Guarino v. Department of Social Welfare

• Court: Rhode Island Supreme Court
• Writing for the Court: WEISBERGER
• Citation: Guarino v. Department of Social Welfare, 410 A.2d 425, 122 R.I. 583 (R.I. 1980)
• Decision Date: 18 January 1980
• Docket Number: No. 77-405-M,77-405-M
• Parties: Carlos GUARINO v. The DEPARTMENT OF SOCIAL WELFARE of the State of Rhode Island et al. P.

Page 425

410 A.2d 425

122 R.I. 583

Carlos GUARINO v. The DEPARTMENT OF SOCIAL WELFARE of the State of Rhode Island et al.

No. 77-405-M.P.

Supreme Court of Rhode Island.

Jan. 18, 1980.

[122 R.I. 589] Leo Paul Attilli, Providence, for petitioner.

Dennis J. Roberts II, Atty. Gen., Forrest L. Avila, Sp. Asst. Atty. Gen., for respondents.

OPINION

WEISBERGER, Justice.

This case comes before us on a petition for certiorari to review a Superior Court judgment sustaining a determination of the Personnel Appeal Board (the board) which confirmed a discharge of the petitioner by the Director of the Department of Social Welfare. This petition was filed under the review provisions of the Administrative Procedures Act, G.L. 1956 (1977 Reenactment) § 42-35-16. The facts underlying the controversy are as follows.

Carlos Guarino (petitioner) had been employed by the Department of Social Welfare of the State of Rhode Island for a period of nine years. Specifically, on March 18, 1970, petitioner was assigned to duty as youth home life supervisor at the Youth Correctional Center (YCC), a division of the Rhode Island Training School for Boys; he had held this position for ten months prior to the incident of which he complains. Five days per week, petitioner worked a shift beginning at 7 a. m. and ending at 3 p. m. Around noon on the date in question, petitioner's immediate supervisor notified him that the person who would normally relieve petitioner at 3 p. m. was ill and that petitioner had to remain on the job until a replacement could be obtained. Efforts made to find a replacement, however, were unavailing. At 3 p. m., petitioner agreed to stay for one more hour but stated that he would then leave for the day. His supervisor (Mr. Gervais) notified the superintendent, Joseph P. Devine, of petitioner's response. In turn, Mr. Devine instructed the supervisor to inform petitioner that he must "stay until a replacement was found, and, if he walked out, as he was threatening to do, to keep right on walking." This message was relayed to petitioner; nevertheless, he left his job at approximately 4 p. m. without having been relieved of his duty either by a replacement or by permission of his superior.

As a result of this action, upon recommendation of Superintendent Devine, petitioner was discharged by means of a letter of termination dated April 15, 1970. The following day his appeal was taken to the board in accordance with the provisions of G.L. 1956 (1969 Reenactment) § 36-3-10. The board held hearings over a period of time beginning May 13, 1970, and ending on December 9, 1970. A decision confirming the discharge by the appointing authority was filed April 27, 1971. From this decision petitioner claimed an appeal to the Superior Court on May 12, 1971, pursuant to the provisions of G.L. 1956 § 42-35-15. A decision of the Superior Court was rendered October 27, 1977, and thereafter judgment was entered affirming the decision of the Board.

The petitioner raises a number of issues, of which only one is entitled to serious consideration. He asserts that the failure to afford him a pre-termination hearing violates due process of law as that concept has been defined and applied by the Supreme Court of the United States in varying contexts. See, e. g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (preliminary hearing on probable cause required before parolee may be deprived of liberty); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (hearing required prior to seizure of property in replevin proceeding); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (hearing on probable cause required before deprivation of driver's license); ¹ Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (hearing required prior to termination of recipient's welfare benefits); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (hearing required prior to wage attachment).

The short answer to this contention is that a majority of the members of the Supreme Court of the United States have found the foregoing cases inapplicable to the discharge of a federal employee. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). In that case an employee of the Office of Economic Opportunity (OEO) had been charged with slandering other OEO employees, including the regional director, who preferred charges against him. In accordance with the provisions of the Lloyd-La Follette Act, ² as supplemented by Civil Service regulations and executive order, Kennedy, the employee, was entitled to appeal after his discharge to the Civil Service Commission and to receive an evidentiary hearing. He challenged the provisions of the act as constitutionally deficient in that there was no provision for a trial-type hearing before an impartial officer prior to Kennedy's removal from his employment. A majority of the Court rejected this contention and held that the evidentiary post-termination hearing provided before the Civil Service Commission met the requirements of due process. Writing for a plurality of three justices, Mr. Justice Rehnquist stated:

"Here appellee did have a statutory expectancy that he not be removed other than for 'such cause as will promote the efficiency of (the) service.' But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which 'cause' was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U.S. 886, 896-897, 81 S.Ct. 1743, 1749-1750, 6 L.Ed.2d 1230 (1961), we do not believe that a statutory enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congres...