Burge v. Okla. Empl. Sec. Comm'n
| Decision Date | 20 April 1948 |
| Docket Number | Case Number: 33048 |
| Citation | 200 Okla. 429,1948 OK 89,195 P.2d 285 |
| Parties | BURGE v. OKLAHOMA EMPL. SEC. COMM'N |
| Court | Oklahoma Supreme Court |
¶0 1. STATES - Employee entitled to notice and hearing before removal.
Ordinarily where an employee does not bold his position at pleasure, but holds during good behavior or subject to removal for cause, after notice in writing specifying the charges is furnished him, then, before he can be removed, there must be notice and a hearing given to him.
2. OFFICERS - Oklahoma Employment Security Commission - Jurisdiction of commission to rate employee in any classification justified by evidence.
Where the rules of Oklahoma Employment Security Commission provide for rating of an employee's services, which ratings include five grades from "excellent" to "unsatisfactory", and an employee's rating by his superior officer is changed from "very good" to "fair", from which change an employee appeals to the commission, the commission has jurisdiction to rate the employee in any classification the evidence justifies.
3. SAME - Authority of commission to order employee's discharge without notifying him in writing specifying charges.
Upon an appeal to the Oklahoma Employment Security Commission by an employee concerning his rating and the commission finds after a full hearing that said employee's rating should be "unsatisfactory", the commission has authority to order said employee's discharge without notifying him in writing specifying the charges against him.
4. CERTIORARI - Review confined to question of jurisdiction of inferior court or board.
The common law writ of certiorari as used in this jurisdiction brings up for review only two questions: (1) did the inferior court or board have jurisdiction, nd (2) did it keep within that jurisdiction in the order made or action taken. It cannot be used to correct errors of law or fact committed by the inferior court or board within the limits of its jurisdiction.
Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.
Certiorari proceeding by J. Ted Burge against the Oklahoma Employment Security Commission et al. From the judgment, plaintiff appeals. Affirmed.
Edward M. Box, of Oklahoma City, for plaintiff in error.
Bruton Wood, Burton Duncan, and Gerald S. Tebbe, all of Oklahoma City, for defendants in error.
¶1 This action was originally brought in the district court of Oklahoma county by J. Ted Burge, hereinafter referred to as plaintiff, seeking to restrain the defendants, Oklahoma Employment Security Commission, hereinafter referred to as commission, and H.E. Pendergast and T.D. Nicklas, from discharging him as claims examiner of the commission, pursuant to an order made by them, until he had had an opportunity to be heard on appeal by the Merit System Council, hereinafter referred to as Council. While said suit was pending, his appeal was heard by the Council and said Council recommended that said plaintiff be reinstated, but the commission refused to concur in the recommendation of the Council and affirmed its previous order of discharge.
¶2 Thereafter plaintiff filed an amended and supplemental petition seeking relief by way of certiorari. In his petition plaintiff in substance alleged that he was employed by commission, which is a statutory body created under the laws of Oklahoma, and that said commission adopted rules governing the eligibility, classification, and regulation of their employees under a merit system. He then pleaded certain rules relating to the tenure of office of permanent employees, method of dismissal, appeal from an order of dismissal, recommendations of the Council to the commission, and consideration of such recommendations by the commission.
¶3 Plaintiff further alleged that under said rules it was the duty of the commission to rate and grade employees every six months in the following classifications; "excellent", "very good", "good", "fair", or "unsatisfactory"; that the performance of the employee for the entire period for which he is rated must be considered. The rater must not be influenced by his performance in a short time immediately preceding the preparation of the service rating. Said rules also provided against discrimination in said rating.
¶4 Plaintiff alleged that at all times prior to the 27th day of June, 1945, his rating over a period of seven years had been "very good". Plaintiff then alleged that the defendants, Pendergast and Nicklas, his superiors, conspired to reduce his grade to "fair" instead of "very good"; that he appealed from the action rating him as "fair" to said Commission; that no charges were ever filed upon which said Commission was authorized to order his discharge, but that upon said hearing an order was entered ordering his discharge. Plaintiff alleged that Nicklas and Pendergast were prejudiced against said plaintiff because he had testified in a hearing before the commission, which hearing resulted in the discharge of Pendergast by the commission. Plaintiff further alleged that he appealed from the commission's order discharging him to the Council and after a full hearing the Council recommended that he be reinstated, but that said commission refused to concur in said recommendation of the Council and reaffirmed the previous order of discharge. Plaintiff also alleged that said action of the commission was unjustified because said action was not based upon any charges filed, or proof adduced, at said hearing; further, that said commission is bound to follow the recommendation of the Council on appeal, but that said commission disregarded the recommendation of said Council arbitrarily.
¶5 To which pleadings the defendant commission answered, alleging in substance, that said commission is a statutory body created under the laws of Oklahoma; that its powers and duties are defined by the Oklahoma Employment Security Act (40 O.S. 1941 §§ 211 et seq.) as amended (Laws 1941, pages 136 et seq.), and that said commission had promulgated certain rules as alleged by plaintiff. It denied that the rating given to plaintiff by Pendergast and Nicklas was arbitrary. It further alleged that plaintiff should have been rated as "unsatisfactory"; that the commission had the authority to discharge plaintiff; that it was not bound to follow the recommendation of the Council; that the action of the commission was lawful and reasonable and in accordance with its rules; and that the discharge of plaintiff was based on proper cause after hearing and based upon competent evidence. Defendant further alleged that the district court had no jurisdiction over the defendant commission; that said action was in effect a suit against the state and the state had not given its consent to sue said commission; and that this action seeks to control the discretion of said commission in the performance of its duties.
¶6 The defendants, Nicklas and Pendergast, filed similar answers, to which the plaintiff filed a reply consisting of a general denial. At the trial plaintiff offered as evidence the record presented to the Merit System Council, including the testimony before the commission. The separate demurrers of the defendants were overruled. Thereafter both plaintiff and defendants moved for judgment. The trial court rendered judgment denying plaintiff any relief.
¶7 Pursuant to plaintiff's request for a hearing concerning change of rating, the record discloses that three hearings were held by the commission, the first one on August 9th, the second, August 23rd, and the last hearing on August 27th. At the hearings held on August 23rd and August 27th, considerable evidence was introduced concerning the unfitness, attitude, and ability of plaintiff as an employee. The evidence produced at these hearings was designed to show that the rating of plaintiff should have been "unsatisfactory". At these hearings plaintiff produced evidence to show that his work, as well as his attitude, justified his contention that he should have been rated as "very good", if not better. We deem it unnecessary to go into detail concerning the evidence presented to the commission except to say that hearings were held, at which the plaintiff was present and had an opportunity to, and did, present his side of the controversy to the commission.
¶8 Plaintiff, in his first proposition, contends that the commission was without jurisdiction in the hearings held to order plaintiff's discharge. In support of this proposition plaintiff contends that the only matter the commission was authorized to consider was his request for a hearing based upon his protest changing his rating from "very good" to "fair". Plaintiff refers to section 2, art. 12 of the rules of the commission, which provides in substance that the commission, after notice in writing to an employee stating specific reasons therefor, may dismiss an employee for cause. Section 6 of art. 12 provides in substance that the tenure of every permanent employee shall be during good behavior and the satisfactory performance of his duties as disclosed by his service rating. Plaintiff, therefore, states that construing sections 2 and 6, supra, together, means that as long as the employee performs his work satisfactorily, he cannot be discharged by the commission except after a notice in writing stating specific reasons therefor and after an opportunity to be heard is accorded; and in support of his contention, cites McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448, which involved a similar question. Therein the court said:
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