Painter v. Graley

639 N.E.2d 51, 70 Ohio St. 3d 377

Opinions

A. William Sweeney, J.

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 11,² Article I of the Ohio Constitution 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 “[pjublic 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. -, -, 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 historically followed in Ohio. Traditionally, this doctrine allowed an employer to terminate the employment of his worker “ ‘at will for any cause, at any time whatsoever, even if done in gross or reckless disregard of [an] employee’s rights.’ ” Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 102, 23 OBR 260, 261-262, 491 N.E.2d 1114, 1116, quoting Peterson v. Scott Constr. Co. (1982), 5 Ohio App.3d 203, 205, 5 OBR 466, 468, 451 N.E.2d 1236, 1239.

In Phung, an employee asserted that his employer discharged him for the reason that he had reported company violations of “legal and societal obligations” to his employer, and had demanded that the company cease the violations. This court refused to acknowledge the existence of a public policy exception to the employment-at-will doctrine under those facts, stating that Phung had “failed to state a violation of a sufficiently clear public policy to warrant creation of a cause of action” Id.,Id., 23 Ohio St.3d at 102, 23 OBR at 262, 491 N.E.2d at 1116-1117.

In dissent, Justice Clifford F. Brown, joined by Justice A.W. Sweeney, argued that Phung’s allegations that his employer fired him as a direct consequence of his reporting legal improprieties described conduct in violation of clear public policy. Justice Brown maintained that “[t]his court, and the citizenry of Ohio, simply cannot tolerate an employer’s retaliatory discharge of an employee under such circumstances.” Id., 23 Ohio St.3d at 107, 23 OBR at 266, 491 N.E.2d at 1120. Justice Brown argued that public policy sufficient to justify an exception to the employment-at-will doctrine could be found in well-established sources such as legislation; administrative rules, regulations or decisions; and judicial decisions. Id.

In Greeley v. Miami Valley Maintenance Contractors, Inc. supra, we expressly recognized a cause of action in tort for wrongful discharge in violation of public policy. Greeley, at paragraph three of the syllabus. We thus expressly acknowledged an exception to the traditional employment-at-will doctrine in Ohio common law. Pursuant to Greeley, a discharged employee has a private cause of action sounding in tort for wrongful discharge where his or her discharge is in contravention of a “sufficiently clear public policy.” Id., 49 Ohio St.3d at 233, 551 N.E.2d at 986 (citing Phung, supra). In Greeley, we recognized that public policy was “sufficiently clear” where the General Assembly had adopted a specific statute forbidding an employer from discharging or disciplining an employee on the basis of a particular circumstance or occurrence.⁵ We noted that other exceptions might be recognized where the public policy could be deemed to be “of equally serious import as the violation of a statute.” Id., 49 Ohio St.3d at 235, 551 N.E.2d at 987.

Consistent with Greeley, we hold today that 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.”

Subsequent to Greeley, the courts of appeals in this state have differed as to whether an employee has a cause of action for wrongful discharge in violation of public policy not stated in a statute.⁶ In recent years, those courts which refused to acknowledge the existence of such a claim have had good basis for doing so in the syllabus in Tulloh v. Goodyear Atomic Corp. (1992), 62 Ohio St.3d 541, 584 N.E.2d 729, which reads: “[a]bsent statutory authority, there is no common-law basis in tort for a -wrongful discharge claim.” Id. at syllabus.⁷

Provisions found in the Ohio Constitution are necessarily statements of Ohio public policy, if not the most definitive statements of Ohio public policy. Strict and literal adherence to the syllabus of Tulloh would lead to the illogical result that courts could not recognize claims of wrongful discharge in violation of public policies where those policies arise from the Constitution of Ohio, unless that public policy was also incorporated into a legislative enactment.

The syllabus to Tulloh oversimplifies the public policy exception to Ohio’s employment-at-will common-law doctrine, and is hereby overruled. “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. As this court recently noted, “[w]hen the common law has been out of step with the times, and the legislature, for whatever reason, has not acted, we have undertaken to change the law, and rightfully so. After all, who presides over the common law but the courts?” Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, 253, 617 N.E.2d 1052, 1059. Today we reaffirm Greeley and hold that an exception to the employment-at-will doctrine is justified where an employer has discharged his employee in contravention of a “sufficiently clear public policy.” The existence of such a public policy may be discerned by the Ohio judiciary based on sources such as the Constitutions of Ohio and the United States, legislation, administrative rules and regulations, and the common law.

We have confidence that the courts of this state are capable of determining as a matter of law whether alleged grounds for a discharge, if true, violate a “clear public policy” justifying an exception to the common-law employment-at-will doctrine, thereby stating a claim. In making such determinations, courts should be mindful of our admonition in Greeley that an exception to the traditional doctrine of employment-at-will should be recognized only where the public policy alleged to have been violated is of equally serious import as the violation of a statute. Id., 49 Ohio St.3d at 234, 551 N.E.2d at 987.

We note as well that a finding of a “sufficiently clear public policy” is only the first step in establishing a right to recover for the tort of wrongful discharge in violation of public policy. In cases where this required element of the tort is met, a plaintiffs right of recovery will depend upon proof of other required elements. Full development of the elements of the tort of wrongful discharge in violation of public policy in Ohio will result through litigation and resolution of future cases, as it is through this means that the common law develops.⁸

In light of the foregoing analysis, it is necessary for us to determine whether a “sufficiently clear public policy” exists which precluded Painter’s firing from her unclassified position for the reason that she became a candidate for partisan elected office. We note that the General Assembly has not remained silent on the respective rights of unclassified employees and their employers, but rather has enacted several statutes as legislative statements of public policy in this area. Where the General Assembly has spoken, and in so speaking violated no constitutional provision, the courts of this state must not contravene the legislature’s expression of public policy. “Judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy.” State v. Smorgala (1990), 50 Ohio St.3d 222, 223, 553 N.E.2d 672, 674.

