State ex rel. Oklahoma Department of Agriculture v. Yanes

1987 OK 124, 755 P.2d 611, 1987 Okla. LEXIS 275, 1987 WL 2351
CourtSupreme Court of Oklahoma
DecidedDecember 8, 1987
DocketNo. 65062
StatusPublished
Cited by3 cases

This text of 1987 OK 124 (State ex rel. Oklahoma Department of Agriculture v. Yanes) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Oklahoma Department of Agriculture v. Yanes, 1987 OK 124, 755 P.2d 611, 1987 Okla. LEXIS 275, 1987 WL 2351 (Okla. 1987).

Opinion

SUMMERS, Justice.

A state employee, classified as subject to the Merit System under the Oklahoma Personnel Act,1 was terminated by her employer, the State Board of Agriculture, on the ground of abandonment under Ethics and Merit Commission Rule 5.6.2.2.2 That rule provides that an employee “who is absent from duty for three consecutive working days without prior authorization shall be deemed to have abandoned his or her position.” She appealed to the Commission with partial success, the Hearing Examiner finding that she should not be discharged but rather suspended for sixty days without pay. The employer appealed to the District Court of Oklahoma County which affirmed the ruling of the Commission. Employer again appealed and the Court of Appeals in a split decision reversed to reinstate the original termination based on abandonment. Having previously granted certiorari, we now vacate the Court of Appeals opinion and reinstate the order of the Ethics and Merits Commission as affirmed on appeal by the district court.

Two principal issues are before us. The first is presented by the employer’s challenge to jurisdiction in the Commission for want of procedural due process in the administrative proceedings. The second (and only necessary of resolution if the employee overcomes the jurisdictional challenge) is whether the Commission’s order is supported by substantial evidence. We resolve both questions in favor of the employee.

Ramona Yanes washed test tubes for the Department of Agriculture. Her testimony (through an interpreter) was that on September 1, 1983, her brother called from Honduras to say their mother was dying. The next morning (Friday) she had her minor daughter call her supervisor to say her mother would not be at work. She sold some of her jewelry and bought air tickets for Honduras for the following day. She made arrangements for her friend (who also served as her interpreter in these proceedings) to deliver a note to the Department, which was delivered the next working day, Tuesday, September 6th, and read as follows:

“Darla;
This is to advise you that I will not be in to work, because I had an emergency phone call on Friday, saying that my mother is very ill. So I am taking the next plane out for Honduras. Depending on the seriousness of the situation, I will let you know how long I will be gone. I am sorry to give you such short notice, but I did not have any other choice.
Ramona Yanes”

She returned to work on September 15 but was given a letter from the Department dated September 12 that she had been removed from the payroll effective September 1 under the Rule first above quoted for abandonment. On the following day she filed a timely appeal with the Oklahoma Ethics and Merit Commission, asserting that she had no intention of abandoning her job but rather felt compelled to travel to Honduras due to the extremity of her mother’s condition. The matter came on for hearing before the Commission’s Hearing Examiner on October 28, 1983.

THE PROCEDURAL DUE PROCESS QUESTION

Rule 5.6.2.2 in place at the time on which the Department relied read in full as follows:

“A permanent employee who is absent from duty for three consecutive working days without prior authorization shall be deemed to have abandoned his or her position effective at the beginning of the first day of unauthorized absence.
Action taken under this rule may not be appealed unless the employee shows good cause to the Ethics and Merit Commission within 15 days after failure to report to work, that such action was in fact a discharge under Rule 5.6.2.1.”

The Department has steadfastly maintained they did not discharge Ms. Yanes; rather that they have, under the rule, mere[613]*613ly deemed her to have abandoned the job by reason of three consecutive day’s unauthorized absence. The Department correctly points out that the latter part of the rule provides such action is not appealable to the Commission unless the employee makes a showing to the Commission within fifteen days that the action was in fact a discharge.

The employee’s appeal to the Commission on September 16th satisfies the timeliness requirements insofar as she had any control over them. It is what happened thereafter that causes the Department to complain.

The chief administrative officer of the Ethics and Merit Commission, who is called the Special Counsel, testified that upon receipt of Yane’s appeal she proceeded to make a “threshold inquiry” into the matter. In the course of that inquiry she wrote Yanes asking for more information, and received back a letter from the travel agency providing information and dates regarding the flights to and from Honduras. Based on that inquiry she determined there was sufficient threshold information to entitle Yanes to a hearing.

Many times have we defined due process. In Dodds v. Ward, 418 P.2d 629 (Okl.1966) we said:

“The phrase ‘due process’ has a well defined meaning. See Kiespert v. Jenkins, 324 P.2d 283 (Okl.1958) wherein this Court held:
‘By due process of law is meant an orderly proceeding adapted to the nature of the case, before a tribunal having jurisdiction, which proceeds upon notice, with an opportunity to be heard, with full power to grant relief.’ ”

Notice and the right to be heard, however, are not ordinarily required during the investigatory stage of an administrative proceeding. Van Teslaar v. Bender, 365 F.Supp. 1007 (D.C.Md.1973); U.S. v. Woerth, 130 F.Supp. 930 (N.D.Iowa 1955), aff'd, 231 F.2d 822 (8th Cir.1956). See, Oklahoma Ethics Commission v. Walters, 746 P.2d 172 (1987). In Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-153, 61 S.Ct. 524, 536, 85 L.Ed. 624 (1941) it was said:

“The demands of due process do not require a hearing at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective.”

A preliminary agency decision which does not cause irreparable harm need not be preceded by a hearing where a hearing is held before the final administrative order becomes effective. Patlex Corp. v. Mossinghoff, 771 F.2d 480 (Fed.Cir.1985). The opportunity of the employer to participate in the hearing on the merits of the termination, after the threshold decision of the Commission to hold such a hearing, and to subsequently appeal from the final agency action provides the employer with due process. Id. 771 F.2d at 486.

The rule in question precludes an appeal unless the employee shows good cause to the Ethics and Merit Commission within 15 days after first missing work that the termination was a discharge rather than abandonment. It would be wholly impractical and unreasonable to conclude that the rule mandates a full hearing upon notice to all concerned within those 15 days.

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Bluebook (online)
1987 OK 124, 755 P.2d 611, 1987 Okla. LEXIS 275, 1987 WL 2351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oklahoma-department-of-agriculture-v-yanes-okla-1987.