Ohio Assn. of Pub. School Emp., AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn., AFL-CIO

• Decision Date: 26 January 1994
• Docket Number: AFL-CIO,No. 92-1877,92-1877
• Parties: , 145 L.R.R.M. (BNA) 2549, 87 Ed. Law Rep. 599 OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, AFSCME,, et al., Appellees, v. LAKEWOOD CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellant.
• Court: Ohio Supreme Court

Page 175

68 Ohio St.3d 175

624 N.E.2d 1043, 145 L.R.R.M. (BNA) 2549, 87 Ed. Law Rep. 599

OHIO ASSOCIATION OF PUBLIC SCHOOL EMPLOYEES, AFSCME, AFL-CIO, et al., Appellees, v. LAKEWOOD CITY SCHOOL DISTRICT BOARD OF EDUCATION, Appellant.

No. 92-1877.

Supreme Court of Ohio.

Submitted Sept. 22, 1993

Decided Jan. 26, 1994.

SYLLABUS BY THE COURT

1. A public school employee is entitled to procedural due process at the employee's posttermination arbitration hearing.

2. Procedural due process does not require face-to-face confrontation in a posttermination grievance arbitration hearing when the terminated public employee is permitted to cross-examine the adverse witness or witnesses at the hearing.

On October 1, 1990, an arbitration hearing was held to determine the merits of appellee Terry Johnson's grievance alleging that he had been terminated without cause from his employment as a custodian at Lakewood High School in Lakewood, Ohio. Johnson filed the grievance pursuant to the collective bargaining agreement between his union, appellee Ohio Association of Public School Employees, AFSCME, AFL-CIO, Chapter 134 ("OAPSE" or "the union"), and appellant, Lakewood City School District Board of Education ("board"). The asserted grounds for Johnson's termination were involvement in drug dealing and sexually suggestive behavior with students.

At the hearing, the board called a former Lakewood student, Holly Early, to support the allegation of drug dealing. Because Early said she feared Johnson and did not wish to appear in the same room with him, the arbitrator allowed her, over objection of Johnson's counsel, to testify from a separate room via closed-circuit television. Those in the hearing room could see and hear Early on a video screen, and Early could hear the parties in the hearing room. She was subject to direct and cross-examination.

Early testified that while she was a student at Lakewood High School, Johnson helped arrange for her to buy cocaine from a third person. She stated also that Johnson contacted her later and told her to deny that he had helped her obtain drugs. She testified further that "I'm just scared that something might happen to me. And to my family." On cross-examination Early admitted that Johnson had not threatened her, that she had become pregnant out of wedlock, and that she had bought and used drugs.

Based on the testimony of Early and other witnesses at the hearing, the arbitrator decided that although the evidence of sexual misconduct was insufficient to warrant termination, Early's testimony did establish Johnson's involvement in a drug deal. He therefore denied the grievance. The Cuyahoga County Court of Common Pleas confirmed the arbitrator's decision. Appellees herein appealed, arguing that the arbitrator had violated Johnson's procedural due process rights by refusing him face-to-face confrontation with Early. The court of appeals agreed, and reversed and remanded the case.

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

Lucas, Prendergast, Albright, Gibson & Newman and Rankin M. Gibson, Columbus, for appellees.

Squire, Sanders & Dempsey, Jeffrey J. Wedel, Arthur A. Kola and Brian A. Paton, Cleveland, for appellant.

MOYER, Chief Justice.

We are asked to decide whether procedural due process requires direct face-to-face confrontation between a discharged employee and the principal witness against him at a posttermination arbitration hearing. We hold that there exists no absolute right to face-to-face confrontation under these circumstances, and accordingly we reverse the court of appeals.

It is not disputed that Terry Johnson has a protected property right to continued employment. Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494. Before the state may deprive a person of a property interest, it must provide procedural due process consisting of notice and a meaningful opportunity to be heard. Id. In some situations, due process requires that the party about to suffer the deprivation first have the opportunity to confront and cross-examine adverse witnesses. Greene v. McElroy (1959), 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (revocation of government contractor's employee's security clearance); Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (revocation of public assistance benefits). Confrontation and cross-examination are important where the government action turns on questions of fact. Id., 397 U.S. at 269, 90 S.Ct. at 1021, 25 L.Ed.2d at 300.

Confrontation and cross-examination are not, however, absolute prerequisites to predeprivation due process. The inquiry as to what process is due depends on the facts of each case. Brock v. Roadway Express, Inc. (1987), 481 U.S. 252, 107 S.Ct. 1740, 95 L.Ed.2d 239. In Brock, the court stated: "Determining the adequacy of predeprivation procedures requires consideration of the Government's interest in imposing the temporary deprivation, the private interests of those affected by the deprivation, the risk of erroneous deprivations through the challenged procedures, and the probable value of additional or substitute procedural safeguards." Id. at 262, 107 S.Ct. at 1747, 95 L.Ed.2d at 250.

In Loudermill, a board of education terminated a security guard for lying on his employment application. Ohio law at the time permitted termination without a hearing. The court held that as a classified civil servant, the employee had a protected property right to continued employment, of which he could not be deprived without " * * * notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Id., 470 U.S. at 546, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. The court held that the procedure need not include a full evidentiary hearing, and distinguished Goldberg, stating that the equities in a welfare case were significantly different from those applicable in the context of public employment. Id., 470 U.S. at 545, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. It is thus clear from Loudermill that no right to confrontation and cross-examination attaches to a pretermination "hearing" of a public employee.

Neither this court nor the United States Supreme Court has yet expressly determined the requirements of procedural due process in a posttermination hearing of a public employee. Moreover, the fact that the proceeding was an arbitration, as opposed to a formal courtroom proceeding, was raised as an issue at oral argument in this court. Johnson contended that the collective bargaining agreement did not incorporate the very informal evidentiary rules of the American Arbitration Association ("AAA"), and consequently stricter evidentiary rules should have applied.

The AAA Voluntary Labor Arbitration Rules, which exempt hearings from the "legal rules of evidence" (Rule 28), serve the laudable goal of avoiding much of the formality, time consumption, and expense of a full trial-type hearing. When the arbitration concerns the termination of a public employee with a protected right to continued employment, however, the informality of arbitration may not supersede the requirements of due process. The scope of a property right is not defined by the procedures created for its removal, and due process must be satisfied whatever those procedures may be. Vitek v. Jones (1980), 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552.

Consequently, we hold that a terminated public school employee is entitled to procedural due process at the employee's posttermination arbitration hearing. We measure Johnson's arbitration hearing against the same baseline due-process requirements that would apply to any type of posttermination hearing. The informality inherent in arbitration does not lower the threshold of the test.

Having held that due process guides the procedures at a posttermination arbitration hearing, we next determine what process is due. Loudermill and Brock suggest that a posttermination hearing must provide the parties a more thorough opportunity to present their evidence and to challenge adverse evidence than that promised at a pretermination hearing. In Loudermill, the court rested its holding, with respect to the pretermination hearing procedures, in part on Loudermill's opportunity for more thorough posttermination hearings. 470 U.S. at 546-547, 105 S.Ct. at 1495-1496, 84 L.Ed.2d at 506-507. In Brock, the court upheld the informal preliminary procedures because "[f]inal assessments of the credibility of supporting witnesses are appropriately reserved for the administrative law judge, before whom an opportunity for complete cross-examination of opposing witnesses is provided." 481 U.S. at 266, 107 S.Ct. at 1750, 95 L.Ed.2d at 253...