Miller v. City of Portland , 356 Or. 402 ( 2014 )

402 October 30, 2014 No. 67
IN THE SUPREME COURT OF THE
STATE OF OREGON
John MILLER,
Randy Olson, Herbert Goss, Douglas Babcock,
Henry Jackson, and Michael Palin,
Petitioners on Review,
v.
CITY OF PORTLAND,
an Oregon municipal corporation,
Respondent on Review.
(CC 081014715; CA A145318; SC S061421)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 16, 2014.
Montgomery W. Cobb, Montgomery W. Cobb, LLC,
Portland, argued the cause and filed the brief for petitioners
on review.
Franco A. Lucchin, Deputy City Attorney, Portland,
argued the cause and filed the brief for respondent on review.
James S. Coon, Swanson Thomas Coon & Newton,
Portland, filed a brief on behalf of amicus curiae Oregon
Trial Lawyers Association.
BREWER, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings.
Balmer, C. J., dissented and filed an opinion, in which
Landau, J., joined.
_____________
*  Appeal from Multnomah County Circuit Court, Richard Maizels, Judge pro
tem. 255 Or App 771, 298 P3d 640 (2013).
Cite as 356 Or 402 (2014) 403
The Portland City Charter requires it to provide disability benefits to fire
employees who suffer injuries in the course of their employment that render them
“unable to perform [their] required duties,” with a minimum disability benefit of
25 percent of the employee’s base pay, “regardless of the amount of wages earned
in other employment.” Plaintiffs were fire employees who had suffered disabling
injuries; the city originally determined that they were unable to perform their
“required duties” and paid them disability benefits. Years later, the city created
new job assignments with the same job classifications that plaintiffs had previ-
ously held. The city maintained that plaintiffs were no longer disabled, required
plaintiffs to return to work, and discontinued paying them the disability benefit.
Plaintiffs brought a civil action against the city for breach of contract. The circuit
court granted summary judgment for the city, holding that plaintiffs could not
proceed with their action because they had not exhausted their administrative
remedies and that the city had not breached its contract. The Court of Appeals
affirmed in part and reversed in part, concluding that only plaintiff Olson had
failed to exhaust administrative remedies, but that the city was entitled to sum-
mary judgment on the breach of contract issue. Held: (1) The city charter’s use of
the term “required duties” means core duties — those duties that are necessary
or essential to the job; (2) there was a genuine issue of material fact as to whether
the duties of plaintiffs’ new job assignments were the “required duties” for the
job classifications that plaintiffs had previously held; and (3) plaintiff Olson was
not required to exhaust his administrative remedies. The decision of the Court of
Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.
404 Miller v. City of Portland
BREWER, J.
Plaintiffs had been fire fighters for the city of
Portland when they suffered disabling injuries. The charter
for the city requires it to provide disability benefits to its
police and fire employees who suffer injuries in the course
of their employment that render them “unable to perform
[their] required duties,” with a minimum disability bene-
fit of 25 percent of the employee’s base pay, “regardless of
the amount of wages earned in other employment.” The city
originally determined that plaintiffs’ disabilities made them
unable to perform their “required duties” and paid them dis-
ability benefits. Years later, however, the city created new
job assignments that included some of the duties within the
job classifications that plaintiffs had held when they were
injured. Because the city gave the new job assignments the
same job classifications that plaintiffs had previously held,
the city maintained that plaintiffs were no longer disabled.
The city therefore required plaintiffs to return to work and
discontinued paying them even the minimum disability
benefit.
Plaintiffs brought a civil action against the city for
breach of contract, and the circuit court granted summary
judgment for the city. The Court of Appeals affirmed in part
and reversed in part. Miller v. City of Portland, 255 Or App
771, 298 P3d 640 (2013). On review, we conclude that the
city charter’s use of the term “required duties” means core
duties—those duties that are necessary or essential to the
job. Because there is a genuine issue of material fact as to
whether the duties of plaintiffs’ new job assignments were
the “required duties” for the job classifications that plain-
tiffs previously held, we further conclude that the circuit
court erred in granting summary judgment in favor of the
city. Accordingly, we affirm in part and reverse in part the
decision of the Court of Appeals, and we reverse the judg-
ment of the circuit court and remand to that court for fur-
ther proceedings.
FACTS
As noted, the circuit court granted summary judg-
ment for the city. Because plaintiffs were the nonmoving
parties, we set out the facts (and the inferences from those
Cite as 356 Or 402 (2014) 405
facts) in the light most favorable to them. See ORCP 47 C (on
summary judgment, circuit court must determine whether
there is no genuine issue of material fact “based upon the
record before the court viewed in a manner most favorable
to the adverse party”); Loosli v. City of Salem, 345 Or 303,
306 n 1, 193 P3d 623 (2008).
Plaintiffs were all hired by the city to work for
Portland Fire and Rescue under the job classification “Fire
Fighter.”1 They were first hired between 1980 and 1990. At
all relevant times, Chapter 5 of the city charter provided
for a Fire and Police Disability and Retirement Fund (the
disability fund).2 Briefly, the disability fund provides ben-
efits for (among other things) member employees who are
injured on the job. The test for benefits is whether the mem-
ber employee is “unable to perform the Member’s required
duties.” Portland City Charter § 5-306(b). Disability ben-
efits include payments based on the member employee’s
base pay at the time of the injury, decreased by the member
employee’s earnings through “other employment.” See id.
§ 5-306(e). “[R]egardless of the amount of wages earned in
other employment,” however, while disabled, the employee
would receive a minimum payment of 25 percent of base pay.
Id. § 5-306(e) 4.
Plaintiffs suffered disabling injuries while in the
course of their employment. The city does not dispute that it
(1) determined that plaintiffs were “unable to perform [their]
required duties”; (2) gave them medical layoffs; and (3) paid
them disability benefits for several years. The city also does
not assert that plaintiffs’ medical conditions have improved
in a way that would permit them to perform the “required
1
Plaintiff Miller was later promoted to the job of “Fire Inspector” in 1999.
In 2007, plaintiff Babcock had started to return to work as the city required
before he tested and was given the “Fire Inspector 1” classification. The city does
not assert that those factual differences affect the appropriate legal analysis on
review. We do not otherwise decide whether those factual differences might affect
the rights of either of those individual plaintiffs to obtain relief in this action.
2
The charter provisions have been amended multiple times over the years.
However, for purposes of simplicity, we will refer to the relevant city charter pro-
visions as they exist today. We do so because the differences between the vari-
ous versions do not appear to have any legal import to the issues presented to
this court. That is, for purposes of our analysis here, the relevant provisions are
essentially identical from version to version.
406 Miller v. City of Portland
duties” initially used to determine that plaintiffs were dis-
abled. Nor does the city assert that the duties included in the
job classifications that plaintiffs had held when they became
disabled have changed since plaintiffs became disabled.
The summary judgment record does not show pre-
cisely what the city considered plaintiffs’ “required duties”
to have been when they became disabled. The record does,
however, include more general evidence of the duties of a
“Fire Fighter.” The description contained in the city’s official
“Fire Fighter Classification” document provides:
“This is general duty fire fighting work. Employees
occupying positions of this class are responsible for the pro-
tection of life and property through the suppression and
prevention of fires and in the response to emergency calls.
