White v. City of Del City, 107,711.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

• Decision Date: 17 January 2012
• Docket Number: Division No. 2.,No. 107,711.Released for Publication by Order of the Court of Civil Appeals of Oklahoma,107,711.Released for Publication by Order of the Court of Civil Appeals of Oklahoma
• Citation: 2012 OK CIV APP 5,270 P.3d 205
• Parties: Todd WHITE, an individual, Plaintiff/Appellant, v. CITY OF DEL CITY, an Oklahoma municipality, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2012 OK CIV APP 5

270 P.3d 205

Todd WHITE, an individual, Plaintiff/Appellant,

v.CITY OF DEL CITY, an Oklahoma municipality, Defendant/Appellee.

No. 107,711.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

Sept. 30, 2011.Certiorari Denied Jan. 17, 2012.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Vicki L. Robertson, Trial Judge.AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS

Loren Gibson, Gibson & Associates, P.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant.

David W. Kirk, Robert Ray Jones, Jr., Lytle, Soule & Curlee, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee.

JOHN F. FISCHER, Vice–Chief Judge.

¶ 1 Plaintiff Todd White appeals an order of the district court partially dismissing his claims against the City of Del City.

BACKGROUND

¶ 2 Todd White was employed as a police officer for the City of Del City from November 2005 until August 30, 2006, when his employment was terminated. At the time of his termination, White was a probationary officer ¹ and was a member of the Oklahoma Police Pension and Retirement System (System). White sought review of his termination before the Del City Board of Review (Board) pursuant to 11 O.S.2001 § 50–123.² The Board held hearings on White's termination from December 2006 to November 27, 2007, at which time the Board voted to deny White's de novo appeal of his termination.

¶ 3 White filed a petition on December 27, 2007, alleging various theories of recovery against the City related to his termination and to post-termination events. The petition alleged: the right to an appeal in the district court of the Board's decision pursuant to 11 O.S.2001 § 50–123; a violation of due process rights pursuant to Okla. Const. art. 2, §§ 2, 7; interference with the right to earn a living pursuant to Okla. Const. art. 2, § 2; retaliatory termination by the City in response to White's pre-termination speaking on matters of public concern; public policy wrongful discharge related to the termination; and, White was defamed by the City's publication of untrue statements about the reasons for his termination. The City moved to partially dismiss White's claims based on 12 O.S. Supp.2010 § 2012(b)(1) and (6) for failure to state a claim on which relief may be granted with respect to: the appeal pursuant to 11 O.S.2001 § 50–123, the claim for violation of due process rights, and the defamation claim. The district court granted the City's motion as to these claims and certified the matters dismissed for interlocutory appeal pursuant to 12 O.S.2001 § 994, finding “no just reason for delay.” ³

STANDARD OF REVIEW

¶ 4 A motion to dismiss for failure to state a claim on which relief may be granted will be treated as a motion for summary judgment when “matters outside the pleading are presented to and not excluded by the court....” 12 O.S.2001 § 2012(B). See Washington v. State ex rel. Dep't of Corrs., 1996 OK 139, ¶ 8, 915 P.2d 359, 361–62; Aven v. Reeh, 1994 OK 67, n. 1, 878 P.2d 1069. Because City filed a brief in support of its motion to dismiss that includes materials outside of the pleadings that do not appear to have been excluded by the district court, we find the motion to dismiss should be treated as a motion for summary judgment.⁴

¶ 5 We review the district court's grant of summary judgment using a de novo standard. Head v. McCracken, 2004 OK 84, ¶ 3, 102 P.3d 670, 674; Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. “Although factual matters are considered in ruling on a summary judgment motion, the ultimate decision turns on the purely legal determination of whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions.” Head, 2004 OK 84, ¶ 3, 102 P.3d at 674 (citing Carmichael, 1996 OK 48, ¶ 2, 914 P.2d at 1053). On review we examine “the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact, and all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party.” Id. (citing Manley v. Brown, 1999 OK 79, n. 30, 989 P.2d 448).

