John Miller v. City of Portland

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 benefit

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 disability

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 plaintiffs

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 judgment

of the circuit court and remand to that court for further

proceedings.

FACTS

As noted, the circuit court granted summary judgment

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 benefits

for (among other things) member employees who are

injured on the job. The test for benefits is whether the member

employee is "unable to perform the Member's required

duties.” Portland City Charter § 5-306(b). Disability benefits

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 provisions

as they exist today. We do so because the differences between the various

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 disabled.

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 precisely

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 protection

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 supervised

drills, training in fire fighting skills and rescue techniques,

and participation in hydrant and building inspection

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 administrative

and personal reasons.”

The classification document goes on to list examples of work

that a Fire Fighter may be required to perform in different

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 functioning

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 pursuits.

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” policy

provided that the city would identify "restricted duty”

assignments that would be

"suitable for a member whose restrictions are of a permanent

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 program.

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 determined

that plaintiffs no longer qualified for disability benefits

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 formal

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 termination

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 purposes

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 attorney

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 contract.

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 provisions

of the city charter did not form a contract for disability

benefits with plaintiffs, and that, pursuant to the charter,

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, however,

the court made alternative rulings regarding the city's

other arguments. The court concluded that there was evidence

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 concluding

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 administrative

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 summary

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 representations

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 summary

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 petition

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 disabled.

It provides:

"An Active Member shall be eligible for the serviceconnected

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 employment

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 disability

or in vocational rehabilitation or does not pursue other

employment.”). The charter then provides a schedule of benefits

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 disability

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 classification

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 classification

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 commanded

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 classification;

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 profession

.”

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 fundamental

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 disadvantage

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 purportedly

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 disability

benefits if such a job is available to the Member.”). At oral argument, however,

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 promulgated

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 matter

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 status

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 particular

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 particular

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 provisions

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 incidental

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 classification

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 necessary

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 performing

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 disabled

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 statute,

"[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 version

of the charter, the provisions of the plan made entitlement

to benefits contingent on a member being unable to

perform "required duties.” Section 5-115 of the 1948 charter

stated:

"BENEFITS UPON SERVICE CONNECTED DISABILITY.

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 member

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 connected

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 payments

only if the member "recovers,” implying medical recuperation

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 retirement

or disability,” implying at least some degree of continuity

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 interpretation

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 conclude

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 constitutional

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 benefit

changes required by law. Restricts adjustments of retirement and survivor

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 essential

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' argument

that the "required duties” of a job classification or position

become fixed when a member employee becomes disabled.

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 plaintiffs

are able to perform the core functions of that job classification.

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 followed

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” specifically

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” assignments

are for member employees whose disabilities prevent them from "performing

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 benefits

* * *, 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 suspend,

reduce or terminate benefits. A summary of the evidence

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 administrative

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 intervention

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 exhaustion

requirement from statutory exhaustion requirement);

Mullenaux, 293 Or at 539 (noting that, in tax cases, particular

statute "makes explicit the general rule” that a party

420 Miller v. City of Portland

can obtain judicial relief only if party has exhausted administrative

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 exhaustion

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 rigidly

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 termination

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 director

"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 administrative

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 remedies

"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 "considerations

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 matter

of law, the city had not breached its contract with plaintiffs.

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 disabled

employee to again become fit for work. And finally, our

conclusion of course does not limit the city's ability to determine,

as a factual matter, that a former employee is no longer

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 commanded

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 particular

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 interpretation

that the city and the dissent advance conflates immediate

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 particular

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 classification,

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 reason

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 determine

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 discussed,

is that a member could too easily be considered disabled

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 prerogatives

in managing its disability system. Respectfully, we

do not share that view. As explained above, our interpretation

is not narrow or rigid in the sense that the dissent posits;

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 interpretation

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 renders

the fire fighter unable to perform all the duties "necessary

to qualify as a Fire Fighter” because of a serviceconnected

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 relevant

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 "disability

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 employees

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 definition

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 compelled

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 essential

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 conclusion,

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 perform

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 eligible

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 simply

an adjectival form of the verb "require.” In this employment

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 "person”

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 rendered

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 provision

or rule and appears to have been devised by the majority.

The majority seeks to buttress its definition by suggesting

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 employees

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, administrative

rule, or other source of law that affirmatively limits

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 flexibility

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, depending

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” policy,

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 disputed

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 interpretation

of "required duties,” it could eliminate the disability

program entirely is not well taken. Implicit in the disability

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 individual

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 construing

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 economically

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 majority'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 definition

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 administrative

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 administrative

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 physical

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 without

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.

Affirmed