Petition — Oregon State Penitentiary v. Hammer

FILED

| T Tre

DEC 11 1978

In the Supreme —

of the Gnited States

OCTOBER TERM, 1978

No @ 87 wv) po >

OREGON STATE PENITENTIARY,

CORRECTIONS DIVISION, DEPARTMENT OF

HUMAN RESOURCES; PUBLIC EMPLOYE

RELATIONS BOARD,

Petitioners,

JERRY HAMMER,

; Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

JAMES A. REDDEN

Attorney General of Oregon

WALTER L. BARRIE

Solicitor General

MARY J. DEITS

Assistant Attorney General

100 State Office Building

Salem, Oregon 97310

Telephone: 503/378-4402

Counsel for Petitioners

—

genes emcee

TABLE OF CONTENTS

Page

ERE a OO TCE OE USO 1

RS EAU et ce ee 2

EE PE AS AO OT 2

sea csinsnpioheisning 4

Reasons for Granting the Writ....................:cccsssccsssseeseeceeseee 10

RES EESSER IEEE CS ee 16

Appendix A: Supplemental Judgment and Mandate

Oregon Court of Appeals (November 7, 1978)........... 19-20

Appendix B: Judgment and Mandate Oregon

Supreme Court (October 23, 1978)..............cccc:ceeeeeeeee 21-22

Appendix C: Opinion of Oregon Supreme Court, 283

Or 369, 583 P2d 1136 (1978) ...................cccccesecerccerees 23-30

Appendix D: Opinion of United States Supreme

2 | TE OTE 31-34

Appendix E: Opinion of Oregon Supreme Court, 276

SP a Re ae BO ITD ons cencncsvsnncsenesaceccesiccseseess 35-38

Appendix F: Oregon Supreme Court Denial of

Petitions for Rehearing (January 11, 1977).............. 39

Appendix G: Judgment and Mandate Oregon Court

of Appeals (January 19, 1977) .............ccccccseseceeseeeeeees 40-41

Appendix H: Opinion of Oregon Supreme Court, 276

gM 42-55

Appendix I: Opinion of Oregon Court of Appeals, 23

Or App 743, 543 P2d 1094 (1975)... eeceeeteeeeee 56-59

Appendix J: Written Notice of Suspension and

Dismissal (Decembér 3, 1974)...............cccccccssceeseseeeees 60-64

i

TABLE OF AUTHORITIES

Cases Cited

Page

Arnett v. Kennedy, 416 US 134, 40 L Ed 2d 1542,

EAE TS NEES aI OO LT CT 11

Dixon v. Love, 431 US 105 (1977)..........::cccceeeeees 7,10, 11, 12

Fairview Hospital v. Stanton, 28 Or App 643, 560 P2d

aaa rh sells ctemadbenstidenschnucuenabiosetes 6

Mathews v. Eldridge, 424 US 319, 47 S Ct 893, 47

acne 11, 12

University of Missouri v. Horowitz, 434 US ——,

98 S Ct 948, 55 L Ed 2d 124 (1978)... cessseeseeseeeeees 12

Statutory Provisions

i aiar acti acid bail debeabdncnaeehennnndidsaiitenninrindaasen 5

Ee a rs a 4

Sa a saad ahapmuvacasbaieamieas 5, 11

SII er ce SS aD ae OO 6

Other Authorities

acre ERE RR Poy «es aOR 2

Oregon State Personnel Rule 81-100 ..............:cccceceseeeseeeeees 13

ii

In the Supreme Court

of the Unite ates

October Term, 1978

No.

OREGON STATE PENITENTIARY,

CORRECTIONS DIVISION, DEPARTMENT OF

HUMAN RESOURCES; PUBLIC EMPLOYE

RELATIONS BOARD,

Petitioners,

JERRY HAMMER,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

Petitioners respectfully pray that a writ of cer-

tiorari issue to review the judgment and opinion of the

Supreme Court of the State of Oregon entered in this

proceeding on September 12, 1978.

OPINIONS BELOW

The Oregon Court of Apeals affirmed the decision

of the Public Employe Relations Board (PERB) that

the dismissal of Jerry Hammer from public employ-

ment at the Oregon State Penitentiary was proper.

