Painter v. Graley

• Citation: 639 N.E.2d 51,70 Ohio St.3d 377
• Decision Date: 28 September 1994
• Docket Number: No. 93-325,93-325
• Parties: , 129 Lab.Cas. P 57,777, 9 IER Cases 1741 PAINTER, Appellant, v. GRALEY, Appellee.
• Court: Ohio Supreme Court

Page 377

70 Ohio St.3d 377

639 N.E.2d 51, 129 Lab.Cas. P 57,777, 9 IER Cases 1741

PAINTER, Appellant, v. GRALEY, Appellee.

No. 93-325.

Supreme Court of Ohio.

Submitted March 30, 1994.

Decided Sept. 28, 1994.

SYLLABUS BY THE COURT

1. Neither Section 2, Article I nor Section 11, Article I of the Ohio Constitution guarantees an unclassified public employee a right to seek partisan elected office while holding public employment.

2. To state a claim of wrongful discharge in violation of public policy, a plaintiff must allege facts demonstrating that the employer's act of discharging him contravened a "clear public policy." (Greeley v. Miami Valley Maintenance Contractors, Inc. [1990], 49 Ohio St.3d 228, 551 N.E.2d 981, affirmed and followed.)

3. "Clear public policy" sufficient to justify an exception to the employment-at-will doctrine is not limited to public policy expressed by the General Assembly in the form of statutory enactments, but may also be discerned as a matter of law based on other sources, such as the Constitutions of Ohio and the United States, administrative rules and regulations, and the common law. (Tulloh v. Goodyear Atomic Corp. [1992], 62 Ohio St.3d 541, 584 N.E.2d 729, overruled.)

In October 1984, appellant Shirley Painter was appointed to the position of Chief Deputy Clerk in the Bookkeeping Department of the Civil Division of the Municipal Court of the city of Cleveland. The parties agree that Painter was an unclassified civil servant. Her duties in that position were primarily clerical in nature, and did not involve policymaking.

In 1985, appellant became a candidate for the office of member of Cleveland City Council. Appellant ran as a Democrat. On August 21, 1985, she requested a leave of absence of undetermined duration from her chief deputy clerk duties. Her asserted reason for seeking a leave of absence was to "seek political office in the city of Cleveland."

During 1985, appellee Charles L. Graley held the position of assistant personnel director in the municipal court clerk's office. On October 30, 1985, Graley notified appellant that her employment as chief deputy clerk had been terminated effective October 1, 1985.

In October 1988, Painter filed an action in the Cuyahoga County Court of Common Pleas in which she demanded reinstatement to her chief deputy clerk position in the municipal court, an award of back pay from the date of her termination, punitive damages, and attorney fees. The court of common pleas granted summary judgment in Painter's favor, finding she was entitled to relief based on precedent established in Mancuso v. Taft (C.A.1, 1973), 476 F.2d 187; Vincent v. Maeras (S.D.Ill.1978), 447 F.Supp. 775; and Johnson v. Cushing (D.Minn.1980), 483 F.Supp. 608. The court held a hearing at which it received evidence relevant to the amount of damages suffered by Painter. The court ultimately awarded judgment to Painter and ordered that she be reinstated to the post of chief deputy clerk. Painter was also awarded damages representing back pay.

The Eighth District Court of Appeals reversed, and entered judgment in favor of defendant-appellee Graley. The appellate court found that Painter had not established a violation of her rights under the Ohio Constitution nor had she established a right to recover damages pursuant to Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. Painter v. Graley (1992), 84 Ohio App.3d 65, 616 N.E.2d 285.

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

Joseph R. Compoli, Jr. and James R. Goodluck, Cleveland, for appellant.

Sharon Sobol Jordan, Cleveland Director of Law, and Harold C. Reeder, Asst. Director of Law, Cleveland, for appellee.

Kevin F. O'Neill, Cleveland, urging reversal for amicus curiae, American Civil Liberties Union of Ohio Foundation, Inc. ¹

A. WILLIAM SWEENEY, Justice.

The court of appeals held that appellant did not suffer a violation of her rights under the Ohio Constitution, and was not entitled to relief under the doctrine of wrongful discharge in violation of public policy as established in Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981. We agree with the majority opinion of the court of appeals, per Presiding Judge (now Justice) F.E. Sweeney, that Painter did not suffer a violation of rights guaranteed by the Ohio Constitution, and we affirm its holding that defendant-appellee Graley was entitled to judgment in his favor.

