Fraternal Order of Police v. Ardmore

• Decision Date: 19 March 2002
• Docket Number: No. 95,131.,95,131.
• Citation: 44 P.3d 569,2002 OK 19
• Parties: FRATERNAL ORDER OF POLICE, LODGE 108, Kenneth Bridgeman, and Nathan Fountain, Plaintiffs/Appellants, v. CITY OF ARDMORE and the Public Employees Relations Board, An agency of the State of Oklahoma, Defendants/Appellees.
• Court: Oklahoma Supreme Court

44 P.3d 569

2002 OK 19

FRATERNAL ORDER OF POLICE, LODGE 108, Kenneth Bridgeman, and Nathan Fountain, Plaintiffs/Appellants, v. CITY OF ARDMORE and the Public Employees Relations Board, An agency of the State of Oklahoma, Defendants/Appellees.

No. 95,131.

Supreme Court of Oklahoma.

March 19, 2002.

James R. Moore, Oklahoma City, OK, for Appellants. Ted J. Pasley, Ardmore, OK, for Appellee City of Ardmore.

Gretchen Zumwalt, Asst. Atty. General, Oklahoma City, OK, for Appellee Public Employees Relations Board.¹

OPALA, J.

¶ 1 Two dispositive issues are presented on certiorari: [1] Are probationary police officers to be considered "permanent members" of the police department for invocation of grievance arbitration rights under the terms of the Fire and Police Arbitration Act (FPAA)²? and [2] Does the PERB have statutory authority to determine the membership status of a collective bargaining unit? We answer the first question in the negative and the second in the affirmative.

I THE ANATOMY OF LITIGATION

¶ 2 All the facts in this controversy were submitted to the PERB and to the district court by stipulation. FOP and the city entered into a collective bargaining agreement effective 1 July 1997 through 30 June 1998. The agreement contained, in Article II, the following provision:

The City recognizes Lodge # 108 of the Fraternal Order of Police as the exclusive bargaining agent for all permanent, full-time, commissioned police officers of the City of Ardmore, excluding:

(a) The Chief of Police.

(b) The Deputy Chief/Administrative Assistant.

(c) Employees who have not successfully completed one (1) year probationary period from initial date of employment, except as provided for by the Oklahoma state law.³

¶ 3 The city employed Kenneth Bridgeman and Nathan Fountain (officers) as sworn police officers. Bridgeman began his employment on 23 June 1997, Fountain on 14 July 1997. The city terminated the officers' service on 22 June 1998, while both still held probationary status. FOP filed grievances on their behalf, but the city refused to participate in the arbitration process.

¶ 4 In May of 1999 FOP brought a complaint before the PERB alleging an unfair labor practice in the city's refusal to arbitrate the officers' grievance.⁴ The PERB decided "[p]robationary police officers, upon termination, are not entitled to invoke the [grievance] arbitration provisions of the Collective Bargaining Agreement."⁵ FOP appealed from that administrative decision to the district court in accordance with the provisions of the Oklahoma Administrative Procedures Act.⁶ The district court upheld the PERB order as free of prejudicial error.⁷ The Court of Civil Appeals determined "probationary officers may not, as a matter of law, enjoy the same statutory [employment] protections as permanent police officers." The Court of Civil Appeals pronounced the district court's decision error-free and neither arbitrary nor capricious. It affirmed the district court's judgment. On certiorari granted on FOP's petition, we now vacate the Court of Civil Appeals' opinion and affirm the district court judgment.

II STANDARD OF REVIEW

¶ 5 This case calls for statutory interpretation and presents two legal questions. Questions of law stand before us for de novo review. In its reexamination of a trial court's legal rulings, an appellate court exercises plenary, independent, and non-deferential authority.⁸ Extant Oklahoma jurisprudence calls for an appellate court to defer to administrative expertise under some defined conditions and at times cloaks an administrative decision in a presumption of validity.⁹ No presumption need be recognized in this case. The issues presented on certiorari call solely for this court's resolution of legal questions.

III PROBATIONARY POLICE OFFICERS ARE NOT PERMANENT MEMBERS OF THE POLICE DEPARTMENT FOR INVOCATION OF GRIEVANCE ARBITRATION RIGHTS UNDER THE PROVISIONS OF THE FIRE AND POLICE ARBITRATION ACT

¶ 6 In articulating public policy for the Fire and Police Arbitration Act (FPAA), the legislature provides that the FPAA applies to the "permanent members" of a municipal police department.¹⁰ The Act itself does not define the term "permanent members." The phrase's meaning presents the heart of the controversy now before this court. The legislative inclusion of the adjective "permanent" eo ipso indicates the intent to set "permanent" employees apart from "non-permanent" personnel.

