Okla. Pub. Emps. Ass'n v. Okla. Military Dept

• Decision Date: 10 June 2014
• Docket Number: No. 111463.,111463.
• Citation: 330 P.3d 497
• Parties: OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellee, v. OKLAHOMA MILITARY DEPT., Defendant/Appellant.
• Court: Oklahoma Supreme Court

330 P.3d 497

OKLAHOMA PUBLIC EMPLOYEES ASSOCIATION, Plaintiff/Appellee,

v.OKLAHOMA MILITARY DEPT., Defendant/Appellant.

No. 111463.

Supreme Court of Oklahoma.

June 10, 2014.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. III.

¶ 0 The Oklahoma Public Employees Association brought an action against the Oklahoma Military Department for declaratory judgment and injunctive relief to prevent the Department from making certain pay increases conditional upon declassification.The trial court granted a temporary injunction and temporary restraining order.The Department requested the trial court vacate the injunction and grant a new trial which was denied.The Department appealed and the Oklahoma Court of Civil Appeals reversed the orders and remanded for further proceedings.

THE OKLAHOMA COURT OF CIVIL APPEALS OPINION IS VACATED;THE TRIAL COURT'S DECEMBER 6, 2012, ORDER GRANTING TEMPORARY INJUNCTION IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION;THE TRIAL COURT'S FEBRUARY 25, 2013, ORDER OVERRULING MOTION TO VACATE IS AFFIRMED.

Kevin R. Donelson and Kelsie M. Sullivan, Fellers, Snider, Blankenship, Bailey, Tippins, P.C., Oklahoma City, OK, for Plaintiff/Appellee.

Susan E. Werner, Assistant Attorney General, Oklahoma City, OK, for Defendant/Appellant.

COMBS, J.

¶ 1We granted certiorari to consider the Oklahoma Court of Civil Appeals' decision to reverse the trial court's order granting a temporary injunction against the Defendant/Appellant, the Oklahoma Military Department(“Department”), and the trial court's order overruling the Department's motion for new trial and to vacate the temporary injunction.¹The trial court temporarily restrained and enjoined the Department from making pay increases conditioned upon leaving the classified service.

¶ 2 The record reflects the Department has approximately 330 state employees, of which 128 are in the classified service.Among the classified employees, some are permanent classified employees and some are probationary classified employees.Permanent classified employees are those who have completed their probationary period (one year) and therefore acquired the right to appeal involuntary demotion, suspension without pay, and discharge to the Oklahoma Merit Protection Commission.Title 74 O.S.2011, §§ 840–1.3(21) and 840–4.13(D).Probationary classified employees are those appointed employees who have been in the classified service for less than one year.Title 74 O.S.2011, § 840–4.13(D).Such probationary classified employees “may be terminated at any time during the probationary period without the right of appeal.”Id.

¶ 3 In 2011, 44 O.S.2011, § 21.1 was amended to require personnel appointed as state employees in the Department to be in the unclassified service and to provide additional leave flexibility.²To coincide with this amendment, the Department issued new policies on hiring, promotions and salary administration.The new policy references 74 O.S.2011, § 840–4.2(C), which provides existing classified employees may remain in the classified service when a classified position has been placed in the unclassified service.³Section 7 of the new policy indicates this choice is only applicable to permanent classified employees.It also provided that permanent classified employees may choose to move to the unclassified service after submitting a written resignation from their classified position.Any future vacancies will be filled exclusively in the unclassified service.

¶ 4Section 6 of the new policy provided for the treatment of probationary classified employees.It placed all probationary classified employees in the unclassified service effective November 1, 2011.It further provided for a five percent (5.0%) pay increase upon completion of one (1) year of service, given supervisor approval and available funding.

¶ 5Section 13 of the policy entitled “Approved Pay Increases and Promotions” provides “[a]ll promotions will be in the unclassified service.”This section does not specifically provide for pay increases for classified employees.

¶ 6 The record reflects in late August 2012 a series of e-mails by the Department: were sent detailing which classified employees would be eligible for a raise.The e-mails indicate a performance-based adjustment of five percent (5.0%) would be granted to those permanent classified employees who had received “exceeds standards” on their annual personal progress report.⁴However, an additional condition excluded from the raise all permanent classified employees who did not elect to resign from the classified service and enter the unclassified service.These classified employees were required to submit their resignation letters by August 30, 2012, in order to accept the offer.

