Oklahoma Employment Security Commission v. Oklahoma Merit Protection Commission

1995 OK CIV APP 76, 900 P.2d 470, 66 O.B.A.J. 2594, 1995 Okla. Civ. App. LEXIS 79, 1995 WL 456236
CourtCourt of Civil Appeals of Oklahoma
DecidedMay 9, 1995
DocketNo. 83887
StatusPublished
Cited by16 cases

This text of 1995 OK CIV APP 76 (Oklahoma Employment Security Commission v. Oklahoma Merit Protection Commission) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oklahoma Employment Security Commission v. Oklahoma Merit Protection Commission, 1995 OK CIV APP 76, 900 P.2d 470, 66 O.B.A.J. 2594, 1995 Okla. Civ. App. LEXIS 79, 1995 WL 456236 (Okla. Ct. App. 1995).

Opinion

OPINION

HUNTER, Judge:

Appellee Linda Johnson (Johnson), a Senior Interviewer with the Oklahoma Employment Security Commission (OESC) applied for an intra-agency promotion to an advertised Manager I position. The cover letter accompanying the vacancy announcement, as well as the announcement, advised that all promoted employees would serve a six-month probationary period before the promotion would become final. Johnson was selected for the position. Soon after assuming her duties, Johnson received a congratulatory letter from the agency’s appointing authority. This letter did not mention that the promotion was dependent upon a successful completion of the probationary period before it became permanent1. The paperwork con[472]*472cerning the promotion, given to Johnson within one week of her promotion, as well as the monthly evaluations, clearly showed that the promotion was classified as probationary. Johnson received several satisfactory reports during her probationary period. Before the end of that six-month period, however, Johnson was notified in writing that she was being returned to her former position because of unsatisfactory performance as a supervisor, namely, (1) failure to follow her supervisor’s work instructions; (2) making a derogatory remark about a staff member in an office meeting and (3) making a racial slur regarding an unemployment insurance compensation claimant. The letter also advised Johnson that this personnel action was not appealable pursuant to Merit Rule 530:10-11-552.

Johnson nonetheless filed an appeal of OESC’s personnel action, which was initially dismissed by the Executive Director of the Merit Protection Commission (MPC) because the filing was untimely, having exceeded the 15-day limitation period. Johnson successfully appealed that decision to the full Commission of the MPC. The Executive Director then found jurisdictional requirements had been met and set the matter into the resolution process. Specifically, the Executive Director framed the issue for determination as whether “the statement in the Vacancy Announcement that all employees will serve a six month probationary period meets the requirements of Merit Rule 530:11 — 10— 55(a) which requires that the employee be informed in writing, before the effective date of the promotion of the determination of the Appointing Authority to require that a probationary period be served.”

The hearing officer concluded that Johnson was not properly given notice of the agency’s requirement to serve a probationary period and sustained Johnson’s appeal. The Merit Protection Commission denied OESC’s Petition for Reconsideration. OESC then filed for review in the District Court of Oklahoma County which affirmed the order of the Merit Protection Commission. On review, we find, based on consideration of the record but without weighing the evidence, that MPC committed an error of law which requires us to set the order aside. 75 O.S.1991 § 322. Generally, the reviewing court will not reverse an administrative decision unless “upon examination of the complete record it is left with a ‘definite and firm conviction that a mistake has been committed’ ...” Independent School District 4 v. Orange, 841 P.2d 1177, 1180 (Okl.App.1992) (citations omitted).

Johnson admitted that she saw the job vacancy announcement, but claimed she did not read all of it, just enough to get the vacant position number. The vacancy announcement and its cover memorandum were the only written notifications to applicants that the position had a probationary period requirement if it constituted a promotion for the successful candidate. All other writings in this case, namely, the congratulatory letter from the appointing authority, the OPM-143 and the evaluations, were all after the fact of the promotion. Because the rule requires written notice of probationary period before the effective date of the promotion, we address only whether the job vacancy announcement was fatally flawed because it stated “all promoted employees will serve a six (6) month probationary period before such promotions shall become final” rather than “the ” promoted employee. Merit Rule 530:10-11-55 states, in pertinent part:

[473]*473(1) When an employee is promoted intra-agency, the Appointing Authority may require such employee to serve a 6 month probationary period in the class to which the employee has been promoted or such other probationary period as provided by statute. No probationary period extension shall be permitted. However, the probationary period may be canceled at any time, making the promotion final. The employee shall be informed in writing, before the effective date of the promotion, of the determination of the Appointing Authority to require that a probationary period be served before such promotion shall become final. The Office of Personnel Management will be sent written notice when a probationary period is required for a promoted employee,
(2) If no probationary period is indicated the promotion shall be permanent. Unless the employee and the Office of Personnel • Management are notified otherwise before the end of any probationary period, the promotion shall automatically become permanent at the end of the final working day of such period.

On review, OESC contends that Johnson’s action was time-barred; that the administrative decision was arbitrary and capricious because the evidence revealed that Johnson saw the vacancy notice and that the administrative agency failed to make necessary findings although they were requested.

We agree with OESC’s assertion, however, that it gave proper notice under the Merit Rule. Interpretation of statutory language is a question of law and we review the determination of the language de novo. Fink v. State ex rel. DPS, 852 P.2d 774, 776 (Okl.App.1993). A rule promulgated by an administrative agency charged with the administration of an act, such as the Merit Protection Commission’s charge found in 74 O.S.Supp.1994 § 840-1.9(6) “has force and effect of law ...” Rotramel v. Public Service Company, 546 P.2d 1015, 1017 (1975). We find, as a matter of law, that a notice which advises that all promoted employees will serve a six (6) month probationary period is sufficient notice to the promoted employee, (emphases ours). “All” is defined as (1) the whole amount or quantity of as well as (2) every member or individual component of, each one of. Webster’s Third New International Dictionary, Unabridged, Merriam-Webster, Inc., 1986. Because the facts reveal that the vacancy announcement contained a valid notice of the probationary period and because the announcement was distributed before the employee assumed the position, a finding that the merit rule was violated is an arbitrary determination. An administrative agency’s determination is arbitrary and capricious when it is “willful and unreasonable without consideration or in disregard of facts or without determining principle, or unreasonable ... in disregard of facts and circumstances.” State ex rel. Bd. of Trustees, v. Garrett, 848 P.2d 1182, 1184 (Okl.App.1993). (citations omitted). Failure to read a notice, under the facts of this case, is not a defense available to Johnson after OESC proved that the notice was prominently placed in both the vacancy announcement and in the cover letter accompanying the announcement.

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1995 OK CIV APP 76, 900 P.2d 470, 66 O.B.A.J. 2594, 1995 Okla. Civ. App. LEXIS 79, 1995 WL 456236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oklahoma-employment-security-commission-v-oklahoma-merit-protection-oklacivapp-1995.