¶ 6 Resolution of this appeal involves “a question concerning statutory interpretation because the meaning of a legislative enactment ... is central to determining ... entitlement to summary judgment.” Id. ¶ 5. “A legal question involving statutory interpretation is subject to de novo review, i.e., a non-deferential, plenary and independent review of the trial court's legal ruling.” Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654 (citing Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 305 and n. 5).

ANALYSIS

¶ 7 White contends he was terminated from his employment without “just cause” as he claims is required by statute for members of the System, and that the termination and subsequent review process violated his due process rights. White further alleges the City defamed him by forcing him to make false and defamatory publications to third parties.

I. Entitlement to Appeal the Board's Decision

¶ 8 White contends that he is entitled to an appeal in the district court of the Board's decision pursuant to the procedures provided in 11 O.S.2001 § 50–123. The statute provides in part:

The governing body of every participating municipality, except municipalities which have provided for a civil service board of review or merit board, or have negotiated a contract covering discharge with their members to hear such appeals, shall establish a board of review to hear appeals concerning the discharge of members. The board of review shall consist of the mayor, ex officio, who shall be a voting member, and four members to be appointed by the governing body of the participating municipality....

11 O.S.2001 § 50–123(A). An appeal of the Board's decision is controlled by statute:

Notwithstanding any other provision of law, any aggrieved party may appeal the decision of the State Board in granting, denying or adjusting a pension or retirement benefit, and such appeal shall be made in the district court of Oklahoma County. The appeal shall be commenced within thirty (30) days after the date of the State Board's decision. Notice of the intent to appeal shall be given by the aggrieved party to the State Board within ten (10) days after the date of the State Board's decision. The proceedings, practice, and standards of review in the district court shall be governed by the Administrative Procedures Act except as otherwise provided in this section. The district court may affirm, reverse or modify the decision of the State Board. The court may also remand the cause with specific instructions to the State Board. The court costs and expense of preparation of any transcript shall be paid by the losing party.

11 O.S. Supp.2010 § 50–129.

¶ 9 Whether White is entitled to the protections provided in section 50–123 requires interpretation of that statute. The City claims exemption from the statutory requirements by virtue of its having created a civil service system (CSS) to review termination of members of the System. However, City's CSS expressly excludes probationary employees from its protection. The dispositive issue on appeal is whether the Legislature intended probationary employees who are members of the System to be entitled to protection by the statute. We note that this is a question of first impression in Oklahoma. ⁵

A. Construction of the Statute

¶ 10 “The primary goal of statutory construction is to ascertain and follow legislative intention.” Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307. “The intent is ascertained from the whole act based on its general purpose and objective. In construing statutes, relevant provisions must be considered together whenever possible to give full force and effect to each.” Oklahoma Ass'n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶ 5, 901 P.2d 800, 803.

¶ 11 The City claims White's appeal must fail because White was not entitled to review of his termination by the Board, or to an appeal of the Board's decision pursuant to 11 O.S.2001 § 50–123. The City contends that it is not required to provide White with the statutory procedures because it is exempt from the statute. The statute provides:

No member may be discharged except for cause. Any member who is discharged may appeal to the board of review herein provided. Appeals from decisions of said board of review may be taken in the manner provided for in this article, provided the provisions of this section relating to the board of review and discharge shall not apply to any municipality which has heretofore or hereinafter established by its charter civil service or merit system pertaining to the appointment and discharge of members and an independent board or commission having authority to hear actions involving the discharge of members.

11 O.S.2001 § 50–123(B). City contends that because the Del City Charter implements a civil service system and reviewing commission, it is exempt from the requirements of the statute. We agree that the statute was not intended to apply to cities that have implemented such a system. However, the City also concedes that as a probationary employee White was excluded from the protections provided by the City's CSS. Therefore, the City claims White was not entitled to review of his termination.

¶ 12 The statute, on the other hand, does not distinguish between pension members who are probationary employees and those who are not. It provides that:

All persons employed as full-time duly appointed or elected officers who are paid for working more than twenty-five (25) hours per week or any person hired by a participating municipality who is undergoing police training to become a permanent police officer of the municipality shall...