Local 4501, Communications Workers of America v. Ohio State University, 88-1772

• Decision Date: 07 February 1990
• Docket Number: No. 88-1772,88-1772
• Citation: 550 N.E.2d 164,49 Ohio St.3d 1
• Parties: , 58 Ed. Law Rep. 1000 LOCAL 4501, COMMUNICATIONS WORKERS OF AMERICA, Appellant, v. OHIO STATE UNIVERSITY et al., Appellees.
• Court: Ohio Supreme Court

Page 1

49 Ohio St.3d 1

550 N.E.2d 164, 58 Ed. Law Rep. 1000

LOCAL 4501, COMMUNICATIONS WORKERS OF AMERICA, Appellant, v. OHIO STATE UNIVERSITY et al., Appellees.

No. 88-1772.

Supreme Court of Ohio.

Submitted Nov. 21, 1989.

Decided Feb. 7, 1990.

Syllabus by the Court

1. A classified civil servant employee of the state of Ohio must be afforded a pretermination disciplinary hearing; however, such hearing need not be elaborate, but must afford the employee notice and the opportunity to have an explanation of the employer's charges and evidence against him, and an opportunity to present his side of the story. (Cleveland Bd. of Edn. v. Loudermill [1985], 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, applied and followed.)

2. A classified civil service employee of the state of Ohio does not have a constitutional due process right to have a stenographic record or a tape recording made of a pretermination disciplinary hearing.

Local 4501, Communications Workers of America ("Union"), is a labor organization which represents a great number of employees at the Ohio State University ("University"). Local 4501 and the University have entered into labor agreements covering skilled trades, maintenance and service employees. The agreements have a provision concerning the imposition of discipline upon the civil service employees in "Article 11, Discipline," as follows:

"11.3 No bargaining unit member covered by this Agreement shall be given a suspension, removal or demotion order without first being given the opportunity to attend a hearing at which the bargaining unit member or his representative may show cause why he or she should not be suspended, removed or demoted. * * * "

The procedure contemplated by Article 11 requires that a hearing be conducted prior to any discipline being imposed upon members covered by the agreement. The Union has requested the University to allow either a court stenographer or a tape recording to preserve the testimony given at the pretermination disciplinary hearing. The University has refused to allow the Union to utilize either of these methods or other alternatives to preserve the testimony at these hearings.

In its complaint in the Court of Common Pleas of Franklin County, seeking a declaratory judgment as to whether a record of the pretermination hearing is a constitutional right of these employees, the Union alleged that:

"The policy, regulation, and/or directive adopted by the University in refusing to allow a record to be made of testimony presented at disciplinary hearings is unreasonable, unconstitutional, contrary to Ohio and Federal law, in that it jeopardizes and interferes with an employee's right to continued employment and to present his evidence at a disciplinary hearing. The procedure adopted by the University encourages the changing of testimony in order to bolster and substantiate decisions taken by the University to empose [sic ] disciplinary action upon employees."

The trial court, upon defendants' motion to dismiss which was converted to a motion for summary judgment, found that plaintiff has no constitutional right to record a pretermination hearing, that rights of plaintiff must rest on grounds other than due process, and that, as a matter of law, the plaintiff's action must be dismissed.

The court of appeals affirmed the judgment of the trial court.

The cause is now before this court upon the allowance of a motion to certify the record.

Francisco A. Garabis, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Moots, Cope, Stanton & Kizer, L.P.A., Elizabeth M. Stanton and Wanda L. Carter, Columbus, for appellees.

HOLMES, Justice.

The Union appeals to this court setting forth the singular proposition of law that "due process of law guarantees a classified civil service employee of the state of Ohio [the right] to preserve testimony presented by the appointing authority and himself at a pretermination disciplinary hearing."

As properly relied upon by the court of appeals below, Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494, is the controlling case that speaks to the issue of what process is due an employee in a pretermination hearing. The Loudermill court held generally that "the pretermination 'hearing,' though necessary, need not be elaborate" and that " * * * 'something less' than a full evidentiary hearing is sufficient prior to adverse administrative action." Id. at 545, 105 S.Ct. at 1495. More specifically, the Loudermill court set forth the basic requirements as follows:

"The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. * * * [Citation omitted.] The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. * * * [Citation omitted.] To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Id. at 546, 105 S.Ct. at 1495.

Upon remand of the matter in Loudermill, the Sixth Circuit Court of Appeals, in affirming the decision of the district court, further clarified the process due an employee in such a pretermination hearing, as follows:

"The applicable substantive law is settled. It is clearly established that Loudermill, as a tenured public employee, was entitled to a pretermination hearing. Cleveland Board of Edn. v. Loudermill, 470 U.S. 532, 545, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). Such a hearing, though necessary, 'need not be elaborate.' Id. In fact, the employee is only entitled to:

" '[i] oral or written notice of the charges against him;

" '[ii] an explanation of the employer's evidence; and

" '[iii] an opportunity to present his side of the story.' " Id. 470 U.S. at 546, 105 S.Ct. at 1495.

"In this case, an onerous burden is not placed upon the employer by these requirements. Indeed, the Supreme Court has stated that where state law provides for a full administrative post-termination hearing and judicial review, the pretermination hearing:

"[']need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.[']

"Id. at 545-46, 105 S.Ct. at 1495. The Supreme Court, in Loudermill, held that to require more than this 'prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.' Id. at 546, 105 S.Ct. at 1495.

" * * *

" * * * Indeed, courts construing the Supreme Court's language in Loudermill have required only the barest of a pretermination procedure, especially when an elaborate post-termination procedure is in place * * *." Loudermill v. Cleveland Bd. of Edn. (C.A. 6, 1988), 844 F.2d 304, 310-312.

As noted by the Supreme Court in Loudermill, the purpose of the constitutionally required pretermination hearing is not to definitively resolve the factual or legal issues involved in a termination. Rather, it is simply "an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action * * *." Cleveland Bd. of Edn. v. Loudermill, supra, 470 U.S. at 545-546, 105 S.Ct. at 1495. The court in arriving at its determination set forth that a consideration of all aspects of any hearing rights afforded by the employer to the employee by state law must be balanced as to the due process afforded. The court stated: "We have pointed out that '[t]he formality and procedural requisition for the hiring can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.' * * * Under state law, respondents were later entitled to a full administrative hearing and judicial review * * *. Our holding rests in part on the provisions in Ohio law for a full post-termination hearing." ¹ Id. Just as the Supreme Court in Loudermill looked to the determinative law in Ohio at that time regarding due process hearing rights, we must also look to the current law in Ohio regarding such pretermination hearing rights. In addition to those rights still available in R.C. Chapter 124, R.C. 4117.10(A) provides, in pertinent part, that:

"An agreement between a public employer and an exclusive representative entered into pursuant to Chapter 4117. of the Revised Code governs the wages, hours, and terms and conditions of public employment covered by the agreement. If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure and the state personnel board of review or civil service commissions have no jurisdiction to receive and determine any appeals...