¶ 7 The city claims that "permanent," as used in the FPAA, means "not probationary" while FOP insists the adjective means "not temporary." The latter party points to a definition of permanent employment pronounced by this court's 1915 opinion in McKelvy v. Choctaw Cotton Oil Co.¹¹ That authority defines permanent employment as at-will employment, i.e. "employment for an indefinite period which may be severed by either party."¹² The terminus of the type of employment considered in McKelvy may be made at the election of either party, for an arbitrary reason, or for no reason.¹³

¶ 8 The issue to be resolved in McKelvy was whether a hiring contract that did not expressly state a specific length of employment should be considered a contract for temporary or for permanent employment.¹⁴ That is not the controversy in the case now before this court. No contention is advanced by either party that the officers were hired as temporary employees. Our adoption of the McKelvy definition for application to this case would have us impose an at-will employment status upon all permanent employees, a result in direct contravention of the FPAA's purpose.

¶ 9 Also cited by the FOP is the decision by the Court of Civil Appeals in City of Oklahoma City v. Public Employees Relations Bd.¹⁵ That opinion is said to pronounce that probationary police officers are permanent members of the department. The issue in Oklahoma City was whether certain police officers, despite their probationary status, could properly be considered permanent employees solely for qualifying as voting members of the bargaining unit.¹⁶ The court decided, for that purpose alone, probationary officers are to be treated as "permanent employees" of the city.¹⁷ It is hence settled that officers who hold probationary status are allowed to vote in the union's affairs.

¶ 10 The mere fact that a probationary police officer may — for some purposes — be considered a permanent employee of the city (because the employee's appointment has no specific termination date), does not confer on that employee the status of "permanent member" of the police department for invoking the benefit of grievance arbitration rights under the FPAA. We agree with the Court of Civil Appeals that recognition of probationary officers as voting union employees does not ipso facto entitle them to the right of grievance arbitration under the FPAA.

¶ 11 By the provision of the FPAA that defines the Act's relevant terms, police officers are described as "the permanent paid members of any ... police department in any municipality."¹⁸ It also states that "`[p]olice officers' as used herein shall be those persons as defined in Section 11-50-101 of this title."¹⁹ The terms of that final sentence unequivocally refer the reader to the statutes that govern the Police Pension and Retirement System.²⁰

¶ 12 The terms of 11 O.S.1991 § 50-101.6 of the pension enactment define "Officer."²¹ That definition stands incorporated by reference into the FPAA. The city also points out that the meaning of another term in the pension act, that of "member," was recently altered explicitly to include those persons who are in training to become permanent members of the police department.

¶ 13 When the police pension statute was first enacted in 1977, it included no definition of the term "member."²² In 1980, when the term was initially defined, members were described as "all eligible officers of a participating municipality."²³ That provision remained in effect until 1995, when the legislature expanded the definition of "member" to include "any person . . . who is undergoing police training to become a permanent police officer of the municipality."²⁴ According to the uncontroverted testimony of the city's witness at the PERB hearing, the probationary period is a time when new police officers receive intensive on-the-job training and evaluation.²⁵ Since a probationary officer is still undergoing initial police training, one in that position has not yet attained permanent membership status under the terms of the pension statute, even though an officer in that category is nonetheless included in the pension system. The conclusion we are compelled to draw is that the term "member," as employed by the terms of 11 O.S. Supp.1995 § 50-101.7, recognizes probationary police officers as a distinct class from permanent officers.

¶ 14 When the provisions of a statute assign one meaning to a term, its definition will apply in every other instance in which the same term is found anywhere else in the compilation.²⁶ Because in the pension statute the term "member" embraces two distinct classes of police officers, probationary and permanent, that distinction applies with equal force under the terms of the FPAA as well. Once the distinction is accepted as binding in the context of the FPAA, it becomes clear that the legislature's use of the modifier "permanent" eliminates from its ambit those officers who still hold probationary status. In short, it is clear the legislature did not intend probationary officers to stand in the class of permanent members of the bargaining unit for invocation of grievance arbitration rights.

¶ 15 Today's declaration of legislative intent also finds support in 47 O.S.1991 § 2-105 (b), the statute that governs the Oklahoma Highway Patrol. Newly-appointed highway patrol troopers must complete a one-year probationary period.²⁷ Only upon completion of the required probation are the new troopers classified as permanent.²⁸ The distinction...