dissenting.
When the Portland Public School District (district) faced a severe budget shortfall in early 2002, it proposed to reduce expenses by, among other things, contracting with a private provider to obtain custodial services that were then being performed by district employees who were members of Service Employees International Union Local 140.1 Whether that decision was wise from a financial, operational, or safety perspective is not, of course, an issue for this court to decide. The issue before us — the only issue — is whether Oregon law permits the district to obtain custodial services through a contract with a private service provider, rather than from individuals whom it hires as district employees. The Employment Relations Board concluded that Oregon law permitted the district’s action, and the Court of Appeals agreed.2
A majority of this court, however, now holds that the Custodians’ Civil Service Law (CCSL), ORS 242.310 to *427242.640, bars the district from obtaining custodial services other than from district employees who are subject to the CCSL. Because the majority’s conclusion lacks support in the specific wording of the CCSL and rests instead on inferences that stray from the legislature’s stated intent in enacting that law, I respectfully dissent.
The CCSL was enacted in 1937 and applies only to the district. It created “a civil service board with jurisdiction over the appointment, employment, classification and discharge of custodians and assistant custodians in the employ of [the district].” ORS 242.330(1); see also Or Laws 1937, ch 355, § 2. As detailed in the majority opinion (and in the opinion of the Court of Appeals), the CCSL established a merit-based civil service scheme for the district’s custodial employees, requiring competitive examinations for appointment and charging the board with responsibility for classifying the work and compensation of custodians and assistant custodians. Although the legislature has amended the CCSL since 1937, its essential features remain the same. The CCSL also defines “custodian” and “assistant custodian” as those terms are to be used in the statute:
“(1) ‘Assistant custodian’ means any employee who works under the supervision of a custodian except those who:
“(a) Work less than eight hours per day; or
“(b) Work less than 12 months per year; or
“(c) Receive an hourly rate of pay.
(($; ‡ iji
“(3) ‘Custodian’ means an employee of the school district who has supervision of property, keeping it in sanitary condition and tending to the cleaning and operation of heating plants and other necessary work by way of care and labor to keep the physical plants of the school board in maintenance and operation.”
ORS 242.320 (emphasis added). The CCSL imposes specific obligations on the civil service board, requiring it to make reports, hold competitive public examinations for custodial *428positions, and prepare and keep a register. ORS 242.390 - 242.570. The law also provides that “[n]o appointment or promotion to any position shall be made except as provided in the [CCSL].” ORS 242.520(1).
Based on those and other provisions of the CCSL,3 the district argues that the CCSL applies only to district “employees” who perform custodial services and that persons working for a private contractor are not subject to the CCSL because they are not district employees. The district further asserts that nothing in the CCSL requires that custodial services for the Portland public schools be performed by district “employees.” Local 140 counters that the entire structure of the CCSL and the board that it creates assumes that custodial services will in fact be performed by district employees whose employment will be regulated by the CCSL.
Although Local 140 may be correct that the 1937 legislature “assumed” that most custodial services for the district would be performed by persons directly employed by the district, such an assumption merely reflected the circumstances of the time, including the district’s limited authority to obtain services by contracting with private providers and the apparent rarity of that practice. However, nothing in the CCSL or in any legislative history to which the parties direct us suggests that the legislature intended to require the district to hire every person who performs custodial services in the Portland public schools as an employee.4 On the contrary, the statute, as quoted above, gives the civil service board “jurisdiction” over “custodians and assistant custodians in the employ’ of the school district, and then defines “custodians” and “assistant custodians” as “employees” of the district *429who perform the duties described in ORS 242.320(1) and (3). Nothing in the text of the statute requires that every person who performs those duties must be hired by the district as an employee; neither does it bring within the compass of the CCSL persons who are not district “employees.”
Even if Local 140 is correct in asserting that the legislature “assumed” or “believed” that all persons performing custodial services would be district employees, the corollary proposition that is critical to their position in this case — that the legislature also assumed that those employees would be subject to the CCSL — does not follow. Local 140 argues that ORS 242.520(1), by prohibiting any “appointment or promotion * * * except as provided in the [CCSL],” demonstrates that the legislature intended to bring within the scope of the CCSL not only every district employee who performs custodial services, but also persons not employed by the district who perform those services. That position is not supported by the CCSL.
The original CCSL excluded from its coverage “[a]ny assistant custodian receiving less than $60 per month as a wage * * *.” Or Laws 1937, ch 355, § 2, and the current CCSL excludes, by excluding from the definition of “assistant custodian,” any employee who works less than eight hours per day or less than 12 months per year or who receives an hourly rate of pay. ORS 242.320(1). Thus, nothing in the CCSL itself would prohibit the district from obtaining all of its custodial services by hiring part-time employees who would not be subject to the CCSL.