Asserted Violation of Rights

Protected by the Ohio Constitution

Appellant urges us to hold that Sections 2 and 11, ARTICLE I OF THE OHIO CONSTITUTION² grant her a right to become a candidate for public office, and asks us to specifically recognize the existence of a private cause of action to obtain a remedy for the violation of that right. She argues that a public employer may not, consistent with the Ohio Constitution, discharge an unclassified public employee based solely on the reason that the employee became a candidate for public office. ³

We held in Provens v. Stark Cty. Bd. of Mental Retardation & Developmental Disabilities (1992), 64 Ohio St.3d 252, 594 N.E.2d 959, that "[p]ublic employees do not have a private cause of civil action against their employer to redress alleged violations by their employer of policies embodied in the Ohio Constitution when it is determined that there are other reasonably satisfactory remedies provided by statutory enactment and administrative process." Id. at syllabus. Provens did not determine whether a private, common-law cause of action might be available to unclassified public employees or others asserting violations of constitutional rights for which statutory or administrative remedies do not exist.

Painter has expressly disclaimed any reliance on rights or protections provided by the Constitution of the United States, and has instead confined her arguments to rights arising from the Ohio Constitution. The trial court granted Painter summary judgment based on the federal cases of Mancuso v. Taft (C.A.1, 1973), 476 F.2d 187; Vincent v. Maeras (S.D.Ill.1978), 447 F.Supp. 775; and Johnson v. Cushing (D.Minn.1980), 483 F.Supp. 608. Because those cases concerned federal substantive law, we find them to be of limited value in our interpretation of the Ohio Constitution, as "[t]he Ohio Constitution is a document of independent force." Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 616 N.E.2d 163, at syllabus. We note, however, that subsequent to the decisions of the Supreme Court of the United States in United States Civ. Serv. Comm. v. Natl. Assn. of Letter Carriers, AFL-CIO (1973), 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796, and Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, the very court which decided Mancuso questioned its continued vitality. Magill v. Lynch (C.A.1, 1977), 560 F.2d 22, 27. Similarly, Johnson v. Cushing supra, was later described as containing "undeniably an incorrect interpretation of the Hatch Act [Sections 1501 through 1508, Title 5, U.S.Code]. * * * [I]t is clear from the statute and the legislative history that a covered state employee is prohibited from running for public office in a partisan election, even if on approved leave without pay." Minnesota Dept. of Jobs & Training v. Merit Sys. Protection Bd. (C.A.8, 1989), 875 F.2d 179, 183. See, also, Waters v. Churchill (1994), 511 U.S. 661, ----, 114 S.Ct. 1878, 1886, 128 L.Ed.2d 686, 696 ("Even something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees. Broadrick v. Oklahoma, [supra]; Letter Carriers, supra; Public Workers v. Mitchell, 330 U.S. 75 [67 S.Ct. 556, 91 L.Ed. 754] [1947].").

This court has consistently held that rational restrictions on a public employee's right to run for office may be imposed without violating rights arising from the Ohio Constitution. See State ex rel. Keefe v. Eyrich (1986), 22 Ohio St.3d 164, 22 OBR 252, 489 N.E.2d 259 (restriction against becoming candidate for judge on the basis of age upheld); State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91, 561 N.E.2d 909 (city charter provision prohibiting an elected official from simultaneously holding other public office or other public employment upheld). See, also, Cincinnati v. Ohio Council 8, Am. Fedn. of State, Cty. & Mun. Emp., AFL-CIO (1991), 61 Ohio St.3d 658, 576 N.E.2d 745 ("[I]t is unquestionable that the city may limit its employees' participation in local partisan politics without violating the Constitution." Id., 61 Ohio St.3d at 670, 576 N.E.2d at 755.). Our holding today is consistent with the precedent established in these cases.

Although an unclassified employee is not prohibited by statute or Cleveland ordinance from seeking partisan elected office, ⁴ that fact does not lead to the conclusion that a public employer may not himself prohibit his at-will employees from running for such an office. Stated differently, such an employer is not constitutionally required to accept his subordinate's decision to become a candidate for election to partisan elected office, and maintain the employment of that subordinate during his candidacy or term of office.

We hold today that neither Section 2, Article I nor Section 11, Article I of the Ohio Constitution guarantees an unclassified public employee a right to seek partisan elected office while holding public employment. Thus, Painter's dismissal from the employ of the municipal court did not violate her Ohio constitutional rights. Claim Under Doctrine

of Wrongful Discharge in

Violation of Public Policy

Both the trial court and the court of appeals analyzed Painter's claim based on Greeley v. Miami Valley Maintenance Contractors, Inc. (1990), 49 Ohio St.3d 228, 551 N.E.2d 981, which created an exception to the common-law employment-at-will doctrine...