Major elements of the work include participating in super-
vised drills, training in fire fighting skills and rescue tech-
niques, and participation in hydrant and building inspec-
tion activities.”
A Fire Fighter must be able to perform firefighting tasks in
any number of different situations:
“All employees of this class perform almost all fire fighting
tasks associated with an engine, truck, rescue squad, or
fire boat company, since personnel are rotated for adminis-
trative and personal reasons.”
The classification document goes on to list examples of work
that a Fire Fighter may be required to perform in differ-
ent contexts. For example, the duties of a Fire Fighter with
an engine company include laying and connecting hose to a
hydrant and holding nozzles to direct fog or water streams.
The duties of a Fire Fighter with a truck company include
raising ladders and rescuing building occupants. The duties
of a Fire Fighter with a fire boat company include function-
ing as a deckhand and operating the boat engine and pumps.
After plaintiffs were determined to be disabled and
placed in medical layoff status, they turned to different pur-
suits. Some obtained other employment or became involved
in business ventures, while one began to take care of his
child full time. One moved to eastern Oregon, and a second
sold his home and moved to Mexico.
Cite as 356 Or 402 (2014) 407
Beginning in 2006, the city instituted a “Return to
Work” policy and program. The city’s “Return to Work” pol-
icy provided that the city would identify “restricted duty”
assignments that would be
“suitable for a member whose restrictions are of a perma-
nent nature and prevent the member from performing
front-line fire fighting or police work.”
Under that program, the city created new job assignments, such
as “low hazard fire inspector,” with duties that plaintiffs could
perform within the limitations imposed by their disabilities.
There is no indication in the record that the city
rewrote its job classifications under the Return to Work pro-
gram. Instead, the city selected duties from within existing
job classifications, designated the resulting aggregations
of duties as “restricted duty” assignments, and gave those
assignments the same job classifications that plaintiffs had
held when they became disabled.3 Although the restricted
duty assignments were composed of subsets of the duties
in plaintiffs’ respective job classifications at the time that
they became disabled, those assignments excluded many of
the “[m]ajor elements of the work” described in the quoted
Fire Fighter classification document. The city then deter-
mined that plaintiffs no longer qualified for disability ben-
efits because plaintiffs could perform the “required duties”
of the new restricted duty assignments. Accordingly, the
city ceased making disability payments to plaintiffs without
regard to whether they accepted the new jobs.
Five plaintiffs accepted the jobs. Although the city
ceased paying them disability benefits, the director of the
disability fund never provided those plaintiffs with any for-
mal notice that their benefits had been discontinued. The
sixth plaintiff, Olson, did not accept the proffered job. He
was the only plaintiff who received formal notice of the ter-
mination of his benefits.
3
For most plaintiffs, the job classification was “Fire Fighter.” In Miller’s
case, the city designated the job as being in the “Fire Inspector” classification. As
noted, Babcock tested into the “Fire Inspector 1” classification.
Plaintiffs dispute whether the city lawfully and properly designated the new
restricted duty assignments as within the classification “Fire Fighter.” For pur-
poses of this opinion, we need not resolve that question.
408 Miller v. City of Portland
The interim director of the disability fund sent a
letter to Olson dated April 12, 2007, stating that, in March
2007, Olson had been medically approved to perform the job
duties of a low hazard fire inspector and that he had been
directed to report for duty on April 5, 2007. The letter then
stated that Olson’s disability benefits had been terminated
effective April 5, 2007, because he was no longer disabled or
eligible for benefits. The letter continued:
“You have 14 days from the date of this letter to provide
a written response for the Director’s consideration.
“If the Director does not hear from you within the
14-day time frame, this denial is affirmed and you then
have 60 days from April 26, 2007 to appeal to a hearings
officer.  * * *”
On April 26, 2007—within the 14-day period—Olson’s attor-
ney sent a letter to the director asking her to reconsider the
termination of his benefits. Neither the director nor the city
took any action in response to Olson’s request.
PROCEDURAL POSTURE
As noted, plaintiffs commenced a civil action
against the city for breach of contract. In their complaint,
plaintiffs alleged that the city was obligated by contract to
pay them disability benefits, either pursuant to the terms
of the charter or based on written and oral representations
of city employees, and that the city had breached that con-
tract. Plaintiffs sought damages and injunctive relief for the
asserted breach.
The city moved for summary judgment, offering a
number of different arguments. One was procedural: The
city contended that plaintiffs were not entitled to proceed
with the action because they had failed to exhaust their
administrative appeal rights. The city also sought summary
judgment on the merits. The city contended that the provi-
sions of the city charter did not form a contract for disabil-
ity benefits with plaintiffs, and that, pursuant to the char-
ter, any written and oral representations by city employees
could not form a contract in the absence of a city ordinance.
Furthermore, if there was a contract, the city asserted, it
had not breached that contract, because the city had offered
Cite as 356 Or 402 (2014) 409
plaintiffs jobs with the same job classifications that they
had held when they were injured. According to the city, it
was irrelevant that those jobs had duties that constituted
only a subset of the duties included in the job classifications
that plaintiffs had held when they became disabled, because
“required duties” under the charter meant whatever duties
within those job classifications that the city chose to require.
The circuit court granted summary judgment for
the city. The court primarily held that plaintiffs had failed
to exhaust their administrative remedies. In addition, how-
ever, the court made alternative rulings regarding the city’s
other arguments. The court concluded that there was evi-
dence of a contract, and so it denied that aspect of the city’s
summary judgment motion. It agreed with the city, however,
that the city had not breached the terms of that contract,
and so it was also entitled to summary judgment on that
basis. Finally, the court held that there was a genuine issue
of material fact as to whether the city had violated a duty
of good faith and fair dealing by making certain oral and
written representations to plaintiffs.
Plaintiffs appealed to the Court of Appeals. That
court first held that the circuit court had erred in conclud-
ing that plaintiffs, other than Olson, had failed to exhaust
their administrative remedies. The court explained that the
director had not made the sort of “decision” contemplated
either by the charter or in the disability fund’s administra-
tive rules that would trigger plaintiffs’ obligation to request
a hearing. 255 Or App at 780-81. However, the Court of
Appeals agreed with the circuit court that Olson had failed
to exhaust administrative remedies; the court reasoned
that, regardless of the terms of the letter from the interim
director, Olson was not excused from the need to request a
hearing. Id. at 781-85.
The Court of Appeals then turned to the merits.
After noting that the circuit court had denied summary
judgment on the question whether a contract had been
formed, id. at 785 n 8, the court considered whether sum-
mary judgment was appropriate on the breach of contract
issue. The Court of Appeals agreed with the circuit court
that the city was entitled to summary judgment on that
410 Miller v. City of Portland
question. In so concluding, the court reasoned that, as used
in the city charter, “required duties” meant “any tasks that
the member could have been commanded to do at the time the
member was actively employed” by the city and that it was
undisputed that the new job assignments given to plaintiffs
consisted of duties that the city could have assigned them
before they became disabled. Id. at 787 (emphasis added).
