Tupper v. FAIRVIEW HOSP. & TRAIN. CENTER, ETC.

556 P.2d 1340, 276 Or. 657, 1976 Ore. LEXIS 933

• Court: Oregon Supreme Court
• Decided: November 18, 1976
• Status: Published

Opinions

HOWELL, J.

This case is before us on review from a decision of the Court of Appeals, 22 Or App 523, 540 P2d 401 (1975), which upheld the action of the Public Employe Relations Board (PERB) in affirming Tupper’s dismissal from public employment by Fair-view Hospital and Training Center. The Court of Appeals held that the hospital’s pretermination proceedings were constitutionally inadequate, but affirmed Tupper’s dismissal on the basis of the post-termination hearing conducted by PERB. The Court of Appeals also held that Tupper was entitled to an award of "lost wages and other benefits” for the time between his dismissal and the post-termination hearing, but refused to grant that relief in this proceeding on the grounds that PERB lacked the legislative authority to make such an award. Both Tupper and Fairview Hospital petitioned this court for review of that decision. We granted these petitions, as well as those in the companion case, Hammer v. Oregon State Penitentiary, 23 Or App 743, 543 P2d 1094 (1975), in order to consider what types of pretermination and post-termination procedures are constitutionally required when a public agency seeks to dismiss a classified employee.

Prior to his dismissal, Tupper had been employed for approximately six years at Fairview Hospital, a state institution for the mentally deficient which is operated by the Mental Health Division of the Department of Human Resources. As a psychiatric aide, Tupper’s duties included the supervision and training of the "residents” living in one of several small, dormitory-like "cottages.” His responsibilities included preparing and maintaining a "program book” in which the progress made by his residents in various training programs was recorded. The record indicates that these program records were essential to the successful operation and continued funding of these programs.

On April 22, 1974, Tupper’s supervisor discovered that Tupper had lost his program book. Tupper agreed to reassemble these records by May 1. When Tupper failed to complete the work by this deadline, he was given until the 24th of May to finish. However, no further progress was made by that date. After four more weeks of remonstrating, Tupper’s supervisor sent him a written warning informing him that if the work was not completed by July 10, "this will be considered insubordination and disciplinary action will follow.”

When July 10 arrived, Tupper had made additional progress, but some of the records still remained incomplete. On July 15, Tupper was suspended for the day and presented with another memo advising him that "further disciplinary measures” would be taken unless the records were completed by the following day. On July 17, more progress had been made, but the work remained unfinished. Tupper was again suspended for the day and ordered to complete the job by the 18th. However, Tupper’s program book remained unchanged on the 18th.

On July 23, 1974, after reviewing Tupper’s situation with his supervisors, the director of the psychiatric aide staff recommended a dismissal. The following day, without first notifying Tupper of the contemplated dismissal and affording him an opportunity to be heard, the superintendent of Fairview suspended Tupper without pay and dismissed him effective August 2, 1974. A letter was then sent to Tupper informing him of this action and detailing the facts relied upon in support of the dismissal.

After his dismissal, Tupper sought a hearing before PERB. The hearing was conducted on December 5, 1974, before a hearings examiner. On January 14, 1975, the hearings examiner issued his "Proposed Findings of Fact, Conclusion of Law, and Order,” which recommended affirming Tupper’s dismissal. Tupper then filed his objections to the proposed order, and, on March 21,1975, the board issued a final order which essentially adopted the proposals of the hearings examiner and upheld the dismissal.

Tupper then sought judicial review of this order in the Court of Appeals. While the Court of Appeals concluded that the hospital violated Tupper’s rights to procedural due process by failing to notify him of his proposed dismissal and offering him an opportunity to be heard, the court also determined that the subsequent PERB hearing supplied the due process previously lacking and held that Tupper was entitled only to an award of back wages for the period between the date of his dismissal and the date of the hearing.

