McLean v. Buck Medical Services, Inc.

DURHAM, J.,

concurring.

The majority concludes that the legislature intended to authorize parties to a public contract to avoid responsibility for compliance with Oregon’s wage and hour laws by obtaining, from the Multnomah County and Clackamas County contract review boards, designations that the ambulance service contracts in question are “personal service contracts” under ORS 279.051. That is a correct answer to the issue that plaintiff poses. I write separately to make it clear that the majority opinion, in addressing the legislature’s intended scope of the delegated authority of local contract review boards, does not decide any issue regarding the validity of that delegation.

Statutory competitive bidding requirements regarding public contracts generally foster the public’s interest in obtaining goods and services from qualified suppliers at the lowest available cost. The legislature allows local governments to subordinate that public interest by contracting pursuant to an exemption from competitive bidding requirements (for example, when a local government entity pays extraordinary lawyer fees to protect it against a risk of liability). One exemption, discussed below, concerns contracts for “personal services.”

ORS 279.316(l)(a) and ORS 279.334, which the majority sets out in its footnote 3 of its opinion, state certain wage and hour requirements that pertain to public contracts. However, each statute expressly provides that it is inapplicable to “contracts for personal services as defined in ORS 279.051 * * ORS 279.316(l)(a); ORS 279.334 (6).

*44As the majority correctly observes, ORS 279.051 fails to define “contracts for personal services,” thus contradicting the terms of ORS 279.316(l)(a) and ORS 279.334. Instead, ORS 279.051(2) expressly authorizes a local contract review board to “designate certain service contracts or classes of service contracts as personal service contracts.” The majority concludes that the legislature intended that that delegation would authorize the local contract review boards in Multnomah and Clackamas Counties to designate the particular ambulance service contracts involved here as “personal service contracts.” That conclusion about the legislature’s intention involves no inquiry into the question whether the delegation satisfies legal requirements for a lawful delegation.

In Warren v. Marion County, 222 Or 307, 313, 353 P2d 257 (1960), this court addressed a claim by a building contractor that a building code ordinance in Marion County and the statutory enabling act that authorized the ordinance were unconstitutional and void. The plaintiff argued, among other things, that the statute purported to delegate authority to promulgate building regulations, but lacked any definite standards for the regulations. According to the plaintiff, the enabling statute attempted to delegate legislative power in violation of the legislature’s constitutional lawmaking authority set out in the Oregon Constitution, Article IV, section 1. 222 Or at 311.

The court agreed that the legislature had stated the statutory standards for the regulation of building construction in general terms, but concluded that the generality of the standards that accompanied the legislative delegation did not create a constitutional defect. The court stated:

“There is no constitutional requirement that all delegation of legislative power must be accompanied by a statement of standards circumscribing its exercise. It is true that a contrary view has frequently been expressed in the adjudicated cases, particularly the earlier ones, but the position taken in such cases is not defensible. It is now apparent that the requirement of expressed standards has, in most instances, been little more than a judicial fetish for legislative language, the recitation of which provides no additional safeguards to persons affected by the exercise of the *45delegated authority. 1 Davis, Administrative Law Treatise, §§ 2.04,2.05; Forkosch, Administrative Law, § 84. Thus, we have learned that it is of little or no significance in the administration of a delegated power that the statute which generated it stated the permissible limits of its exercise in terms of such abstractions as ‘public convenience, interest or necessity’ or ‘unjust or unreasonable,’ or ‘for the public health, safety, and morals’ and similar phrases accepted as satisfying the standards requirement. 1 Davis, Administrative Law Treatise, §§ 2.03-2.05; Forkosch, Administrative Law, §§ 83, 84.
“As pointed out in Davis on Administrative Law, the important consideration is not whether the statute delegating the power expresses standards, but whether the procedure established for the exercise of the power furnishes adequate safeguards to those who are affected by the administrative action. 1 Davis, Administrative Law Treatise, §§ 2.10, 2.15, 7.20. See also: Peninsula Corporation v. United States, 60 F Supp 174 (D.C. Cir 1945); Heath v. Mayor and City Council of Baltimore, 187 Md 296, 49 A2d 799 (1946).
“In testing the statute for the adequacy of such safeguards it is important to consider the character of administrative action which the statute authorizes. The statute here authorizes the establishment of building codes, including the adoption by reference of published codes such as the Uniform Building Code which the defendant adopted in modified form. Such codes are in themselves a statement of specific standards for the construction of buildings. The administrative official charged with the duty of enforcing a building code ordinance is called upon to decide whether the specifications set out in the code have been met in the construction of a particular building. His action can, therefore, be tested against the specific description of adequate construction set out in the building code. The statute then requires that the county set up appeal procedures so that persons dissatisfied with the building inspector’s action in ruling upon the suitability of materials or construction may have that action reviewed by a separate administrative body. What further safeguards are needed to protect persons subjected to regulation under such a code?
“We believe that the appeals procedure required by ORS 215.108(2) provided a sufficient safeguard to persons wishing to contest administrative action in the enforcement of *46the code. Plaintiff has not mentioned the standards which he thinks would satisfy the requirement for an adequate statute. We doubt that any standards which he could suggest for inclusion in the statute would make any clearer the scope of the delegated power or contribute materially to the protection of a citizen against unwarranted administrative action. We hold that ORS 215.108 constitutes a valid delegation of legislative power.”

222 Or at 313-15 (emphasis in original).

Under Warren, the key to determining whether a statute — here, ORS 279.051(2) — establishes a permissible delegation of legislative authority is to examine whether the legislative scheme furnishes adequate safeguards to protect those who are affected by the resulting administrative action, such as plaintiff. When examined in that light, ORS 279.051(2) appears problematic.

The lack of any statutory definition or standard by which the public or a court might identify a “personal service contract” is no small oversight. Because no statute supplies any limitation to that term, the legislature’s scheme appears to approve the designation of any public contract as a personal service contract. No statute requires that a contract designated under ORS 279.051(2) actually be a personal service contract.

ORS 279.051(1) requires pertinent public agencies to “create procedures for the screening and selection of persons to perform personal services.” Multnomah County and Clackamas County may or may not have promulgated the procedures that that statute requires. In examining those or other procedures, if they exist, under Warren, the question is not simply whether locally adopted procedures guide the public entity in selecting those persons who shall perform personal services. Rather, the question is whether the pertinent statutes furnish adequate safeguards to adversely affected persons, such as plaintiff, to protect against “unwarranted administrative action.” 222 Or at 315.

Warren decided that the enabling statute considered in that case did incorporate adequate safeguards and, therefore, that the statute was a ‘Valid delegation of legislative power.” Id. The majority does' not address or decide that *47question in regard to the legislative delegation involved here. In view of the scope of the legal issues that this case raises, I agree with that approach.

I concur.

Riggs, J., joins in this concurrence.