In adopting R.C. 1901.32, the General Assembly not only established Painter’s office of Chief Deputy Clerk in the Cleveland Municipal Court as an unclassified position, but also specifically provided that “any appointee under sections 1901.01 to 1901.37 of the Revised Code may be dismissed or discharged by the same power which appointed him.” In specifically designating chief deputy clerks to be unclassified, the legislature expressed the public policy that they serve at the pleasure of those who appointed them. That is, Painter’s at-will status as a public employee was prescribed by statute, and is not the result of the common-law employment-at-will doctrine. In that Painter’s dismissal did not violate her constitutional rights, the existence of this legislative directive precludes us from finding a “sufficiently clear public policy” against Painter’s dismissal based upon her becoming a candidate for office.⁹

Because there is no clear public policy in support of allowing public employees to become candidates for partisan elective office, we affirm the court of appeals’ finding that Painter’s claim of ■wrongful discharge lacks merit.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Resnick, J., concurs. Moyer, C.J., concurs in paragraphs one and two of the syllabus and in the judgment. Wright, J., concurs in paragraph one of the syllabus and in the judgment. Douglas and Pfeifer, JJ., concur in part and dissent in part. Brogan, J., dissents. James A. Brogan, J., of the Second Appellate District, sitting for F.E. Sweeney, J.

Footnotes

2

. Section 2, Article I of the Ohio Constitution provides:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”

Section 11, Article I of the Ohio Constitution provides:

“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.”

3

. Throughout this litigation, Painter has consistently asserted that she was dismissed for the sole reason that she sought elected office. Defendant Graley at no point has disputed this characterization of his motivation in dismissing Painter. On this record, we accept Painter’s assertion that the sole cause of her dismissal was her decision to become a candidate for the elected office of member of Cleveland City Council.

4

. R.C. 124.57 provides:

“No officer or employee in the classified service of the * * * cities * * * shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving any assessment, subscription, or contribution for any political party or for any candidate for public office; nor shall any person solicit directly or indirectly, orally or by letter, or be in any manner concerned in soliciting any such assessment, contribution, or payment from any officer or employee in the classified service of the state and the several counties, cities, or city school districts thereof, or civil service townships; nor shall any officer or employee in the classified service of the state and * * * cities * * * be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions.” (Emphasis added.)

5

. In Greeley, the plaintiff alleged that he had been fired as the result of a court order to his employer for wage assignment. The order required the employer to withhold amounts representing court-ordered child support payments from plaintiffs pay. Plaintiff claimed that his discharge violated R.C. 3113.213(D), which provides that “[n]o employer may use an order to withhold personal earnings [for satisfaction of child support orders] as a basis for a discharge of * * * an employee.”

6

. See, e.g., Shaffer v. Frontrunner, Inc. (1990), 57 Ohio App.3d 18, 566 N.E.2d 193; Clipson v. Schlessman (1993), 89 Ohio App.3d 230, 624 N.E.2d 220; cf. Edelman v. Franklin Iron & Metal Corp. (1993), 87 Ohio App.3d 406, 622 N.E.2d 411; Sabo v. Schott (Mar. 2,1994), Hamilton App. No. C-920941, unreported, 1994 WL 59464, discretionary appeal allowed in (1994), 70 Ohio St.3d 1435, 638 N.E.2d 1039; Collins v. Rizkana (Nov. 22, 1993), Stark App. No. CA-9310, unreported, 1993 WL 500478, motion to certify the record allowed in (1994), 69 Ohio St.3d 1429, 631 N.E.2d 640; Ricciardi v. Babcock & Wilcox Co. (Jan. 27, 1993), Summit App. No. 15728, unreported, 1993 WL 20999, motion to certify the record allowed in (1993), 67 Ohio St.3d 1409, 615 N.E.2d 1044, appeal dismissed on joint application in (1994), 69 Ohio St.3d 1420, 631 N.E.2d 160; Eagleye v. TRW, Inc. (Feb. 17, 1994), Cuyahoga App. No. 64662, unreported, 1994 WL 50671.

7

. The majority in Tulloh consisted of Chief Justice Moyer, Justice Wright, and two judges of courts of appeals sitting by appointment. Joining in Justice Douglas’s written dissent were Justices A.W. Sweeney and Resnick, current members of this court.

8

. In reviewing future eases, Ohio courts may find useful the analysis of Villanova Law Professor H. Perritt, who, based on review of eases throughout the country, has described the elements of the tort as follows:

“1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).

“2. That dismissing employees under circumstances like those involved in the plaintiffs dismissal would jeopardize the public policy (the jeopardy element).

“3. The plaintiffs dismissal was motivated by conduct related to the public policy (the causation element).

“4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).” (Emphasis sic.)

H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie? (1989), 58 U.Cin.L.Rev. 397, 398-399.

9

. Our opinion herein should thus not necessarily be extended to nonpublie employees. We express no opinion as to whether public policy would prohibit a private employer from discharging an employee based on that employee’s becoming a candidate for public office.