In its petition for review of that decision, Fairview contends that a pretermination hearing is not constitutionally required in every case and that the post-termination hearing conducted by PERB, together with the repeated encouragements, conferences, demands, warnings, etc., was sufficient to satisfy due process requirements in the present situation. Tupper’s petition essentially takes the position that the Court of Appeals was correct in deciding that the hospital violated his due process rights by dismissing him without notice and without an opportunity to be heard, but he contends that the subsequent PERB hearing was not sufficient to remedy this violation. He argues that the PERB hearing is not a de novo proceeding and that a review hearing which accords weight to a procedurally defective initial decision merely perpetuates the original denial of due process. Tupper also argues that even if the Court of Appeals correctly decided that the post-termination hearing was constitutionally adequate, he is then entitled to an award of back pay not merely from August 2, 1974 to December 5, 1974, the date of the hearing, but to March 21, 1975, the date of the board’s final decision. Because of our disposition of this case, we will discuss only the first two of these issues.

The fourteenth amendment to the United States Constitution imposes procedural due process constraints on governmental actions which deprive individuals of significant liberty or property interests. Fairview does not dispute the fact that Tupper had a constitutionally significant "property interest” in his continued employment, and we find that he clearly did. See ORS 240.560; Papadopoulos v. Bd. of Higher Ed., 14 Or App 130, 511 P2d 854, S Ct rev. denied (1973), cert. denied 417 US 919 (1974). See also Arnett v. Kennedy, 416 US 134, 94 S Ct 1633, 40 L Ed 2d 15 (1974); Perry v. Sindermann, 408 US 593, 92 S Ct 2694, 33 L Ed 2d 570 (1972); Board of Regents v. Roth, 408 US 564, 92 S Ct 2701, 33 L Ed 2d 548 (1972). Compare Bishop v. Wood, 426 US 341, 96 S Ct 2074, 48 L Ed2d 684 (1976).

Governmental deprivation of such a property interest must be accompanied by at least minimal procedural protections including some form of notice of the contemplated action and some sort of opportunity to be heard if that action is contested. Arnett v. Kennedy, supra. See also Mathews v. Eldridge, 424 US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976); Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974). The particular form of the notice and hearing required, however, will vary from case to case depending upon the particular circumstances and interests involved. Mathews v. Eldridge, supra; Morrissey v. Brewer, 408 US 471, 92 S Ct 2593, 33 L Ed 2d 484 (1972); Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 US 886, 81 S Ct 1743, 6 L Ed 2d 1230 (1961).

In this case, the dispute centers upon what process is due prior to the initial dismissal and pending subsequent review. The determination of this issue requires an analysis of several factors. As most recently stated by the United States Supreme Court:

"* * * identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra 96 S Ct at 903.

See also Friendly, Some Kind of Hearing, 123 U Pa L Rev 1267, 1278 (1975).

The factors which must be weighed in this case are similar to those considered by the United States Supreme Court in Arnett v. Kennedy, supra. In Arnett the court sustained the validity of the federal pretermination procedures for dismissing an employee for cause. These procedures included notice of the action contemplated, a copy of the charge, reasonable time for filing a written response and supporting affidavits, and an opportunity for an oral appearance upon request. Then, following the dismissal, a full evidentiary hearing was provided. In upholding this procedural scheme, Justice Powell balanced the interest of the individual employee in continued public employment pending an evidentiary hearing against the government’s interest in the expeditious removal of an unsatisfactory employee.¹ Powell noted that the procedures in Arnett "minimize[d] the risk of error in the initial removal decision and provide[d] for compensation for the affected employee should that decision eventually prove wrongful.” 416 US at 170. He then concluded that a full evidentiary hearing need not be provided prior to the employee’s dismissal and that the procedures employed in Arnett provided "a reasonable accommodation of the competing interests.” Id. at 171.²

The corresponding interests of the employee and the government in this case are similar to those in Arnett. The scope of the post-termination hearings is also similar. However, in contrast to the rather extensive pretermination procedures existing in Arnett, under the termination system utilized in this case virtually no procedural safeguards were employed prior to the actual dismissal. Although Tupper was repeatedly counseled and warned that "further disciplinary measures” might be taken, he apparently was never notified that termination was being considered and was never given an opportunity to defend himself before the officials who decided that he should be dismissed. Due to the absence of these important procedural safeguards, the risk of an erroneous deprivation of the employee’s interest in continued employment pending a full evidentiary hearing was substantially greater in this case than it was in Arnett.

