
Filed:  April 25, 2002
IN THE SUPREME COURT OF THE STATE OF OREGON
LAUREN POST,
Petitioner on Review,
	v.
SALEM-KEIZER SCHOOL DISTRICT
and FAIR DISMISSAL APPEALS BOARD,
Respondents on Review.
(FDA 96-3; CA A98436; SC S46780)
	On review from the Court of Appeals.*
	Argued and submitted November 2, 2000.
	Monica A. Smith, of Smith, Gamson, Diamond & Olney,
Portland, argued the cause and filed the brief for petitioner on
review.
	Nancy Hungerford, of The Hungerford Law Firm, West Linn,
argued the cause for respondent on review Salem-Keizer School
District.  With her on the briefs was Andrea Hungerford.
	No appearance on behalf of respondent on review Fair
Dismissal Appeals Board.
	Before Carson, Chief Justice, and Gillette, Durham, Leeson,
and Riggs, Justices.**
	RIGGS, J.
	The decision of the Court of Appeals is reversed.  The order
of the Fair Dismissal Appeals Board is reversed, and the case is
remanded to the Fair Dismissal Appeals Board for further
proceedings.
	*Appeal from an order of the Fair Dismissal Appeals Board. 162 Or App 15, 987 P2d 530 (1999).
	**Van Hoomissen, J., retired December 31, 2000, and did not
participate in the decision of this case; Kulongoski, J.,
resigned June 14, 2001, and did not participate in the decision
of this case; De Muniz and Balmer, JJ., did not participate in
the consideration or decision of this case.
	RIGGS, J.
	The issue presented in this proceeding is whether the
Court of Appeals correctly affirmed an order of a three-member
panel of the Fair Dismissal Appeals Board (FDAB) dismissing a
teacher's appeal as untimely.  We are called upon to decide
whether, as FDAB and the Court of Appeals concluded, actual
notice is sufficient to trigger the running of the period in
which a teacher may appeal to FDAB.  We conclude that FDAB
improperly dismissed the appeal.  We reverse the Court of
Appeals' decision and the order of FDAB, and remand this case to
FDAB for further proceedings.
	The Salem-Keizer School District (district) employed
petitioner as a permanent part-time teacher. (1)  She accepted a
year-long contract as a "temporary full-time" teacher for the
1995-1996 school year, but retained her permanent part-time
status.  On March 18, 1996, petitioner was notified, by a letter
from the district superintendent, that her contract as a
temporary full-time teacher was not renewed.  The letter stated
that the district school board elected not to renew her temporary
full-time contract at its March 12, 1996, meeting.  The letter
also informed petitioner that she retained her status as a
permanent part-time teacher.
On August 29, 1996, petitioner sought review of
the district's decision by FDAB.  Petitioner alleged that she was
a permanent full-time teacher, as defined under ORS 342.845(2)
(1995), (2) that the non-renewal of her temporary full-time contract
amounted to a dismissal, and that she was entitled to the form of
notice required by ORS 342.895(2) (1995). (3)
ORS 342.895(2) (1995) set out the method for notifying
a permanent teacher that the district superintendent intended to
recommend his or her dismissal to the school board. (4)  Under that
statute, at least 20 days before recommending dismissal, the
district superintendent was required to provide the teacher with
the factual and statutory grounds for the recommendation, as well
as copies of the statutes specifying the teacher's right to
appeal.  ORS 342.895(2) (1995).  If the school board followed the
superintendent's recommendation and dismissed the teacher, then
notice of that action was sent to the teacher.  ORS 342.895(3)
(1995).  Once the dismissed teacher received notice of the
board's decision, ORS 342.905(1) (1995) provided that the teacher
had 10 days in which to appeal. (5)
		FDAB concluded that petitioner's appeal posed four
questions:

	"In light of ORS 342.845(2) does FDAB have
authority to review reassignment of a permanent
part-time teacher to part-time work after that
teacher had been previously given a temporary
full-time assignment?
	"Is such a reduction in assignment a 'dismissal'
for purposes of FDAB review?
	"What grounds are necessary or permitted for a
district to reduce the assignment of a permanent
part-time teacher who had been assigned temporary
full-time work?
	"What triggers the 10-day appeal period to FDAB for
a permanent part-time teacher, who had been
assigned temporary full-time work, when the
teacher is involuntarily reduced to part-time work
and seeks FDAB review?"

FDAB resolved only the fourth question, determining that
petitioner had received "actual notice" sufficient to trigger the
10-day deadline for appeals under ORS 342.905(1) (1995).  Because 
more than six months had passed since petitioner received actual
notice via the March 18, 1996, letter, FDAB dismissed her appeal.
		On review, an en banc, divided Court of Appeals
affirmed that order.  Post v. Salem-Keizer School Dist., 162 Or
App 15, 987 P2d 530 (1999).  The Court of Appeals' majority first
concluded that petitioner was a "permanent teacher."  Id. at 22. 
Then, after examining prior FDAB orders, the majority determined
that the receipt of "actual notice" was sufficient to trigger the
10-day limitation under ORS 342.905(1) (1995).  Id. at 26.  The
dissent maintained that the procedures that the school district
must have followed under ORS 342.895(2) (1995) provided a teacher
with more than mere termination notice.  Post, 162 Or App 27
(Wollheim, J., dissenting).  Thus, the dissent argued that, if
the district must have provided only "actual notice," then ORS
342.895(2) (1995) is rendered a nullity.  Id.
		Petitioner contended before the FDAB and the Court of
Appeals that she was a permanent full-time teacher under ORS
342.845(2) (1995).  She maintained that the non-renewal of her
contract amounted to a dismissal and that she was therefore
entitled to notice under ORS 342.895(2) (1995).  The FDAB did not
determine whether petitioner was a permanent full-time teacher,
because it concluded that the "actual notice" that she received
was sufficient to trigger the 10-day limitation on appeals under
ORS 342.905(1) (1995) regardless of her status.
		On review, we conclude that FDAB, and subsequently, the
Court of Appeals' majority erroneously interpreted that statute. 
The 10-day limit set out for FDAB appeals in ORS 342.905(1)
(1995) was, in fact, triggered only by formal notice of the
school board's decision sent under ORS 342.895(3) (1995).  The
more complex notice required under ORS 342.895(2) (1995) was an
additional prerequisite to school board action.  That is so
because, under ORS 342.895(1) (1995), the authority of the
district school board to dismiss a permanent teacher was "subject
to" compliance by the district school board and superintendent
with the statutory dismissal procedures, including the
requirements for notification of dismissal set out in ORS
342.895(2) and (3) (1995).  See ORS 342.895(1) ("Authority to
dismiss a permanent teacher is vested in the district school
board subject to the provisions of the fair dismissal procedures
of ORS 342.805 to 342.934 * * *.") (Emphasis added.)
		The text of the pertinent statutes is clear.  ORS
342.895(3) (1995) provided that:

	"[i]f, after the 20-day notice required by subsection
(2) of this section, the district school board takes
action to approve the recommendation for dismissal from
the superintendent, the dismissal takes effect on or
after the date of the district school board's action,
as specified by the board."  

ORS 342.895(3) (1995) (emphasis added).  Hence, when the notice
requirements of ORS 342.895(2) (1995) were not satisfied, the
district school board could not take action to dismiss the
teacher.  In turn, ORS 342.905(1) (1995) could be triggered only
"after receipt of notice of the district school board's
decision."  Thus, when a teacher was not provided with proper
notice under ORS 342.895(2) (1995), the board could not act to
dismiss that teacher under ORS 342.895(3) (1995), and, therefore,
the 10-day limitation for appeals under ORS 342.905(1) (1995)
would not begin to run.
It follows that, when presented with an appeal in which
a dismissed teacher claims that he or she was a permanent full-time teacher who did not received the notice required under ORS
342.895(2) and (3) (1995), FDAB could not dismiss the appeal
solely because the 10-day limitation set out in ORS 342.905(1)
(1995) had expired after delivery of the non-complying notice. 
The FDAB erred in doing so, and the Court of Appeals erred in
affirming that action. (6)  The matter must be remanded to FDAB for
further proceedings.  We leave it to FDAB, on remand, to resolve
the remaining issues, possibly beginning with the potentially
dispositive question whether petitioner was "dismissed" from her
position as a "permanent full-time teacher" and, thus, was
entitled to invoke the statutory procedures and protections that
are owed to a person with that status. (7)
		The decision of the Court of Appeals is reversed.  The
order of the Fair Dismissal Appeals Board is reversed, and the
case is remanded to the Fair Dismissal Appeals Board for further
proceedings.


1. 	The legislature changed the term "permanent teacher" to
"contract teacher" in 1997.  Or Laws 1997, ch 864, § 12. 
Moreover, the legislature redrafted much of the Fair Dismissal
Law, now the Accountability for Schools for the 21st Century Law,
in 1997.  Or Laws 1997, ch 864.  Those statutory changes,
however, do not affect our analysis in this case. 

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2. 	ORS 342.845(2) (1995) provided in part:

		"A permanent part-time teacher who accepts a full-time
assignment shall be considered a permanent teacher for
purposes of the assignment."
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3. 	ORS 342.895(2) (1995) provided:

		"At least 20 days before recommending to a board
the dismissal of the permanent teacher, the district
superintendent shall give written notice to the
permanent teacher by certified mail or delivered in
person of the intention to make a recommendation to
dismiss the teacher.  The notice shall set forth the
statutory grounds upon which the superintendent
believes such dismissal is justified, and shall contain
a plain and concise statement of the facts relied on to
support the statutory grounds for dismissal.  If the
statutory grounds specified are those specified in ORS
342.865 (1)(a), (c), (d), (g) or (h), then evidence
shall be limited to those allegations supported by
statements in the personnel file of the teacher on the
date of the notice to recommend dismissal, maintained
as required in ORS 342.850.  Notice shall also be sent
to the district school board and to the Fair Dismissal
Appeals Board.  A copy of ORS 342.805 to 342.934 shall
also be sent to the permanent teacher."

The legislature amended ORS 342.895 in 1997, and notice
requirements virtually identical to those set out above now are
set out in ORS 342.895(3)(a) (2001).	

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4. 	Under ORS 342.845(2) (1995) "[t]he assignment of a
permanent part-time teacher is not subject to the procedures
specified in ORS 342.805 to 342.930."

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5. 	ORS 342.905(1) (1995) provides:

		"If the district school board dismisses the
teacher, the teacher or the teacher's representative
may appeal that decision to the Fair Dismissal Appeals
Board * * * by depositing by certified mail addressed
to the Superintendent of Public Instruction * * *
within 10 days * * * after receipt of notice of the
district school board's decision, notice of appeal * * *."
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6. 	The court's suggestion in Zollinger v. Warner, 286 Or
19, 593 P2d 1107 (1979), that the FDAB should be given an
opportunity to consider whether a defective notice of demotion
might be efficacious was unaccompanied by an examination of any
statutory wording regarding that matter and, in any event, was
dictum expressed in the context of markedly distinguishable
facts.

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7. 	As noted, the Court of Appeals purported to answer that
question.  Post, 162 Or App at 22.  However, that determination
was premature, in view of our disposition of the notice question,
and we express no opinion on the issue.  On remand, the FDAB is
entitled in the first instance to draw its own conclusion on the
issue, giving the analysis of the issue by the Court of Appeals'
majority whatever weight that analysis merits.

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