The Court of Appeals opinion is reported at 23 Or App

743, 543 P2d 1094 (1975) and is reprinted as Appendix

I hereto.

2

The Oregon Supreme Court reversed and re-

manded the decision of the Court of Appeals. The

Oregon Supreme Court opinion is reprinted at 276 Or

651, 556 P2d 1348 (1976) and is reprinted as Appendix

E hereto.

The United States Supreme:Court granted a writ of

certiorari in this matter, vacated the decision of the

Oregon Supreme Court and remanded the case for

reconsideration. The Supreme Court’s opinion is re-

ported at 434 US 945 (1978) and is reprinted as

Appendix D hereto.

The opinion of the Oregon Supreme Court issued

pursuant to the remand again reversed and remanded

the decision of the Court of Appeals. The Oregon Su-

preme Court decision is reprinted at 283 Or 369, 583

P2d 1136 (1978) and is attached as Appendix C hereto.

JURISDICTION

The judgment of the Supreme Court of the State of

Oregon, the highest state court in Oregon, entered on

September 12, 1978, held that the pretermination

proceedings followed by the State of Oregon in dis-

missing a classified state employee violated the Due

Process Clause of the Fourteenth Amendment of the

United States Constitution. Jurisdiction is invoked

under 28 USC § 1257(3).

QUESTIONS PRESENTED

1. A state public employe has a record of chronic

3

absenteeism, and during the course of several months

his employer counsels him about his absenteeism,

reprimands him about it and warns that if it continues

he could be dismissed. The employe’s absenteeism

continues. The employer then gives him written notice

that he is suspended for 10 days and that at the end of

the 10-day period his dismissal is to be effective. The

notice also contains the facts upon which his dismissal

is based. The decision to dismiss could be withdrawn

during the 10-day suspension period. The employe

then petitions an independent administrative board to

review the employer’s decision to dismiss him, and the

board finds after a trial-type hearing that the

employer had sufficient reason under the law to

dismiss him. As a matter of law, has the termination

procedure followed by the employer afforded the

employe procedural due process under the Fourteenth

Amendment?

2. The highest state court finds that the pretermi-

nation procedure followed by the employer did not

comply with the requirements of procedural due pro-

cess, but finds no error in the post-termination proce-

dure, whereby an independent administrative review

board after a trial-type hearing found that the

employer had sufficient reason under the law to

dismiss the employe. Under such circumstances, does

the Fourteenth Amendment require that the employe

4

be considered still employed and entitled to an award

of back wages?

CONSTITUTIONAL PROVISION INCLUDED

United States Constitution, Fourteenth Amend-

ment:

* _ [N]or shall any state deprive any person of

life, liberty, or property, without due process of

lew: ww.

STATEMENT OF THE CASE

1. General Background

Prior to the dismissal in question, Mr. Hammer

was employed at the Oregon State Penitentiary as a

Corrections Officer. He was a classified employee

under Oregon’s state merit system law. ORS 240.210.

The penitentiary gave Mr. Hammer written notice

(Appendix J) of his suspension for ten days and of his

dismissal, which was to become effective at the end of

the ten-day suspension period. The written notice

stated that his dismissal was based upon his “unfit-

ness to render effective service,” and the notice set out

the facts relied upon by the penitentiary to support its

decision.

The written notice was given in accordance with

Oregon State Personnel Rule 81-100 which provides:

“Notification by Agency The appointing authority

shall notify the employe and the administrator in

writing not later than one regular workday after

the effective date of any suspension and at least 10

ee 8

5

days prior to the effective date of any reduction,

demotion, or dismissal. Such notice shall include

the grounds for the disciplinary action as provided

in ORS 240.555 and the specific charges and facts

supporting the statutory charge. With the consent

of the administrator, the appointing authority may

withdraw, amend, or modify a disciplinary action

after written notice has been filed. In instances

where the reduction, demotion, or dismissal is

amended or modified, the effective date of such

disciplinary action must also be rendered or mod-

ified to meet the ten days’ notice requirement.”

Personnel Rules and Merit System Law (August

1972).

