Maher, In re
| Decision Date | 01 October 1974 |
| Docket Number | No. 88-73,88-73 |
| Citation | 326 A.2d 142,132 Vt. 560 |
| Court | Vermont Supreme Court |
| Parties | , 75 Lab.Cas. P 53,483 In re Philip W. MAHER, Jr. |
Oreste V. Valsangiacomo, of Richard E. Davis Associates, Barre, for plaintiff.
Kimberly B. Cheney, Atty. Gen., Louis P. Peck, Asst. Atty. Gen., and Phoebe Morse, Asst. Atty. Gen., on the brief, for the State of Vermont.
Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.
The appellant, a nonprobationary employee of the State Highway Department, brought this action under the grievance procedure governing employees of the State of Vermont pursuant to 3 V.S.A. § 901 et seq.
On April 19, 1971, the grievant was placed on a 30-day warning period on the basis of his performance evaluation report which indicated a marginal performance. At the end of that period, appellant's performance evaluation report showed an overall rating of unsatisfactory. As a consequence, the grievant's employment was terminated with two weeks salary paid to him in lieu of notice.
The grievant's complaint was that 'the evaluation of his work performance, as contained in his Employee Evaluation Report dated April 12, 1971, is incorrect, inaccurate, arbitrary, capricious, and unreasonable.' The issue thus presented by the complaint was whether the appellant was wrongfully dismissed from State employment.
Subsequent to discharge from employment, the grievant was first afforded a hearing before the Commissioner of Highways and Personnel Board who decided adversely to the grievant. He then appealed to the State Employees Labor Relations Board for hearing and decision.
The appellant does not challenge the findings or order of the Board. Rather, he raises for the first time the single issue of whether the State violated his constitutional rights to due process by not affording him a hearing prior to the termination of his employment. This issue was not made or ruged below so the Board had no opportunity to pass on this point. It is our rule that an issue not raised by the substance of the proceedings below cannot, in the first instance, be considered by this Court. Dindo v. Denton, 130 Vt. 98, 109, 287 A.2d 546 (1972).
In spite of the exclusionary thrust of the rule regarding issues of first impression, the Court adheres to the view that questions of alleged constitutional import must be examined. Consequently, we must first decide whether this is one of those rare and extraordinary cases which is so grave and serious that it strikes at the very heart of the employee's constitutional rights. Cf. State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142 (1969). Questions of fairness involving procedural rights afforded by administrative bodies must be examined. Petition of Green Mountain Power Corp., 131 Vt. 284, 293, 305 A.2d 571 (1973). The issue presented approaches a due process problem of such constitutional dimensions and magnitude as to require an answer. It is only in this context that we will do so since the question is not otherwise properly before this Court.
This case is governed by the recent decision of the United States Supreme Court, Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The factual situation in that case is substantially similar to that involved in the case at bar. There the employee did not respond to the charges made against him but instead brought suit for injunctive and declaratory relief. The record indicates that the procedures followed in the case at bar comply with those in the Arnett case. The Supreme Court held that an employee's procedural due process wights under the Fifth Amendment were not violated by the failure of the Lloyd-LaFollette Act (5 U.S.C.A. § 7501) and implementing agency regulations to require a trial-type hearing prior to the employee's removal.
In the instant case, the grievant argues that the absence of a pretermination hearing is violative of procedural due process rights. Arnett and its precursors, Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct....
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In re J.F.C.
...City v. Ohms, 881 P.2d 844, 847 (Utah 1994) (court can review unpreserved error when exceptional circumstances exist); In re Maher, 132 Vt. 560, 326 A.2d 142, 144 (1974) (court will review errors so grave and serious as to strike to the heart of constitutional rights); Conner v. Universal U......
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Rich v. Montpelier Supervisory Dist.
...Id. The employee must be afforded the opportunity of a hearing "at a meaningful time and in a meaningful manner." In re Maher, 132 Vt. 560, 563, 326 A.2d 142, 144 (1974); accord Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976) (citing Armstrong v. Manzo, 380 U......
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Varnum v. Varnum
...(plain error "strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice"); In re Maher, 132 Vt. 560, 562, 326 A.2d 142, 144 (1974) (state employee's due process claim reviewable only upon showing that "this is one of those rare and extraordinary cases ......
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Raymond, In re
...(1977). This Court will, however, examine questions of alleged constitutional import raised for the first time on appeal. In re Maher, 132 Vt. 560, 326 A.2d 142 (1974). We conclude that the defendant has made an argument which, if accepted, would result in a finding that his constitutional ......
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Ruminations
...180 Vt. 345, 911 A.2d 281 (2006). [48] Putter v. Montpelier Public School System, 166 Vt. 463, 697 A.2d 354 (1997). [49] In re Maher, 132 Vt. 560, 326 A.2d 142 (1974). [50] State v. Ritter, 184 Vt. 565, 956 A.2d 1141 (2008). [51] Burlington Police Officers’ Association v. City of Burlington......