Furthermore, the court held that the written and oral rep-
resentations made by city employees had not become part
of the contract. Id. at 788-90. Because the circuit court had
concluded that there was a genuine issue of material fact
on the question whether the city had breached its duty of
good faith and fair dealing, however, the Court of Appeals
remanded to the circuit court for further proceedings. Id. at
790.
On review, plaintiffs challenge the Court of Appeals’
conclusions that Olson failed to exhaust his administrative
remedies and that the circuit court properly granted sum-
mary judgment to the city on the breach of contract claim.
We ordinarily would begin with the exhaustion doctrine,
because a failure to exhaust would preclude plaintiffs from
bringing any action at all, regardless of its merit. However,
because that issue pertains to only Olson, we postpone our
discussion of it to follow our consideration of the merits of
plaintiffs’ breach of contract claims.4
BREACH OF CONTRACT
As a preface, we note that the circuit court concluded
that there was a genuine issue of material fact as to whether
a contract had been formed for the disability benefits at
issue in this case. The Court of Appeals assumed without
deciding that the pertinent charter provisions constituted a
4
The city asserts in its brief on the merits that the Court of Appeals erred
when it held that the five plaintiffs other than Olson were not required to exhaust
their administrative remedies. See 255 Or App at 778 (summarizing Court of
Appeals’ conclusion as to plaintiffs other than Olson). We do not reach that issue.
Generally, the questions before this court on review are limited to those “that
the petition or the response claims were erroneously decided by” the Court of
Appeals. ORAP 9.20(2) (unless this court otherwise limits questions on review).
Here, the city filed neither a response to plaintiffs’ petition for review nor a peti-
tion for review in its own right. Although this court has discretion to consider
“other issues that were before the Court of Appeals,” id. (court “may” consider
those issues), we decline to do so here.
Cite as 356 Or 402 (2014) 411
contract. 255 Or App at 785 n 8. For purposes of our review,
the city also expressly assumes that those provisions were
part of a contract. We therefore assume that the provisions
of the city charter created a contractual obligation, without
addressing the specific mechanism by which that happened.
Instead, we consider whether the city was entitled to
summary judgment on the ground that there was no breach
of the contract that had been formed. As noted, the parties’
dispute focuses on how the charter for the City of Portland
uses the term “required duties.” The charter was adopted
and amended by the voters of that city. See Or Const, Art
XI, § 2 (“The legal voters of every city and town are hereby
granted power to enact and amend their municipal charter,
subject to the Constitution and criminal laws of the State of
Oregon[.]”). We interpret legislation enacted by the voters
in the same way that we interpret legislation enacted by the
legislature, by first examining the text in context, together
with any relevant legislative history. See Burke v. DLCD,
352 Or 428, 432-33, 290 P3d 790 (2012) (so explaining).
The charter provision that is most significant here
is section 5-306, which defines when an employee is dis-
abled. It provides:
“An Active Member shall be eligible for the service-
connected disability benefit when unable to perform the
Member’s required duties because of an injury or illness
arising out of and in the course of the Member’s employ-
ment in the Bureau of Police or Fire.”
Portland City Charter § 5-306(b). A “Member” is any of
“those persons who are permanently appointed as sworn
employees in the Bureau of Police or Fire” (with certain
exceptions not relevant here). Id. § 5-301(a). An “Active
Member” is “a person who is actively employed as a Member
in the Bureau of Fire or Police and does not include a
Member receiving disability or retirement benefits under
this Chapter.” Id. § 5-301(b).
The charter also addresses what happens during
the period when a member remains disabled—that is, “the
period [that] the Member continues to be eligible” under
section 5-306(b). See id. § 5-306(e). The disabled member
412 Miller v. City of Portland
is obligated to seek “other employment.” See id. § 5-306(e) 5
(“The Fund Administrator may suspend or reduce the benefit
if the Member does not cooperate in treatment of the disabil-
ity or in vocational rehabilitation or does not pursue other
employment.”). The charter then provides a schedule of ben-
efits derived from the disabled employee’s base pay, reduced
by any earnings from “other employment.” Id. § 5-306(e) 1-4.
As long as the member “continues to be eligible”—that is, as
long as the member remains “unable to perform the Member’s
required duties”—the member is entitled to a minimum dis-
ability benefit of 25 percent of base pay. Id. § 5-306(e) 3-4.
The city acknowledges that the phrase “the Member’s
required duties” refers to the “required duties” of the job clas-
sification that the member had held when he or she became
disabled.5 In other words, the city does not argue that it can
add duties to the duties included in the job classifications
that plaintiffs held when they became disabled. Nor does
the city argue that “the Member’s required duties” permits
it to look to the “required duties” of any other job classifica-
tion within the Bureau of Fire—“Harbor Pilot” or “Assistant
Public Education Officer,” for example. Rather, the city
argues that “required duties” means “any conduct or tasks
that the Fire Bureau could have required plaintiffs to do at
the time they were still actively employed.” (Emphasis and
capitalization deleted.) For the majority of plaintiffs in this
case, the relevant question would be what are the “required
duties” for the job classification “Fire Fighter.”
The Court of Appeals held, and the city agrees, that
the word “require” means “something compelled or com-
manded to be done.” See 255 Or App at 786 (citing Webster’s
Third New Int’l Dictionary 1929 (unabridged ed 2002)). That
does summarize one definition of “require”:
“5 : to impose a compulsion or command upon (as a person)
to do something: demand of (one) that something be done
or some action taken : enjoin, command, or authoritatively
insist (that someone do something)[.]”
5
Thus, the city does not assert that it is significant that section 5-306 of
the city charter expressly refers to the “Member’s” required duties, not those of
a position or job classification. Nor is there any indication in the record that the
city created light or limited duty jobs for plaintiffs that were specifically tailored
for them as individuals.
Cite as 356 Or 402 (2014) 413
Webster’s at 1929. Based on the city’s interpretation of
“required duties,” the city maintains—and the Court of
Appeals agreed—that the city could “require” plaintiffs to
perform duties selected from those within the job classifica-
tion; those duties then would become the test for continuing
disability. See 255 Or App at 786-87 (so holding).6
As we now explain, we think that both the Court
of Appeals and the city erred in analyzing the meaning of
“required duties.” To determine which meaning should be
attributed to “required,” we first examine the word that
“required” modifies: “duty.” A “duty” is something that one
is obligated to perform. In context, the word “duty” means:
“2 a : obligatory tasks, conduct, service, or functions enjoined
by order or usage according to rank, occupation, or profes-
sion .”
Webster’s at 705 (emphasis in original). When the city argues
that “required” means “something compelled or commanded
to be done,” then, it arguably renders the word “required”
superfluous. That is, a “duty” is a task that an employee
is already obligated to perform as part of that person’s
job. Accordingly, if one accepts the city’s interpretation of
“required” as a command by the employer, then, in a fun-
damental sense, all of an employee’s duties are “required
duties.”