Mr. Hammer appealed his dismissal to the Public

Employe Relations Board! (PERB) in accordance with

ORS 240.560 which provides:

(1) A regular employe who is reduced, dis-

missed, suspended or demoted, shall have the right

to appeal to the board not later than 10 days after

the effective date of such reduction, dismissal,

suspension or demotion. Such appeal shall be in

writing and shall be heard by the board within 30

days after its receipt. The board shall furnish the

division of the service concerned with a copy of the

appeal in advance of the hearing.

(2) The hearing shall be conducted as provided

for a contested case in ORS 183.310 to 183.500.

(3) If the board finds that the action complain-

ed of was taken by the appointing authority for any

political, religious or racia! reasons, or because of

sex, marital status or age, the employe shall be

‘The Public Employe Relations Board has been renamed the Employ-

ment Relations Board. ORS 240.060.

6

reinstated to his position and shall not suffer any

loss in pay. .

(4) In all other cases, if the board finds that the

action was not taken in good faith for cause, it shall

order the immediate reinstatement and the reemp-

loyment of the employe in his position without the

loss of pay. The board in lieu of affirming the

action, may modify it by directing a suspension

without pay for a given period, and a subsequent

restoration to duty, or a demotion in classification,

grade or pay. The findings and order of the board

shall be certified in writing to the appointing

autliority and shall be forthwith put into effect by

the appointing authority.’

After a trial-type hearing, PERB upheld Mr. Ham-

mer’s dismissal. He then sought judicial review of

PERB’s decision by the Oregon Court of Appeals. ORS

240.563. The Oregon Court of Appeals affirmed

PERB’s decision, and both the penitentiary and Mr.

Hammer sought review of the Court of Appeals’

decision by the Oregon Supreme Court. The Oregon

Supreme Court granted review, and reversed and

remanded.

This Court granted a writ of certiorari in this case,

vacated the decision of the Oregon Supreme Court and

2There is some confusion as to the scope of review exercised by PERB in

a. Mr. Hammer's dismissal. As noted in a case decided = _

Hammer's hearing before PERB, Fairview Hospital v. Stanton, 28 App

643, 647, 560 P2d 667 (1977), prior to the Stanton decision. Although re re

were implications that PERB should conduct a de novo type review, sve

independent findings of fact, there was also language in Oregon a w -

impliedly limited PERB's scope of review. Fairview Hospital v. —.

Supra, p Bor established that PERB is“. . . the primary fact finder, tha ~

the tribunal before which all parties have the opportunity to present an

rebut evidence .. .” Fairview Hospital v. Stanton, supra, at 649.

7

remanded the case for reconsideration in light of

Dixon v. Love, 431 US 105 (1977). The Oregon

Supreme Court again reversed and remanded.

2. Facts Material to the Questions Presented

The statement of the facts contained in the Oregon

Supreme Court’s opinion is an adequate summary of

the facts.

“, . . The record indicates that Hammer had a

record of diabetes and hypertension as well as a

sciatic nerve injury which he had received in

Vietnam and which had resulted in a 60 per cent

disability adjustment from the Veterans Adminis-

tration. As a result of these problems, as well as a

back injury which he suffered on the job, Hammer

was frequently absent from work. While there was

no evidence of malingering, PERB found that even

excluding the absences due to his work related

injury, Hammer was absent 143% hours in 1973

and 169 hours in 1974 in addition to all regular

sick leave. PERB also found that employee absen-

teeism at the penitentiary and that Hammer’s

attendance record was worse than that of any of

the other corrections officers.

“On January 14, 1974, after several previous

counseling sessions, Hammer received a written

reprimand which outlined his absence record and

indicated that unless his record improved he would

be subject to further disciplinary actions up to and

including discharge. When his absences continued,

on April 23, 1974, he was again reprimanded and

cautioned that he could be subject to further

disciplinary action unless his performance im-

proved. On October 21, 1974 he was again coun-

seled about his use of sick time. After Hammer

8

missed five more days in October and November,

Hammer was notified on December 3, 1974, that he

was suspended for 10 days without pay and then

discharged effective December 16, 1974.

“At Hammer’s request, a post-termination hear-

ing was held on January 22 and 23, 1974, before a

hearings examiner from PERB, and on June 6,

1975, the Board issued an order upholding Ham-

mer’s dismissal. Hammer then sought judicial

review of this order in the Court of Appeals.”

