Simpson v. Van Ryzin

• Decision Date: 10 August 1972
• Docket Number: 3 Div. 499
• Citation: 289 Ala. 22,265 So.2d 569
• Parties: James A. SIMPSON et al. v. James L. VAN RYZIN, individually, etc.
• Court: Alabama Supreme Court

Page 569

265 So.2d 569

289 Ala. 22

James A. SIMPSON et al. v. James L. VAN RYZIN, individually, etc.

3 Div. 499.

Supreme Court of Alabama.

Aug. 10, 1972.

William J. Baxley, Atty. Gen., William N. McQueen, Asst. Atty. Gen., for Director and Members of the State Personnel Board of the State of Alabama and said Board; Steagall & Adams, Ozark, and Rushton, Stakely, Johnston & Garrett and William B. Moore, Jr., Montgomery, for the Administrator and members of the Alcoholic Beverage Control Board of Alabama and said Board; James A. Simpson, Birmingham, pro. se., for appellants.

John P. Kohn, Calvin M. Whitesell and William R. Gordon, Montgomery, for appellee.

McCALL, Justice.

James L. Van Ryzin, the complainant, and appellee here, filed his bill of complaint in the Circuit Court of Montgomery County for a declaratory judgment against the members of the State Personnel Board, the Personnel Director of the Board, the Administrator of the Alabama Alcoholic Beverage Control Board, and the members of that Board. The bill seeks and prays for a declaration that the procedural rules of the Personnel Board pursuant to which the appellee, an employee of the Alcoholic Beverage Control Board (ABC Board), was dismissed from his classified position under the State Merit System Act, are unconstitutional and void, because they do not accord him procedural due process. Almon v. Morgan County, 245 Ala. 241, 246, 16 So.2d 511, 515, defines procedural due process:

'Procedural due process, broadly speaking, contemplates the rudimentary requirements of fair play, whether in a court or an administrative authority, which include a fair and open hearing before a legally constituted court or other authority, with notice and opportunity to present evidence and argument; representation by counsel, if desired; and information as to the claims of the opposing party, with reasonable opportunity to controvert them. (Citing authorities.)'

On April 8, 1971, the appointing authority, the Administrator of the ABC Board, notified the appellee in writing, in the form of a letter, that he was dismissed from his position, effective that date, specifying therein the reasons for dismissal. A copy of this letter of notification was sent to 'State Personnel.'

A hearing before the State Personnel Board was scheduled. However, before such hearing could be held, on May 14, Van Ryzin brought this declaratory judgment proceeding in the Circuit Court of Montgomery County, seeking, inter alia, to enjoin the ABC Board from dismissing him.

The trial court, in the declaratory judgment suit, made and entered a finding, among other things, that the letter of dismissal, dated April 8, 1971, did not set forth with sufficient particularity reasons for dismissal and that subsequent letters did not cure the defect, that rules of the Personnel Board were vague and indefinite as to the conduct required of an employee in order to avoid dismissal, and that the dismissal was an absolute, gross and arbitrary abuse of discretion on the part of the appointing authority. The trial court decreed that the appellee was entitled to a hearing before he could be dismissed, that the ABC Board forthwith restore him to his former position with back pay, that the State Personnel Board make and issue such rules that may be necessary to comply with its order and that it see that no punitive action is taken against the appellee inconsistent with this decree; further, that the State Personnel Board and all appointing authorities of the State of Alabama immediately promulgate reasonable rules and standards of conduct for employees. The court gave the appellants sixty days to act and report to it as to whether its decree had been carried out.

From the final decree in Van Ryzin's favor against all of them, the respondents appeal.

The controlling statute, Tit. 55, § 315, Code of Alabama, Recompiled 1958, provides in part:

'An appointing authority may dismiss a classified employee whenever he considers the good of the service will be served thereby, for reasons stated in writing, served on the affected employee, and a copy furnished to the director, which action shall become a public record. The dismissed employee may, within ten days after notice, appeal from the action of the appointing authority by filing with the board and the appointing authority a written answer to the charges. The board shall if demand is made in writing by the dismissed employee within ten days after notice of discharge, order a public hearing and if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the board may determine. * * *'

Rule XIII, Sec. 2(a)(b) and (c) of the Rules of the Personnel Board dealing with the subject of dismissals provides:

'(a) The appointing authority may remove any permanent employee of the classified service for cause only.