I also note in passing that the record in this case demonstrates that some custodial services in the district’s schools are performed by persons who are not district employees, while others are performed by district employees who are not subject to the CCSL. The record identifies six contracts signed before the present dispute arose between the district and private providers of custodial services. The record also indicates that the district does, in fact, employ part-time assistant custodians and student custodians who do not come within the statutory definitions of “custodian” or “assistant custodian” quoted above and thus are not subject to the CCSL, even though they perform custodial services. *430Finally, the parties have stipulated that approximately 75 district employees represented by an association of skilled trades unions perform work that involves keeping district property in a sanitary condition, cleaning and operating heating equipment, and otherwise maintaining district facilities. If Local 140’s interpretation of the CCSL were correct, the district’s existing practices — to which Local 140 apparently has not objected — of having some custodial services performed by district employees who are not subject to the CCSL and other custodial services performed by persons who are not district employees, would be unlawful.
It is striking that the majority takes a different approach from Local 140. It agrees with Local 140 that the CCSL applies to any worker who performs custodial services for the district, whether that worker is a district employee or an employee of a private contractor. The majority reaches that conclusion, however, on a basis that Local 140 did not argue, viz., that, by using the word “employee” in ORS 242.320’s definitions of “custodian” and “assistant custodian,” the legislature did not intend to “limit” the persons to whom the CCSL would apply, but rather “to define the legal status of custodial workers who the civil service board hired to fill vacant district positions.” 339 Or at 422 (emphasis in original). That is, rather than reading the statutory definition of custodian — that a custodian “means an employee of the school district” who has certain defined responsibilities, ORS 242.320(3) — in the ordinary sense to include only a person who is “an employee of the school district,” the majority concludes that any person who has those defined responsibilities is a custodian, and, therefore, must have (or must be given) the “legal status” of an “employee.” In my view, there is a reason that Local 140 did not advance that interpretation: That interpretation is unsupportable.
As noted, the 1937 legislation gave the civil service board “jurisdiction over the appointment, employment, classification and discharge of custodians,” and, in the next sentence of the same section, provided that “custodians hereby are defined as employees of [the district] * * Or Laws 1937, ch 355, § 2 (emphasis added).5 The only plausible way to read *431that section is as an expression of the legislature’s intent that the word “employee” describe those persons to whom the statute applies, rather than, as the majority would have it, to prescribe that the district hire as an employee any person who performs custodial services. See Walter v. Scherzinger, 193 Or App 355, 368, 89 P3d 1265 (2004) (legislature’s use of word employee “was descriptive, based on contemporary reality, and not prescriptive”).
The statute’s words will not support the majority’s conclusion that by defining a “custodian” for purposes of the CCSL as an “employee” who performs certain functions, the legislature intended to impose an affirmative obligation on the district. The majority states that “when the 1937 legislature defined custodians and assistant custodians as ‘employees,’ it intended to define the legal status of those workers.” 339 Or at 426. The majority’s approach, however, elevates a statutory definition — which ordinarily tells us the meaning of a particular word as it is used in a statute — into an affirmative requirement (that the district hire all custodians as employees) that appears nowhere in the statute. This court has rejected such an approach to statutory interpretation, stating that “[o]rdinarily the function of a definition section is not to impose duties but to specify the meaning of the defined term whenever it appears elsewhere in the statute.” Jackson County v. Bear Creek Authority, 293 Or 121, 126, 645 P2d 121 (1982); see also Amer. F. of L. et al. v. Bain et al., 165 Or 183, 205, 106 P2d 544 (1940) (statutory definition is device for shortening statute by “describing” certain class of cases).
For the reasons described above, the CCSL does not require the district to hire its own employees to provide custodial services, and I would hold that the district’s proposal to contract out those services does not violate the Public Employee Collective Bargaining Act.
I respectfully dissent.
Carson, C. J., and Gillette, J., join in this dissent.The district estimated that it would save $4.5 to $5 million annually by contracting for custodial services and that doing so would have a less negative impact on programs for students than other reductions that would be required if that contracting did not occur. The district eventually proposed a total of $40 million in budget cuts for the 2002-2003 fiscal year.
Additionally, three different circuit court judges who considered the issue in different cases agreed that Oregon law permitted the district’s action, as did the federal district court in yet another case involving the same issue.
The CCSL contains a variety of additional provisions that the parties use to bolster their respective positions, most of which are discussed in the majority opinion, 339 Or at 415-16, 420-23 and in the Court of Appeals decision, Walter v. Scherzinger, 193 Or App 355, 360-69, 89 P3d 1265 (2004). The parts of the statute quoted in the text are the most central to the parties’ dispute and provide a sufficient basis for delineating their opposing positions.
In this court, Local 140 shifts ground slightly, arguing that the legislature not only “assumed” that all custodial services would be performed by district employees, but that the legislature “believed” that to be the case. In interpreting the CCSL, however, our focus must be on the legislature’s intent as it is expressed in the statute itself, not on unwritten assumptions or beliefs that individual members of the legislature may have had.
Those sentences now appear, with changes not relevant to this discussion, at ORS 242.330(1) and ORS 242.320(3), respectively.