3. Manner in Which Federal Question was Raised

The federal question was originally raised by Mr.

Hammer by motion before PERB:

“Appellant, Jerry Hammer, moves for an order

granting his reinstatement with full back pay for

the reason that said appellant’s suspension and

discharge violated his right to due process of law

under the Fourteenth Amendment of the United

States Constitution by denying him pre-

termination notice of charges, a pre-termination

opportunity to appear before the appointing au-

thority, present oral or written arguments, or

evidence of affidavits.” (PERB Rec, Item 6 at 11).

PERB denied Mr. Hammer’s motion:

“Appellant’s motion for an order of the Board

granting him reinstatement with full back pay, for

the reason that said Appellant’s suspension and

discharge violated his right to due process of law

under the Fourteenth Amendment .. . was properly

denied... .” (PERB Rec, Item 11 at 45).

The question thus raised was preserved in the

review of PERB’s decision by the Oregon Court of

9

Appeals. Among the grounds upon which Mr. Hammer

sought judicial review was that:

‘(3) petitioner was not accorded a pre-

termination notice of charges and a pre-

termination opportunity to appear before the ap-

pointing authority and present oral or written

evidence or affidavits in violation of his due pro-

cess rights under the Fourteenth Amendment of

the United States Constitution.” (PERB Rec, Item

12 at 51-52).

In his brief to the Oregon Court of Appeals, Mr.

Hammer assigned as error:

“IIT. ORS 240.555, ORS 240.560 AND PER-

SONNEL DIVISION RULE 81-100 ARE UNCON-

STITUTIONAL ON THEIR FACE AND AS AP-

PLIED UNDER THE DUE PROCESS CLAUSE

OF THE UNITED STATES CONSTITUTION FOR

FAILURE TO PROVIDE PROCEDURAL DUE

PROCESS.” (Petitioner’s Br at 8).

In its decision the Oregon Court of Appeals found

that the Fourteenth Amendment required a pre-

termination trial-type hearing, and therefore found

that Mr. Hammer had been dismissed without due

process. However, the Oregon Court of Appeals fur-

ther found that due process was ultimately complied

with by the post-termination trial-type hearing before

PERB.

Both the penitentiary and Mr. Hammer sought

review of the Oregon Court of Appeals’ decision. The

penitentiary sought review on the basis that:

“The Court of Appeals erred in holding . . . that

10

due process requires a pre-termination evidentiary

hearing before a member of the state classified

service may be discharged. . . .” (Respondent’s Pet

for Rev at 1).

The Oregon Supreme Court granted review, and

reversed the Oregon Court of Appeals’ decision. The

Oregon Supreme Court held that the pretermination

procedure followed by the penitentiary did not comply

with the due process requirements of the Fourteenth

Amendment of the United States Constitution. Upon

remand from this court the Oregon Supreme Court

again held that the pretermination procedure did not

comply with the Fourteenth Amendment.

The federal question herein presented has thus

been properly raised and appropriately preserved at

all stages of this case.

REASONS FOR GRANTING THE WRIT

A. The Oregon Supreme Court has decided a federal

question of substance not in accordance with the

reasoning of this Court.

On remand from this Court for reconsideration in

light of Dixon v. Love, 431 US 105 (1977), the Oregon

Supreme Court again determined that Mr. Hammer’s

dismissal was in violation of the Fourteenth Amend-

ment to the United States Constitution. The decision

of the Oregon Supreme Court is not in accordance with

11

the principles relating to due process elaborated.

Dixon v. Love, supra.

The analysis by this Court in Dixon v. Love, supra,

of the extent to which due process requires an eviden-

tiary hearing prior to the revocation of a driver's

license, was based on the factors considered by this

Court in Mathews v. Eldridge, 424 US 319, 335, 47 SCt

893, 47 LEd 2d 18 (1976):

“(I]dentification 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 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 procedur-

al requirement would entail.”

The private interest affected by this decision is the

right to continued employment. Ag noted by this Court

in Arnett v. Kennedy, 416 US 134, 40 L Ed 2d 1542, 94

S Ct 1633 (1974) the injury to an employee who is

terminated pending an evidentiary hearing consists of

a temporary interruption of his employment. In the

present case, in accordance with ORS 240.560, Mr.