Accepting the city’s understanding of “required duties”
also would result in an interpretation that would disadvan-
tage both the city and its employees. It would disadvantage
the city, because a member employee who became disabled
6
In its brief, the city also asserted that an administrative rule that purport-
edly predated the relevant text served as context to show that “required duties”
meant whatever duties the city chose to assign. See Fire and Police Disability,
Retirement and Death Benefit Plan Administrative Rules III A (“A Member who
is unable to perform his or her usual job but is able to do other work to which the
Member may be assigned in his or her respective Bureau, is ineligible for disabil-
ity benefits if such a job is available to the Member.”). At oral argument, how-
ever, the city acknowledged that the relevant charter provision actually had been
adopted first. The relevant text of Portland City Charter § 5-306(b)—providing
that a member employee was disabled when “unable to perform the Member’s
required duties”— had been adopted in 1989, while the rule had not been promul-
gated until 1991. Accordingly, the administrative rule is not context that would
have affected how the voters in 1989 had understood the text. See Stull v. Hoke,
326 Or 72, 79-80, 948 P2d 722 (1997) (noting that subsequent legislation was not
context for previously enacted statute).
414 Miller v. City of Portland
from performing any duty associated with a job—no mat-
ter how incidental or trivial that task was—could credibly
claim to be entitled to full disability benefits.7 And, it would
disadvantage member employees, because a member’s sta-
tus could change from fit to disabled and back again at any
time, depending on which subset of duties in the pertinent
job classification that the city decided to “require” on a par-
ticular day. We do not think that the voters who adopted the
charter, or the city, or the member employees would have
understood the disability fund to work that way.
Instead, the word “required” would seem to carry
a different meaning in this context, one that focuses on the
core duties of a job, that is, those duties that are necessary
or essential to the job. In that vein, the word “require” also
means:
“3 a : to call for as suitable or appropriate in a particu-
lar case : need for some end or purpose b : to demand as necessary or essential (as
on general principles or in order to comply with or satisfy
some regulation) : make indispensable ”
Webster’s at 1929 (alteration and emphases in original).
That meaning better fits the nature of the charter provi-
sions creating the disability fund, because the city would
want to pay disability benefits to only employees who are
unable to perform the necessary or essential tasks of the
job. Thus, a fire fighter who cannot perform some inciden-
tal task is not disabled, but a fire fighter who cannot fight
fires almost certainly is.8 Viewed in that way, the required
duties of the job classifications that the city has created are
7
The city might well reply that, if its interpretation of the term “required
duties” is correct, the disadvantage at most would be temporary, because the city
could summarily reassign the disabled member to a new job in the same classifi-
cation with fewer required duties that the employee could perform. Granted, but
the question remains why the voters would have intended to place either the city
or its employees in a situation where such maneuvering either would be neces-
sary or permissible.
8
It makes little sense, for example, to conceive of a fire fighter as having only
the duties of, say, a receptionist.
Cite as 356 Or 402 (2014) 415
co-extensive with what it means to be disabled from per-
forming those jobs. By contrast, if “required duties” means
any one or more duties constituting a subset of plaintiffs’ job
classifications when they became disabled—no matter how
trivial or incidental to the essential functions of their jobs—
then it is difficult to understand how they became disabled
in the first place.
The charter’s treatment of “other employment”
supports the conclusion that disability is to be determined
with reference to a particular job classification. The charter
contemplates that one can be disabled from being a “Fire
Fighter” while still being capable of performing gainful
activity. In fact, the charter expressly provides that a dis-
abled employee will continue to receive disability payments
of 25 percent of base pay, even if the disabled employee’s
other employment pays more than the former job with the
city. In addition, “other employment” necessarily means
employment that does not involve performing the “required
duties” of the disabled employee’s former job classification.
Nowhere does the charter focus on an employee’s job title; it
is the “required duties” of the job that has legal significance.
That implies that, if the city gives a disabled employee a
job with different “required duties,” then the employee has
received “other employment”—not that the employee is no
longer disabled.
We also consider prior versions of the charter as
context in interpreting its meaning. See State v. McDowell,
352 Or 27, 30-31, 279 P3d 198 (2012) (in interpreting stat-
ute, “[c]ontext may include * * * prior versions of the same
statute”). The voters first enacted Chapter 5 of the Portland
City charter in 1948, creating the Fire and Police Disability,
Retirement and Death Benefit Plan. Like the current ver-
sion of the charter, the provisions of the plan made entitle-
ment to benefits contingent on a member being unable to
perform “required duties.” Section 5-115 of the 1948 charter
stated:
“BENEFITS UPON SERVICE CONNECTED DIS-
ABILITY. Upon duly verified application of a member and a
finding by the Board that through injury or sickness caused
by the performance of duty or in line of duty the member
416 Miller v. City of Portland
has been unable to perform his required duties, said mem-
ber shall be paid disability benefits * * * until said member
recovers or for a period of one (1) year, whichever period is
shorter. * * * In the event said member has not recovered
at the end of one year he shall receive after said first year
and until he recovers, but for a period not to exceed three
additional years, disability benefits from the fund equal to
but not in excess of his full salary * * * . If the disability
continues after the end of four (4) years, the member shall
be paid benefits from the fund in an amount equal to a
maximum pension until he recovers or until he would have
become eligible for a maximum pension by reason of years
of service or age, at which time he shall be retired by the
Board and receive said maximum pension. * * *
“* * * * *
“In the event of recovery of any member from service con-
nected or occupational disability, he shall upon certification
by the Board, be restored to service in the rank he occupied
at the time of his retirement or disability and his pension or
disability benefit shall cease upon restoration to service.”
(Emphases added.)
When considered as a whole, the 1948 charter
is inconsistent with the city’s interpretation of the term
“required duties.” First, disability itself is measured by
whether the member “has been unable” to perform the
“required duties,” implying that the “required duties” are
duties that were “required” prior to the time of the disability
determination. Second, the city may cease disability pay-
ments only if the member “recovers,” implying medical recu-
peration rather than any alteration in the duties. And third,
if a member does recover, the member will be “restored to
service in the rank he occupied at the time of his retire-
ment or disability,” implying at least some degree of conti-
nuity between the job before disability and the new job after
recovery. Taken together, those aspects of the 1948 charter
suggest that “required duties” is not a term that the city can
redefine for a particular member after he or she becomes
disabled (at least in the absence of a modification of required
duties for a job classification as a whole).
The voters substantially revised chapter 5 of the
Portland City Charter in 1989, to essentially the form
Cite as 356 Or 402 (2014) 417
that it takes today. In doing so, the voters retained the
term “required duties,” although they modified other text
surrounding it—replacing “has been unable” with “when
unable,” for example. Of course, amendments to statutory
text may modify the meaning of particular terms found in the
text. But the city has not argued—and we cannot identify—
anything about the 1989 modifications that would show that
the voters had intended to change the meaning of the words
“required duties.” The voters merely removed contextual clues
that would have made the problems with the city’s argument
more manifest. Whatever the words “required duties” meant
in 1948, then, they continued to mean in 1989.9
For the foregoing reasons, we reject the city’s inter-
pretation of “the Member’s required duties” as being whatever
subset of duties within plaintiffs’ former job classifications—
irrespective of whether those were or now are the core
duties of those job classifications—that the city chose to
require after plaintiffs became disabled. Instead, we con-
clude that, as used in the city charter, the term refers to
the core duties—those that are necessary or essential—of
whatever job classification the member held at the time that
he or she became disabled. Because the summary judgment
record does not establish beyond dispute the duties of a “Fire
9
In interpreting the charter, we also may consider the history behind the
adoption of the provision. See Ecumenical Ministries v. Oregon State Lottery
Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994) (so noting in context of constitu-
tional amendment adopted through initiative process). In this case, that history
would include the ballot title. See id. We have examined the ballot title for the
1989 amendments, but we find nothing relevant to the particular issue before us.
