the job description or the law or rule creating the position will often give guidance how these factors apply to a particular position. For example, in Brunick, the county jail commander’s position was held to be governmental, under the supervision and control of the sheriff and included making discretionary decisions delegated by the sheriff.

A second issue arises when an appointment is made by a city council or board of county commissioners with staggered terms. In this case, the appointment may not extend beyond the terms of a majority of the council. Board of Klamath Cty. Comm. v. Select Cty. Employees, 148 Or App 48, 939 P2d 80, <http://law.justia.com/cases/oregon/court-of-appeals/1997/148-or-app-48.html&gt;, rev den, 326 Or 57 (1997). Because most cities, counties, and districts have an odd number of councilors and use a rotation with an even number of years, there will be at least one year in which more seats are up for election. When this year falls may affect the permitted length of a political hire.

Most government jobs will be lower-level positions not subject to this “political turnover” restriction. If, however, you are in consideration for one that is, you may want to talk to a lawyer to get an opinion on how long you can be hired for. Contracts that exceed the maximum length are not shortened to the maximum. They are considered void, and the hire becomes at-will. Graves v. Armando, 307 Or 358, 361, 768 P2d 910 (1989), <http://law.justia.com/cases/oregon/supreme-court/1989/307-or-358.html&gt;. As a result, job security can be more unpredictable than you might expect. You may want to be cautious about asking for a longer contract than can be enforced.

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