Moreover, even the relatively extensive pretermination procedures involved in the Arnett decision were found to be constitutionally adequate by only a fairly narrow margin.³ Therefore, on the basis of Arnett v. Kennedy, supra, and in view of the competing interests involved in these cases, we conclude that in addition to his full post-termination hearing Tupper was entitled to the following procedural safeguards prior to his dismissal. First, he should have been notified of the charges against him. Second, he should have been informed of the kinds of sanctions being considered. Third, he should have been given at least an informal opportunity to refute the charges either orally or in writing before someone who was authorized either to make the final decision or to recommend what final decision should be made.⁴

Since none of these safeguards were provided, we find that the procedures employed did not comply with the due process clause of the fourteenth amendment and that Tupper’s dismissal on August 2, 1974, was invalid. Because his dismissal was invalid, we conclude that Tupper is entitled to an award of back wages and other benefits and that he should continue to receive these amounts until he has been properly terminated.⁵ In determining these amounts, the Board should offset any compensation and other benefits Tupper has received since his original termination.

Reversed and remanded to the Court of Appeals with directions to order the Public Employe Relations Board to issue an order awarding back wages and other benefits until such time as a valid termination has occurred.

1 Several separate opinions were filed in Arnett, none of which commanded the support of a majority of the court at the time. However, both the United States Supreme Court and the lower federal courts have since been following the reasoning of the opinion written by Justice Powell in that case, and we have determined to do so as well. See, e.g., Mathews v. Eldridge, 424 US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976); Boehning v. Indiana State Emp. Ass’n, Inc., 423 US 6, 96 S Ct 168, 46 L Ed 2d 148 (1975); Goss v. Lopez, 419 US 565, 95 S Ct 729, 42 L Ed 2d 725 (1975); Frost v. Weinberger, 515 F2d 57 (2d Cir 1975); Rolles v. Civil Ser. Comm., 512 F2d 1319 (DC Cir 1975); Eley v. Morris, 390 F Supp 913 (ND Ga 1975); Young v. Hutchins, 383 F Supp 1167 (MD Fla 1974).

2 The concurring opinion in this case apparently acknowledges that the due process clause of the federal constitution, as interpreted by the United States Supreme Court in Arnett, does not require a full-scale evidentiary hearing prior to the dismissal of a classified employee. However, that opinion then takes the position that the "due course of law” provision in Article 1, § 10, of the Oregon Constitution should be interpreted to require a full pretermination hearing in such cases. This issue was never raised, briefed or argued by the parties in this case. Moreover, as demonstrated by the cases cited in footnote four of the concurring opinion, the procedural effect of state "due course of law” constitutional provisions is essentially the same as the procedural effect of the due process clause of the fourteenth amendment to the federal constitution. Therefore, in the absence of some compelling public interest in giving Art 1, § 10, of our constitution a broader interpretation in this situation than that given to the due process clause of the fourteenth amendment by the federal courts, we decline to adopt such a construction. Compare State v. Childs, 252 Or 91, 99, 447 P2d 304 (1968) with Deras v. Meyers, 272 Or 47, 64 n.17, 535 P2d 541 (1975). See also Olsen v. State of Oregon, 276 Or 9, 554 P2d 139 (1976); Plummer v. Donald M. Drake Co., 212 Or 430, 320 P2d 245 (1958).

3 Four of the nine Justices dissented, at least in part. Marshall, Douglas and Brennan dissented on the grounds that a full evidentiary hearing was required prior to the dismissal. White concurred in part and dissented in part on the grounds that the pretermination procedures involved in that case were adequate only if an impartial hearings officer made the termination decision.

4 In the interest of avoiding unnecessary controversy, we feel that whenever possible the employee should receive written notice of the charges, of the proposed sanction, and of his right to an informal hearing.

5 The Court of Appeals seems to have concluded that PERB lacked the necessary authority to order an award of back wages upon a finding that the termination was procedurally invalid. Although there is apparently nothing in the authorizing statute which gives PERB the authority to issue such an order on its own, see ORS 240.560, the constitutional nature of the deprivation involved is enough to require this court to direct that such an award be made. Moreover, ORS 240.563 and 183.482 specifically authorize the reviewing court to reverse or remand the agency’s order if it finds "[t]he statute, rule or order to be unconstitutional.” ORS 183.482(8)(b).