The ballot title for the 1989 charter amendments read as follows:
“CHARTER AMENDMENT REVISING FIRE AND POLICE PENSION
AND DISABILITY PLAN
“Question:  Shall the City Charter be amended to reform the Fire and
Police Disability, Retirement and Death Benefit Plan?
“PURPOSE
“Reforms plan for new fire and police hires and present employees who
choose it. Improves retirement and survivors benefits. Establishes five
year vesting period. Restricts and reduces disability benefits. Allows ben-
efit changes required by law. Restricts adjustments of retirement and sur-
vivor benefits to percentage adjustment given fire and police employees
in state retirement system. Eliminates employee contributions to plan.
Increases property taxes collected within existing rate levy by approximately
$.39 per $1,000 of assessed valuation. City guarantees to pay full benefits if
levy becomes insufficient.”
418 Miller v. City of Portland
Fighter” or a “Fire Inspector” that are necessary or essen-
tial to those jobs, there is a genuine issue of material fact as
to whether the new assignments given to plaintiffs involved
the “required duties” of their former job classifications that
precludes summary judgment.10
For that reason, we need not reach plaintiffs’ argu-
ment that the “required duties” of a job classification or posi-
tion become fixed when a member employee becomes dis-
abled. Even if the “required duties” were not fixed at that
point in time, the city has not shown that it modified the
“required duties” of the “Fire Fighter” position or that plain-
tiffs are able to perform the core functions of that job classi-
fication. At most, the city showed only that it had assigned
a subset of the duties included in the job classifications that
these plaintiffs held when they became disabled as part of
their new job assignments.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
We turn, finally, to the city’s argument that Olson
failed to exhaust his administrative remedies. The doctrine
of exhaustion of administrative remedies generally provides
that “[j]udicial review is only available after the procedure
for relief within the administrative body itself has been fol-
lowed without success.” Mullenaux v. Dept. of Revenue, 293 Or
536, 539, 651 P2d 724 (1982) (internal quotation marks and
citation omitted; alteration in original). The city argues that
Olson failed to exhaust his administrative remedies because
he did not appeal the decision of the interim director. Olson,
the city maintains, had to request a hearing within 60 days
after the date of the director’s April 12 letter—although the
10
Indeed, the limited record on the question of what constitute the duties of
a “Fire Fighter” suggests that the “Fire Fighter” plaintiffs may remain disabled
and be entitled to disability benefits. The job description for “Fire Fighter” spe-
cifically identified it as a generalist position: “All employees of this class perform
almost all fire fighting tasks associated with an engine, truck, rescue squad, or
fire boat company, since personnel are rotated for administrative and personal
reasons.” The city’s policy statement regarding the Return to Work program,
however, characterizes the new assignments given to plaintiffs as “restricted
duty” assignments, and it specifically states that those “restricted duty” assign-
ments are for member employees whose disabilities prevent them from “perform-
ing front-line fire fighting or police work.” From that, one could infer that the
duties the city assigned to plaintiffs are not the “required duties” of the “Fire
Fighter” position.
Cite as 356 Or 402 (2014) 419
city concedes that the director gave Olson an extra 14 days to
file a written response. To support its argument, the city relies
on the following administrative rule for the disability fund:
“For service-connected and occupational disability ben-
efits * * *, if the Director obtained evidence that * * * the
Member is no longer disabled or eligible * * *, the Director
shall notify the Member of the Director’s decision to sus-
pend, reduce or terminate benefits. A summary of the evi-
dence and the decision shall be provided to the Member. * * *
The Member will have 14 days to provide a written response
for the Director’s consideration. The Member shall also
be notified of the rights under Charter Section 5-202(h)
and the right to appeal for a Hearing as provided for in
Section IV. Any such written request must be filed with the
Director within 60 days after the date of the decision being
appealed.”
Fire and Police Disability, Retirement and Death Benefit
Plan Administrative Rules III G (7) (2007).
The Court of Appeals essentially agreed with the
city’s argument. Regardless of whether the letter from the
director was binding on the city, the court concluded, both
the letter and the rule indicated that the written response
to the director was only an interim step in the administra-
tive review process. 255 Or App at 783-84. According to the
court, the director’s letter neither excused Olson from the
obligation to request a hearing nor prohibited him from
making the request; at most, the letter showed that he had
an extra 14 days in which to make the hearing request. Id.
at 784-85.
The exhaustion doctrine applies “where one seeks
prematurely to obtain judicial review of or judicial inter-
vention into the action of an agency * * * without waiting to
see whether the agency will in fact take the desired action.”
Zollinger v. Warner, 286 Or 19, 25, 593 P2d 1107 (1979). That
doctrine, insofar as applicable here, is judicially created. See
Richard J. Pierce, Jr., 2 Administrative Law Treatise § 15.2,
1219-20 (5th ed 2010) (distinguishing common-law exhaus-
tion requirement from statutory exhaustion requirement);
Mullenaux, 293 Or at 539 (noting that, in tax cases, partic-
ular statute “makes explicit the general rule” that a party
420 Miller v. City of Portland
can obtain judicial relief only if party has exhausted admin-
istrative remedies); Stanbery v. Smith et al, 233 Or 24,
32-33, 377 P2d 8 (1962) (“[t]he majority of state and federal
courts” apply the “general rule against reviewing questions
not presented to the administrative agency”). The exhaus-
tion requirement—at least in its common-law variant—is
“not rigid but flexible” and is intended to promote “orderly
procedure and good administration.” Marbet v. Portland
Gen. Elect., 277 Or 447, 456, 561 P2d 154 (1977) (internal
quotation marks and citations omitted); see also Pierce, 2
Administrative Law Treatise § 15.2 at 1219 (common-law
exhaustion requirement “is flexible and pragmatic”).
We decline to apply the doctrine of exhaustion rig-
idly here.11 The interim director’s letter to Olson expressly
stated that Olson had 14 days to file a written response. By
its terms, the letter negated any possibility that the 60-day
period to request a hearing began to run either from the date
that benefits were terminated (April 5) or from the date of
the letter (April 12). Instead, the letter expressly stated that,
if Olson failed to file a written response, the 60-day period
would begin to run on April 26—a date 14 days in the future,
when the time to file the written response would expire.
Those express statements necessarily implied that the ter-
mination of benefits was provisional and that, if Olson did
file a written response for consideration, the 60-day period to
request a hearing would begin to run if and when the direc-
tor “affirmed” her provisional decision to terminate benefits.
