Summary
In Parfitt v. Columbus Correctional Facility, 62 Ohio St.2d 434, 406 N.E.2d 528, cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980), the Ohio Supreme Court, relying primarily on Arnett v. Kennedy, supra, 416 U.S. 134, 94 S.Ct. 1633, held that a pretermination hearing in connection with a dismissal under the Ohio statute was not required by the due process clause of the United States Constitution.
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No. 79-1531
Decided June 25, 1980.
Public employees — Removal from employment — Challenge — Employer-agency procedural rules — May not be asserted by employee, when — Not mandatory prerequisite to removal, when — R.C. 111.15.
1. In the absence of prejudice, a public employee in challenging his removal from employment may not assert the employer-agency's procedural rules, unless that employee is a member of the class which the rule was intended to benefit.
2. A rule which does not clearly grant public employees procedural rights will not be presumed to be a mandatory prerequisite to removal actions against those employees if promulgated under R.C. 111.15.
APPEAL from the Court of Appeals for Franklin County.
This action arises out of a strike by correctional officers and a licensed practical nurse (hereinafter "officers") at the Columbus Correctional Facility which began May 8, 1978. As a result of their activities during the strike, a number of officers were terminated from their employment for "neglect of duty and/or failure of good behavior," effective May 9 or 10, 1978.
The officers have not contested the fact that proper procedures under R.C. 124.34 were followed in their terminations. In removing the officers, however, David R. McKeen, the superintendent at the facility, failed to give the officers notice of the reasons for their removals and an opportunity to participate in a conference with him prior to issuing the removal orders.
Ohio Adm. Code 5120-7-05(C)(3) states in part:
"Prior to any suspension, reduction, or removal, the following procedure shall apply:
"(a) When the circumstances, gravity, or frequency of violations indicate that disciplinary action other than a written reprimand may be appropriate, the supervisor and/or the Personnel Officer shall confer with the employee about the facts in the case in private. If the employee is unavailable for a conference due to his participation in a work stoppage or has an unexcused absence of three consecutive days, an office conference is not required. In such cases, the employee shall be notified by mail of the reason(s) for discipline and given the opportunity for a conference within three (3) working days.
"(b) If, after conferring with the employee involved, if available, the supervisor and/or Personnel Officer decide that a suspension, reduction, or removal is warranted, they shall make a recommendation to the Appointing Authority. A record of the conference with the employee and the facts in the case shall be sent with the recommendation.***
"(c) The Appointing Authority shall review the record of the case. The final decision regarding what disciplinary action, if any, is appropriate shall be made by the Appointing Authority."
The officers appealed their removals to the State Personnel Board of Review which, after a hearing, determined, among other things, that there was good cause for the removals and that the removals were not invalidated by the failure of the superintendent to follow the procedure enumerated in Ohio Adm. Code 5120-7-05. As a consequence, the board affirmed the removals.
The officers appealed, arguing that the removals should be invalidated due to the failure of the superintendent to follow the procedure delineated in Ohio Adm. Code 5120-7-05 requiring notice and conferences prior to removal. The Court of Common Pleas of Franklin County affirmed the decision of the board of review. Upon appeal, the Court of Appeals reversed and remanded the cause.
The cause is now before this court upon the allowance of a motion to certify the record.
Mr. John T. Conroy, Mr. John J. Kerrigan and Mr. David Jenkins, for appellees.
Mr. William J. Brown, attorney general, Mr. B. Douglas Anderson, Mr. Robert P. Sherman and Mr. Loren L. Braverman, for appellants.
The sole question before this court is whether the procedure delineated for removals of corrections officers in Ohio Adm. Code 5120-7-05 is a mandatory prerequisite for such removals.
Rules issued by administrative agencies pursuant to statutory authority have the force and effect of law. See Kroger Grocery Baking Co. v. Glander (1948), 149 Ohio St. 120, 125; State, ex rel. Kildow, v. Indus. Comm. (1934), 128 Ohio St. 573, 580.
In cases such as the one at bar, however, an employee is challenging the actions of an agency by asserting the failure of the agency to follow procedures it has imposed on itself by rule. In the absence of prejudice, a public employee in challenging his removal from employment may not assert the employer-agency's procedural rules, unless that employee is a member of the class which the rule was intended to benefit.
It is extremely questionable whether these employees are among the intended beneficiaries of the rule. Although the rule arguably does provide an early opportunity for the employee to express his position, it can also be viewed as a procedure designed to enhance the fact finding process so that the appointing authority can render a proper decision in the matter.
There are two distinct provisions in the Revised Code for promulgating and filing agency rules. These are contained in R.C. Chapter 119 and in R.C. 111.15.
R.C. 119.02 states:
"Every agency authorized by law to adopt, amend, or rescind rules shall comply with the procedure prescribed in sections 119.01 to 119.13, inclusive, of the Revised Code, for the adoption, amendment, or rescission of rules. Unless otherwise specifically provided by law, the failure of any agency to comply with such procedure shall invalidate any rule or amendment adopted, or the rescission of any rule."
R.C. 119.01(C) states that for the purposes of R.C. Chapter 119:
"`Rule' means any rule, regulation, or standard, having a general and uniform operation, adopted, promulgated, and enforced by any agency under the authority of the laws governing such agency, but it does not include regulations concerning internal management of the agency which do not affect private rights."
R.C. 111.15 provides and has provided for filing of rules with the Secretary of State and the Director of the Legislative Reference Bureau without following the procedures in R.C. Chapter 119. By its terms R.C. 111.15 does not apply to "rule" as that word is used in R.C. Chapter 119.
The Department of Rehabilitation and Correction promulgated and filed Ohio Adm. Code 5120-7-05 pursuant to R.C. 111.15. In so doing, the department indicated an intent to promulgate a rule concerning internal management that does not affect private rights. Promulgation of a procedural rule clearly intended to benefit employees might be held to provide mandatory jurisdictional procedures which employees could assert, even though promulgated pursuant to R.C. 111.15. However, a rule which does not clearly grant public employees procedural rights such as Ohio Adm. Code 5120-7-05, will not be presumed to be a mandatory prerequisite to removal actions against those employees if promulgated under R.C. 111.15.
Even if the intent of the rule is not to benefit members of the class asserting the failure to follow the rule, a showing of prejudice in the failure to follow the rule will ordinarily invalidate the action. However, no prejudice has been shown in the case of the removal of the officers herein. No question is raised regarding the sufficiency of the evidence of misconduct and it is clear that David McKeen, the superintendent of the Columbus facility and the appointing authority, had personal knowledge of the facts which led to the removals.
Appellees argue that even if the rule is not interpreted as a mandatory prerequisite to their removals under state administrative law, the procedure, in providing a pretermination hearing, is required under the Due Process Clause of the United States Constitution and Sections 1, 16, 19 of Article I of the Ohio Constitution. In Arnett v. Kennedy (1974), 416 U.S. 134, the United States Supreme Court made it clear that a pretermination hearing was not required under the Due Process Clause to remove federal civil service employees. In that case, the court approved of a procedure essentially the equivalent of the one provided to classified employees in R.C. Chapter 124. There is no requirement, either direct or inferred, to grant a right to pretermination hearings such as those in Ohio Adm. Code 5120-7-05 under the Ohio Constitution's due course of law guarantee. The process under R.C. 124.34 provides adequate procedural safeguards to employees in the classified service.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.