'(b) In all cases the appointing authority on or before the effective date shall furnish the affected employee with a written statement of the reasons for dismissal, a copy of which written statement, signed by the appointing authority, shall be furnished the State Personnel Director at the same time.

'(c) In any case of dismissal the affected employee may at any time, within ten days after the effective date of dismissal, request an investigation by the State Personnel Board. The State Personnel Board shall make an investigation in any manner it deems desirable or necessary in accordance with the Merit System Act, and shall file with the Director its report approving the dismissal or ordering the reinstatement of the employee.'

The appellee insists, and the trial court held, that when the phrase 'for cause' is included in a statute or rule relating to the dismissal of officials or employees, the law of the state dictates that the official or employee must be given a hearing before, rather than after, dismissal, for its timing, after such a summary discharge by the appointing authority does not satisfy due process requirements.

Under different circumstances, the general rule that an employee is entitled to a hearing before dismissal, as here relied on by the appellee, may hold true. See Parker v. Farish, 241 Ala. 127, 131, 1 So.2d 596, 600, where the court said:

'The generally accepted view, approved by this Court, is that when the power to remove an officer is for cause, there must be notice and a hearing and evidence taken and acted on. * * *' Touart v. State ex rel. Callaghan, 173 Ala. 453, 56 So. 211; State ex rel, McIntyre v. McEachern, 231 Ala. 609, 166 So. 36.

But where the plain, clear, and unambiguous language of the statute, and the rule in question, show a different legislative intent from that generated by the general rule of construction, and show that dismissal shall become effective when reasons therefor, stated in writing, are served on the employee and a copy is furnished the director, the general rule stated above must yield to express legislative will, notwithstanding the statute requires the appointing authority to state reasons in writing for dismissal, and the rule states that the appointing authority may remove the employee for cause only. The intent of the lawmakers to be gained from the language of the entire statute and rule is the controlling factor. It is clear to us from the express language of the statute and the rule, that both contemplate a dismissal by the appointing authority with a right to have a subsequent hearing before the Personnel Board, if desired. Unless a denial of due process of law, the appellee is not entitled to a prior hearing.

A public office which the legislature creates is not the property of the officer holder within the constitutional provision against depriving a man of property, nor does it ever become a vested right as against the right of the state to remove him. Heck v. Hall, 238 Ala. 274, 190 So. 280. And, one who desires to serve in an official capacity must submit to the orders and regulations under which he is admitted to service. Heck v. Hall, supra; Pool v. Williams, 280 Ala. 337, 194 So.2d 87; Waggoner v. Whatley, 282 Ala. 84, 87, 209 So.2d 370; State ex rel. Townsend v. Berning, 135 Ohio St. 31, 19 N.E.2d 155; State ex rel. Anderson v. Barlow, 235 Wis. 169, 292 N.W. 290.

Title 55, § 300, Code of Alabama, Recompiled 1958, provides that the Personnel Board may adopt rules, not inconsistent with the laws of the state, which may be necessary or appropriate to give effect to the provisions nad purposes of the Merit System Act. Rules not in conflict with the laws of Alabama have the force and effect of law.

Therefore, if the rules, relating to dismissals, adopted by the Personnel Board are not in conflict with the laws of Alabama, those rules have the force and effect of law.

The plain language of both enactments here involved shows that the rule, relating to dismissals (supra) does not conflict with the statute relating to dismissals (Code § 315). On the contrary, the rule harmonizes with and compliments the statute. Both contemplate dismissal of a classified employee by the appointing authority, effective before any hearing on the charges is had. If the statute (Code § 315) is valid, the rule is valid, and will have the force and effect of law.

While in Pool v. Williams, 280 Ala. 337, 194 So.2d 87, this court was construing the statute, Tit. 55, § 316, Code of Alabama, Recompiled 1958, providing suspension as punishment for improper behavior on the part of a public employee, the court also was opinion about the same issue as here involved, that is, whether a merit system employee is deprived of his constitutional right of due process of law by imposing punishment without first affording him a hearing.

It is true that the punishment of suspension is not nearly so severe as the punishment of dismissal, because the former is temporary and the latter, more or less, permanent. Nonetheless, they each impose a loss of pay and a loss of public...