Given those circumstances, it would be difficult to
explain why Olson should have disregarded the director’s
explanation of the hearing process. The director’s letter set
out what reasonably appeared to be the fund’s authoritative
position regarding how the fund would interpret adminis-
trative rule III G (7). Although the rule itself could have
been interpreted differently, the director’s position was not
inconsistent with its text, because the rule does not explain
the relationship between the 14-day response period and the
60-day appeal period. Generally, it is appropriate to defer to
an agency’s plausible interpretation of its own rule if it is not
11
Olson does not argue that the doctrine is inapplicable to a decision of a
local government regarding disability payments.
Cite as 356 Or 402 (2014) 421
inconsistent with the rule’s text or context or with any other
law. See, e.g., Don’t Waste Oregon Com. v. Energy Facility
Siting, 320 Or 132, 142, 881 P2d 119 (1994) (so noting).
Olson did not seek judicial review without waiting
to see what the city would do, see Zollinger, 286 Or at 25; he
acted, and the city failed to respond. Because applying the
exhaustion doctrine against Olson would discourage orderly
procedure and good administration, we decline to do so.
See Welch v. Washington County, 314 Or 707, 716, 842 P2d
793 (1992) (noting in tax context that taxpayers have been
relieved from obligation to exhaust administrative reme-
dies “most often in situations where the taxpayer has been
misled regarding a filing or appeal requirement,” and citing
cases); Pierce, 2 Administrative Law Treatise § 15.2 at 1220
(common-law exhaustion requirement does not apply if “con-
siderations of individual justice, efficiency, or wise judicial
administration support the need for judicial review in the
absence of exhaustion”).
CONCLUSION
To recapitulate: We conclude that Olson was not
required to exhaust his administrative remedies to bring
this action. Accordingly, we reject the circuit court’s primary
rationale for granting summary judgment to the city, and
we reverse on that point. We leave undisturbed the Court
of Appeals’ determination that the other plaintiffs were not
required to exhaust their administrative remedies.
We also reject the circuit court’s alternative ground
for granting summary judgment, which was that, as a mat-
ter of law, the city had not breached its contract with plain-
tiffs. Plaintiffs assert that the city wrongfully discontinued
making disability payments to them. Disability payments
may be discontinued if a member employee becomes able to
perform the “required duties” of the job that the employee
had held at the time of injury. As we have concluded, the
“required duties” of a job means its core duties—those duties
that are necessary or essential to the job. The summary
judgment record does not establish what those “required
duties” are, and the city has not shown that plaintiffs are
able to perform those duties.
422 Miller v. City of Portland
We emphasize the limits of our holding in reviewing
the circuit court’s grant of summary judgment. We do not
mean to suggest that the city is precluded from changing
its job classifications or the duties of those classifications
in accordance with its lawful authority. We also need not
decide whether such a change could cause a previously dis-
abled employee to again become fit for work. And finally, our
conclusion of course does not limit the city’s ability to deter-
mine, as a factual matter, that a former employee is no lon-
ger disabled, in the sense that that employee has sufficiently
recovered from his or her injuries to perform the “required
duties” of the job.
With those provisos in mind, we turn briefly to the
Chief Justice’s dissent, which essentially echoes the city’s
position in this case. The dissent attempts to discount the
redundancy in the city’s interpretation of the term “required
duties” by arguing that, although both words in the term
refer to command or compulsion, “required” “emphasizes the
role of the person or entity doing the requiring,” whereas
“duties” refers to “the set of all the ‘duties’ that could be com-
manded of someone in a particular position.” 356 Or at 428
(Balmer, C. J., dissenting). From that proposed distinction,
the dissent asserts that “ ‘required duties’ are the subset of
those duties that the employer reasonably directs the partic-
ular employee to perform.” Id.
As discussed, our interpretation of “required duties”
focuses not on what particular task a supervisor currently
requires, but on what a supervisor may require. The question
thus is whether a fire fighter will be able to perform those
tasks if and when the need arises.12 In contrast, the interpre-
tation that the city and the dissent advance conflates imme-
diate tasks with overall duties by hinging disability status
on whether a member can perform whatever individual task
a supervisor has asked the member to perform on a par-
ticular day. Thus, the dissent repeatedly refers to “tasks,”
notes that “the city in fact does direct different fire fighters
12
That focus is reflected in the duties listed in the “Fire Fighter” job classi-
fication, which also emphasizes that a “Fire Fighter” needs to be able to perform
“almost all fire fighting tasks associated with an engine, truck, rescue squad, or
fire boat company, since personnel are rotated for administrative and personal
reasons.”
Cite as 356 Or 402 (2014) 423
to perform a wide variety of different tasks, depending on
their work assignment,” and concludes that it “can see no rea-
son why members who are able to perform some needed tasks,
but not others, cannot be directed to perform those tasks they
can perform.” 356 Or at 429 (Balmer, C. J., dissenting). Under
that interpretation, if a supervisor orders a particular fire
fighter to coil a hose, then “coiling a hose” is that fire fighter’s
“required duty” until that task is done. Once the fire fighter
finishes that task, then the fire fighter’s required duty becomes
whatever task the supervisor next directs. On the other hand,
for the city and the dissent, the abilities to direct water or fog
streams with a nozzle, to raise ladders and rescue building
inhabitants, or to function as a deckhand on a fireboat (see
356 Or at 406 (listing those duties)) are irrelevant, unless and
until a supervisor actually directs a particular fire fighter to
perform those particular tasks.13
The difficulty with that interpretation of required
duties is that it does not provide a meaningful way to deter-
mine whether a particular injured member was or remains
disabled and legally entitled to benefits. Adopting it would
mean that, if a member could perform any subset of the
duties in the member’s job classification at the time that the
member became disabled, then the city could at any time
assign that subset of duties to the member and declare the
disability at an end. If that were permissible, it is difficult
to conceive how any of plaintiffs could have been deemed
disabled in the first instance. Equally problematic, as dis-
cussed, is that a member could too easily be considered dis-
abled if the member could not perform some of the tasks
assigned to him or her on a particular day.
The dissent asserts that it is best left to another day
to determine whether the city’s task-centered interpretation
13
We reiterate that the original charter provisions stated that a member
was disabled if the member “has been unable to perform” “required duties,”
and the disability benefits would continue until the member has “recovered.” If
“required duties” meant only whatever subset of duties the city chooses to direct
a member to perform, then the focus should be on what duties the city “is” or
“will” require—not on whether the member “has been unable” to perform those
duties. Furthermore, if the city could eliminate a disability merely by modifying
future duties (even in good faith), then the obligation to end disability benefits
should not have been limited to those situations in which a member has medically
recovered.
424 Miller v. City of Portland
would lead to bad faith or abuse in the manipulation of an
employee’s disability status; after all, the dissent notes, the
question whether the city has breached its duty of good faith
and fair dealing is still a live issue on remand. The question
before us, however, is not whether the city has engaged in
bad faith; rather, the interpretive question is why the voters
would have intended to adopt such a slippery definition of
disability. We conclude that they did not.
Finally, the dissent views our interpretation of
“required duties” as unduly interfering with the city’s pre-
rogatives in managing its disability system. Respectfully, we
do not share that view. As explained above, our interpreta-
tion is not narrow or rigid in the sense that the dissent pos-
its; the question whether the city can change the required
duties of any job classification to comport with technological
advances or to serve its other business purposes is not before
us, and nothing that we have said indicates that the city
cannot make such changes if they are otherwise lawful. Nor
is our objective to impose on the city our own conception of
the essential duties of a fire fighter or any other position in
the city’s workforce. Those duties will be determined based
on the evidence at trial, not judicial preference, and they
will reflect the duties that the city itself considers to be the
essential duties of the job.