¶ 7 On September 10, 2012, the Plaintiff/Appellee, the Oklahoma Public Employees Association⁵(“OPEA”), on behalf of some of the Department's affected permanent and probationary classified employees, filed a petition for declaratory judgment and injunctive relief.The OPEA's primary assertions were as follows:

(1)the amendments to 44 O.S.2011, § 21.1 are facially unconstitutional because they violate Article V, § 57 of the Oklahoma Constitution by not re-enacting and publishing at length 74 O.S.2011, § 841.30which concerns the process for an agency to request declassification of its employees,

(2) the probationary classified employees were denied due process by being automatically placed in the unclassified service without notice and opportunity to be heard,

(3) the affected employees are being denied equal protection under the Fourteenth Amendment of the United States Constitution and under the Oklahoma Constitution by being treated differently from other similarly situated state employees because no other classified employees have been given the ultimatum to declassify or be denied all statutorily conferred benefits and job status as provided under the Oklahoma Personnel Act (“OPA”), 74 O.S.2011, §§ 840–1.1 through 840–6.9,

(4) the Department is violating the OPA because 74 O.S.2011, § 840–4.2 states probationary employees may obtain permanent status in the classified service after twelve (12) months and the Department automatically denied them permanent classified status by declassifying them and placing them in the unclassified service prior to their obtaining permanent classified status,

(5)title 74 O.S.2011, § 840–2.17 provides the circumstances in which salaries can be increased and it does not provide for conditioning a pay increase on forfeiture of classified status, and

(6) the Department's policy forcing affected employees into the unclassified service violates the goal of the OPA, which is to, among other things, provide reasonable protection and security for those who have entered and will enter into the service of the state, provide procedures for advancement and career development, and to treat all employees fairly and equally.⁶

The Petition sought the following: (1) a declaration that the amendments to 44 O.S.2011, § 21.1 were facially unconstitutional, (2) the Department's retroactive enforcement and application of the amendments be found unconstitutional, (3) a permanent injunction prohibiting reclassification of affected employees, (4) a permanent injunction mandating affected employees need not forfeit their classified status as a condition of receiving salary increases, (5) a permanent injunction mandating that those probationary classified employees eligible to receive permanent classified status be given a fair opportunity to do so and/or notice and an opportunity to be heard in the event classified status is denied, and (6) attorney fees and costs.

¶ 8 Simultaneously, the OPEA filed a motion for temporary restraining order and temporary injunction.It argued a temporary injunction was necessary to preserve the controverted matter in status quo pending the outcome of the case.Citing National Collegiate Athletic Ass'n v. Owens,1976 OK 136, ¶ 15, 555 P.2d 879, 881.The OPEA also asserted it had met the four factor test to determine if a temporary injunction is proper.

¶ 9 This four factor test was most recently relied upon by this Court in Dowell v. Pletcher,2013 OK 50, ¶ 7, 304 P.3d 457, 460(citingDaffin v. State ex rel. Oklahoma Dept. of Mines,2011 OK 22, 251 P.3d 741).Therein we held:

To obtain a preliminary injunction, a plaintiff must show that four factors weigh in his favor: 1) the likelihood of success on the merits; 2) irreparable harm to the party seeking injunction relief if the injunctionis denied; 3) his threatened injury outweighs the injury the opposing party will suffer under the injunction; and 4) the injunction is in the public interest.

¶ 10 At the trial court level, the OPEA first asserted it is likely to prevail upon the merits of its claims because: (1) the Department's action refusing any opportunity for a pay increase to those who do not declassify is not authorized under the OPA, (2)the amendments to 44 O.S.2011, § 21.1 do not provide for retroactive application, i.e., they do not provide for forcing current classified employees into the unclassified service, and (3) the Department's attempt to retroactively declassify the affected employees violates their constitutional rights.

¶ 11 Next, the OPEA argued affected employees would suffer immediate and irreparable injury, loss and damages if the Department were permitted to continue with its current policy regarding compensation and classification of its employees.The OPEA quoted from our decision in Hines v. Independent Sch. Dist. No. 50, Grant County,1963 OK 85, ¶ 14, 380 P.2d 943, 945( citing Baker v. Lloyd,1947 OK 12, 198 Okla. 512, 179 P.2d 913) wherein we said “[i]njury or detriment is irreparable when it is incapable of being fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly...