Burge v. Okla. Empl. Sec. Comm'n, Case Number: 33048

• Court: Supreme Court of Oklahoma
• Writing for the Court: BAYLESS, J.
• Citation: 200 Okla. 429,1948 OK 89,195 P.2d 285
• Decision Date: 20 April 1948
• Docket Number: Case Number: 33048
• Parties: BURGE v. OKLAHOMA EMPL. SEC. COMM'N

1948 OK 89
195 P.2d 285
200 Okla. 429

BURGE
v.
OKLAHOMA EMPL. SEC. COMM'N

Case Number: 33048

Supreme Court of Oklahoma

Decided: April 20, 1948

Syllabus

¶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.

BAYLESS, J.

¶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...