In the end, we might speculate at length about why
the city’s voters would have adopted a disability system that
provides a minimum benefit for disabled employees who find
other work. In fact, some might well believe that providing
a minimum benefit would encourage, not discourage, more
self-sufficiency for disabled employees. But that is not our
inquiry. The issue is what the voters intended, not whether
there is cause for some to regret that decision.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is reversed, and the case is remanded to the circuit court for
further proceedings.
BALMER, C. J., dissenting.
The majority adopts a definition of “required duties,”
as that term is used in the Portland City Charter, that is
Cite as 356 Or 402 (2014) 425
neither compelled by the ordinary meaning of those words
nor likely consistent with the intent of the voters when they
adopted that portion of the charter in 1948 or amended it in
1989. The result is a narrow and rigid construction of the
“city constitution,” see Portland Police Assn. v. Civil Service
Board, 292 Or 433, 440, 639 P2d 619 (1982)—an interpre-
tation that prevents the city from reasonably administering
the Fire and Police Disability and Retirement Fund in a way
that is fair to both disabled fire fighters and the city. For
those reasons, I agree with the Court of Appeals that the
city did not breach the express terms of the charter when it
adopted a “return to work” program for disabled fire fighters.
I respectfully dissent.
Section 5-306 of the charter provides that “[a]n
Active Member shall be eligible for the service-connected
disability benefit when unable to perform the Member’s
required duties * * *.”1 The dispute in this case (or at least
this part of this case) involves the city’s assertion that the
“required duties” of a fire fighter may include a subset of the
duties listed in the fire fighter job classification, so that a fire
fighter who is unable to perform all of the duties listed in the
job classification because of a service-connected injury—but
can perform some of those duties—may later be assigned
to a “light-duty” position within the same job classification.
Plaintiffs argue that, if a service-connected disability ren-
ders the fire fighter unable to perform all the duties “nec-
essary to qualify as a Fire Fighter” because of a service-
connected disability, then the fire fighter is disabled—and
remains disabled—even if the fire fighter can perform some
of the duties in the job classification and is directed by the
city to do so. Because the fire fighter is “disabled,” in the
plaintiffs’ view, as long as he or she is unable to perform
the “necessary” duties in the fire fighter job classification,
the fire fighter is entitled—at a minimum and “regardless
of the amount of wages earned in other employment”—to
disability benefits of 25 percent of his or her base pay. See
Portland City Charter § 5-306(e)(4). The benefits for those
persons increase each year, because they are “adjusted to
1
As the majority does, “for purposes of simplicity, [I] will refer to the rele-
vant city charter provisions as they exist today.” Miller v. City of Portland, 356 Or
402, 405 n 2, ___ P3d ___ (2014).
426 Miller v. City of Portland
reflect changes in the rate of Base Pay of the position held by
the Member at disability.” Portland City Charter § 5-306(f).
They generally continue until the member reaches the “dis-
ability retirement age” or the social security retirement age,
Portland City Charter § 5-304(a), at which time the member
begins receiving retirement benefits. Individuals who were
permanent sworn employees at the time of injury and receive
disability benefits continue to be “members,” for purposes of
the disability fund, even if they no longer are active employ-
ees of the Bureau of Fire. Portland City Charter § 5-301.
The majority essentially agrees with plaintiffs’
argument, holding that “required duties” means the “core”
duties of a job. See Miller v. City of Portland, 356 Or 402,
404, ___ P3d ___ (2014). I briefly explain what I view as the
majority’s interpretive error and then turn to what seems
to me to be a definition of that term that is more consistent
with the city charter and more likely to have been intended
by the voters in establishing the disability program.
The majority seeks to define the word “required” by
first examining the word “duty,” which “required” modifies.
The majority takes the obviously correct dictionary defini-
tion and concludes that a “duty” is “something that one is
obligated to perform.” Id. at 413. However, it then rejects
the city’s argument that “required” is “something com-
pelled or commanded to be done.” The majority rejects that
construction on the theory that it would render the word
“required” superfluous, because the word “duty” already
refers to something one is obligated to do. Id. To avoid the
redundancy that it perceives, the majority instead concludes
that the word “required” “would seem to carry a different
meaning in this context, one that focuses on the core duties
of a job, that is, those duties that are necessary or essen-
tial to the job.” Id. at 414. The majority thus views “duties”
as the larger set of tasks identified in a job classification or
position description, and “required duties” as the subset of
those tasks that are necessary or essential for the position.
The majority supports its definition by citing a definition of
“require” listed in Webster’s Third International Dictionary,
which refers to that which is “necessary or essential” and
as “appropriate in a particular case” or necessary to comply
Cite as 356 Or 402 (2014) 427
with “some regulation.” Id. (quoting Webster’s Third New Int’l
Dictionary 1929 (unabridged ed 2002)). From that conclu-
sion, the majority holds that a person who is unable, because
of a service-connected injury, to perform the “core” duties of
the fire fighter is disabled, even if the person is able to per-
form other duties within the fire fighter classification. Id. at
414, 417, 421 (defining “required” duties as “core” duties).
As noted, the majority goes in search of a different
definition of “required” than that proffered by the city and
accepted by the courts below because it concludes that the
definition of “something compelled or commanded to be done”
defines the word “required” to mean, essentially, the same
thing as the word “duties” and therefore renders “required”
superfluous. But the majority is wrong. The text that we are
to construe provides that “[a]n Active Member shall be eligi-
ble for the service-connected disability benefit when unable
to perform the Member’s required duties * * *.” Portland City
Charter § 5-306(b). “Required” in this context, of course,
is an adjective modifying the noun “duties,” but it is sim-
ply an adjectival form of the verb “require.” In this employ-
ment context, it seems obvious to me that the word is being
used to describe the “duties” that the employer “requires” of
the employee. The more appropriate dictionary definition of
“require” in this case, therefore, is “to impose a compulsion
or command upon (as a person) to do something : demand
of (one) that something be done or some action taken :
enjoin, command, or authoritatively insist (that someone
do something).” Webster’s Third New Int’l Dictionary 1929
(unabridged ed 2002). That definition focuses on what
“duties” a person or entity (here the employer) “demand[s,]”
“command[s,]” or “authoritatively insist[s]” that the “per-
son” do. See id. The Court of Appeals reached the same
conclusion, stating that “under its plain meaning, the term
‘required duties’ refers to conduct or tasks the employer
could compel or command an employee to perform.” Miller v.
City of Portland, 255 Or App 771, 787, 298 P3d 640 (2013).
