FILED: October 17, 2001

DAVID YOUNG,

Appellant,

v.

STATE OF OREGON,

Respondent.

Appeal from Circuit Court, Marion County.

Paul Lipscomb, Judge.

Argued and submitted May 22, 2001.

John Hoag argued the cause and filed the briefs for appellant. With him on the opening brief was David A. Snyder.

Mary H. Williams, Assistant Solicitor General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Wollheim, Presiding Judge, and Lent and Peterson, Senior Judges.

WOLLHEIM, P. J.

Affirmed.

WOLLHEIM, P. J.

Plaintiff, a salaried employee of defendant State of Oregon, brought this class action, seeking a declaration that he and other current and former state executive, administrative, supervisory, and professional employees were entitled to overtime compensation under ORS 279.340 (1995). The trial court granted the state's motion for summary judgment, and plaintiff appealed. In Young v. State of Oregon, 161 Or App 32, 983 P2d 1044, rev den 329 Or 447 (1999), we reversed, holding that state "white collar" employees were not exempt under ORS 279.342 (1995) from eligibility for overtime compensation as provided in ORS 279.340 (1995). (1)

As pertinent here, on remand to the trial court, plaintiff moved for an order certifying the class as including elected officials. By separate orders, the trial court denied the motion to include elected officials and certified the class excluding those officials. The trial court reasoned that, because elected officials' annual salaries are set by statute, the legislature could not have intended that the officials also be eligible for additional, or overtime, compensation. The trial court also reasoned that elected officials are not "labor directly employed by [a] public employer" within the meaning of ORS 279.340, because they are employed only indirectly by the state as a consequence of their election. Plaintiff initiated this interlocutory appeal of the trial court's determination in that regard. We affirm.

In this court, plaintiff asserts that the trial court erred as a matter of law in excluding elected officials from the certified class. According to plaintiff, elected officials are "labor directly employed by [a] public employer" within the meaning of ORS 279.340(1), despite the fact that they receive salaries and that their salaries are set by state statute. Plaintiff relies on the circumstances that elected officials receive various benefits in addition to their salaries, including Public Employee Retirement System (PERS) benefits, medical and other insurance benefits, and reimbursement for travel and other expenses and that both Bureau of Labor and Industries (BOLI) rules and federal regulations set out methods for computation of overtime compensation for persons receiving salaries.

The state responds that, consistent with the statutory construction analysis set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), the trial court correctly determined that elected officials are not state employees for the purpose of ORS 279.340(1). The state asserts that the text and context of ORS 279.340(1)--including prior versions of the overtime statute, as well as related statutes setting the salaries of elected officials--demonstrate that the legislature did not intend the overtime statute to apply to elected officials. The state also argues that, even assuming that the text and context do not answer the question, and although the legislative history is unhelpful, policy considerations relevant to the third level of statutory construction analysis support the trial court's decision. Finally, the state argues that, even if elected officials are encompassed within ORS 279.340, the trial court nevertheless properly excluded them from the class in this case because specific statutes control the compensation, fringe benefits, and other reimbursements available to elected officials and because those specific statutes must be deemed to prevail over a statute providing generally for overtime compensation for public employees.

We begin with the text and context of the relevant statutes. ORS 279.340 provided, in part:

"(1) Labor directly employed by any public employer as defined in ORS 243.650 shall be compensated, if budgeted funds for such purpose are available, for overtime worked in excess of 40 hours in any one week, at not less than one and one-half times the regular rate of such employment. If budgeted funds are not available for the payment of overtime, such overtime shall be allowed in compensatory time off at not less than time and a half for employment in excess of 40 hours in any one week."

In our earlier opinion in this case, we determined that state "white collar" employees were not exempt under ORS 279.342(5)(a) from overtime compensation as provided in ORS 279.340(1). In reaching that conclusion, we determined that, for the purpose of ORS 279.340(1), the State of Oregon is a public employer and the term "labor" means "all employees of a subject employer." Young, 161 Or App at 36. As pertinent here, however, we agree with the trial court that the question remains whether elected officials are "directly employed" by the state.

By its terms, neither ORS 279.340 nor any other provision setting out requirements for hours of labor by public employees, ORS 279.334 to 279.342, expressly states what is meant by the phrase "directly employed" or indicates the categories of persons to whom the phrase applies. The plain meaning of the adverb "directly" is "without any intervening agency or instrumentality or determining influence : without any intermediate step." Webster's Third New Int'l Dictionary, 641 (unabridged ed 1993). In turn, the verb "intervene" means "to occur, fall, or come between points of time or events," id. at 1183, and the words "agency" and "instrumentality" mean a thing by or through which an end is achieved. Id. at 40, 1172. The plain meaning of the verb "employ" is "to use or engage the services of" and "to provide with a job that pays wages or a salary." Id. at 743. To "engage" is "to provide occupation for" or "to arrange to obtain the services of." Id. at 751. To "provide" is to supply or furnish. Id. at 1827. Based on those plain meanings, we conclude that a public employer "directly employ[s]" labor when the public employer itself, without any intermediate instrumentality or event, obtains or arranges to obtain the services of a person and thus furnishes that person for some time period with a job.

Applying the described interpretation of the phrase "directly employed" to elected officials, we conclude that elected officials are not "directly employed" by the state within the meaning of that phrase in ORS 279.340(1). First, although the state uses--that is, in at least one sense, "employs"--the services of an elected official (and although, as an administrative matter, the state pays the official's salary out of the state treasury, see ORS 292.010), the state as an entity does not itself initially obtain, or arrange to obtain, the elected official's services. Rather, the employment relationship between an elected official and the state, to the extent one exists, is achieved through the intermediate event or instrumentality of the official's election to office by the voters. See, e.g., Or Const, Art IV,