The definition of “require” that I propose is not ren-
dered superfluous or redundant, contrary to the majority’s
view, simply because the definition of “duties” also contains
the concept of being obligated. See 356 Or at 413. “Duty”
428 Miller v. City of Portland
means “obligatory tasks, conduct, service, or functions
enjoined by order or usage according to rank, occupation, or
profession.” Webster’s at 705. The word “required,” a form of
a verb, emphasizes the role of the person or entity doing the
requiring and certainly implies the authority of the entity
to determine which of the “duties” are “required.” There is a
set of all the “duties” that could be commanded of someone
in a particular position, but the “required duties” are the
subset of those duties that the employer reasonably directs
the particular employee to perform.
The majority defines the term “required duties” to
mean the “core” duties of the job classification, but the word
“core” appears nowhere in the text of any city charter provi-
sion or rule and appears to have been devised by the major-
ity. The majority seeks to buttress its definition by suggest-
ing that, if “required duties” meant only the duties within
the job classification that the city directs an employee to
perform, rather than “core” duties, the city could unfairly
manipulate the duties that it requires of employees so as to
deny them promised disability benefits. See 356 Or at 414
(arguing that the city could change “a member’s status * * *
from fit to disabled and back again at any time, depending
on which subset of duties in the pertinent job classification
that the city decided to ‘require’ on a particular day”). That
concern is misplaced, as least as it relates to the issues
before this court.
First, nothing in the text indicates that all employ-
ees in a particular job classification must have the same
“required duties” or that each employee must have the
same “required duties” as long as they are in the same job
classification—and the record demonstrates that they do
not. We have been directed to no charter provision, admin-
istrative rule, or other source of law that affirmatively lim-
its the city’s authority, as an employer, to direct employees
to perform some, but not other, tasks within the employee’s
job classification or position description. And, given the flex-
ibility needed to administer a complex organization such as
the Bureau of Fire and respond to evolving responsibilities
and best practices, one would hardly expect such a rule. The
required duties change based on changes in the Bureau of
Fire’s needs, technology, individual fire fighters’ strengths
Cite as 356 Or 402 (2014) 429
and weaknesses, and so on. Moreover, as the majority notes,
the record shows that the city in fact does direct different fire
fighters to perform a wide variety of different tasks, depend-
ing on their work assignment, such as working on a truck
company, an engine company, or a fireboat company. Id. at
406. Nothing suggests that the management prerogative
that permits such assignments does not also permit the city
to assign fire fighters to perform some tasks within their job
classification, but not others, as it deems appropriate. If the
city can assign different tasks in that way to members who
are not disabled, I can see no reason why members who are
able to perform some needed tasks, but not others, cannot be
directed to perform those tasks they can perform.
Second, to the extent that the city is alleged to have
manipulated its administration of the disability plan and
acted in bad faith in implementing the “return to work” pol-
icy, that issue is not before us. Plaintiffs’ complaint alleged
that the city violated the implied covenant of good faith and
fair dealing. The trial court concluded that there were dis-
puted issues of material fact regarding that claim, rejecting
the city’s motion for summary judgment on that ground, and
the city did not appeal that ruling. The Court of Appeals
remanded for further proceedings on that issue and the city
did not seek review. See Miller, 255 Or App at 790. Those
claims will thus proceed before the trial court.
Third, plaintiffs’ concern that, under the city’s inter-
pretation of “required duties,” it could eliminate the disabil-
ity program entirely is not well taken. Implicit in the dis-
ability provisions of the city charter is the concept that the
“required duties” at the time of a service-connected injury or
illness are the duties that the member had been assigned at
that time, and an employee who cannot perform those duties
is entitled to disability benefits. But any employer with an
employee who can perform some, but not all, of the duties
the employee was previously required to do ordinarily may
adjust work assignments and duties in order to keep the indi-
vidual employed.2 Nothing in the charter suggests that the
2
Indeed, this appears to be the practice in administering the Fire and
Police Disability Plan. An administrative rule provides that “[a] Member who
is unable to perform his or her usual job but is able to do other work to which
the Member may be assigned in his or her respective Bureau, is ineligible for
430 Miller v. City of Portland
duties of a fire fighter are so set in stone that they cannot be
flexible and adapt to changing circumstances. Particularly
when we are interpreting the “city’s constitution,” which can
be changed only by a vote of the people, we should—absent
clear evidence of contrary voter intent—avoid narrowly con-
struing words of common usage in a way that frustrates the
city’s reasonable efforts to deliver public services effectively.
The common sense definition of “required duties”
that I propose is supported by the context in which that term
is found. See State v. Fries, 344 Or 541, 548, 185 P3d 453
(2008) (where multiple definitions might provide the plain
meaning this court uses context to determine which was the
one intended by the drafters). The city charter itself declares
that “[r]estoring injured workers physically and economi-
cally to a self-sufficient status in an expeditious manner and
to the greatest extent practicable is an important aspect of
any disability system.” Portland City Charter § 5-202(h)(1).
The majority’s interpretation of “required duties” makes it
more difficult for employees to be restored “physically and
economically to a self-sufficient status” by working a light
duty job they are medically cleared to do. Under the major-
ity’s interpretation, members are unable to keep their jobs
at all if they cannot perform what the majority deems to be
the “core” duties of the work, causing a loss of income and
economic self-sufficiency. Respectfully, determining what
duties within the fire fighter job classification are “required”
for an employee to perform the work the Bureau of Fire
believes to be important is for the city, not for this court.
In summary, the voters most likely intended a defi-
nition of “required duties” that furthers the various goals
disability benefits if such a job is available to the Member. For example, a police
officer whose injury prevents him or her from performing police duties in the
field will be ineligible for disability benefits if the officer is capable of performing
more sedentary duties and such sedentary position is available to the officer.”
FPDR Administrative Rules III.A (1991). That rule was adopted two years after
the Portland City Charter provision at issue, 356 Or at 413, 413 n 6, and I do not
suggest that voters would have understood the text with this particular adminis-
trative rule in mind. Rather, the administrative rule illustrates the general and
common sense purpose of disability plans, which the voters likely would have had
in mind just two years earlier. The majority too quickly dismisses this adminis-
trative rule as irrelevant. See Halperin v. Pitts, 352 Or 482, 490-91, 287 P3d 1069
(2012) (collecting cases to show that mere fact that statutes were later-enacted
did “not mean that they [were] irrelevant”).
Cite as 356 Or 402 (2014) 431
of the disability plan for both the city and the employees—
assisting employees with injuries in regaining their phys-
ical and economic self-sufficiency, ensuring city services
provided by valued workers, and effectively using the city’s
human and financial resources. The definition proposed
above is not only the common sense and plain meaning of
the words of the city charter, but also one that furthers
those goals. It allows the city to retain trained employees
rather than overburdening other fire fighters or expending
public funds to hire and train new employees to perform
the tasks assigned to those in the position of plaintiffs. It
benefits the employees, because they remain employed with-
out the reduction in salary that disability payments entail.
See Portland City Charter § 5-306(e) (specifying amount of
disability benefits to be 75 percent of their previous base
pay in effect at disability during the first year from the date
of disability, and 50 percent after the member is medically
stationary or after four years). Finally, it is unlikely that
the voters intended the city to incur the expense of paying
disability benefits until retirement age for individuals who
are trained and able to perform work the city needs to have
performed, but chose instead to end their employment with
the city.
For the foregoing reasons, I respectfully dissent.
Landau, J., joins in this dissenting opinion.