Hammer was entitled to a full evidentiary hearing

before PERB within 30 days after receipt of his appeal

to PERB. In the event Mr. Hammer’s dismissal was

12

found improper by PERB he could be reinstated and

awarded back pay.

The risk of erroneous deprivation through the

procedures used in this case is minimal. The employer

in this case needed to determine the amount of

absenteeism and whether this absenteeism made the

employee “unfit to render effective service”.

The nature of the inquiry by the employer is

analagous to the nature of the relevant inquiry in the

administrative process in Dixon v. Love, supra; Math-

ews v. Eldridge, supra; and University of Missouri v.

Horowitz, 434 US ——, 98 S Ct 948, 55 L Ed 2d 124

(1978). In all of the above cases the nature of the

inquiry related to the documentation of limited facts.

This Court found in each of the above cases that the

risk of error was minimal and the potential value of an

evidentiary hearing was not great.

In the present case the inquiry was limited to the

number of days Mr. Hammer was absent from work.

The value of a hearing prior to the effective date of his

termination was limited. Further, Mr. Hammer was

given notice of his termination and the facts support-

ing the employer’s decision to terminate him, ten days

prior to the effective date of the termination. During

this time he could have notified the penitentiary of

13

any errors. The Personnel Rules permit an employer

to:

ee

. . withdraw, amend or modify a disciplinary

action after written notice ...” Oregon State

Personnel Rule 81-100.

Finally, although the Oregon Supreme Court de-

termined there was no “substantial public interest” in

Mr. Hammer’s termination, the nature of the govern-

mental interest affected by this decision is significant.

As noted by this Court in Arnett v. Kennedy, supra, in

discussing the government’s interest in employee

terminations:

“, , . the Government’s interest, and hence the

public’s interest, is the maintenance of employee

efficiency and discipline. Such factors are essential

if the Government is to perform its responsibilities

effectively and economically. To this end, the

Government, as an employer, must have wide

discretion and control over the management of its

personnel and internal affairs. This includes the

prerogative to remove employees whose conduct

hinders efficient operation and to do so with

dispatch. Prolonged retention of a disruptive or

otherwise unsatisfactory employee can adversely

affect discipline and morale in the work place,

foster disharmony, and ultimately impair the effi-

ciency of an office or agency. Moreover, a require-

ment of a prior evidentiary hearing would impose

additional administrative costs, create delay, and

deter warranted discharges. Thus, the Govern-

ment’s interest in being able to act expeditiously to

remove an unsatisfactory employee is substantial.”

Arnett v. Kennedy, supra, at 168.

14

In the present case, the Government’s interest also

includes an interest in public safety since the agency

operates a maximum security prison.

The issue presented by this case, the necessary

procedures to be utilized by public employers in

making decisions affecting the rights of its employees,

is a question of substantial significance. The clarifica-

tion of the protections afforded to public employees by

the Fourteenth Amendment would promote the effi-

cient operation of all levels of government, insure the

consistent application to all public employees of the

protections of the Due Process Clause of the Four-

teenth Amendment and avoid needless litigation.

B. The Oregon Supreme Court has decided a federal

question of substance not heretofore determined by

this Court.

The Oregon Supreme Court held that the pretermi-

nation procedure followed by the penitentiary was not

in accordance with the requirements of the Due

Process Clause of the Fourteenth Amendment. The

court found that because of the violation of the

Fourteenth Amendment, Mr. Hammer was still

employed and entitled to back wages until the time he

was properly terminated.® The Oregon court found no

error in the post-termination, trial-type hearing be-

m M4 agreement of the parties, Mr. Hammer resigned effective December

15

fore PERB. Yet, the Oregon court failed to find that

the post-termination hearing cured any procedural

errors which occurred in the pretermination proce-

dure. Nothing in any of this Court’s cases suggests

such an expansive interpretation of the Fourteenth

Amendment.

Such an expansion of the Fourteenth Amendment

is unwarranted. The reason for procedural due process

during the pretermination period is to minimize the

risk of error in the empioyer’s decision to terminate

the employee, so as to protect the employees interest

during the interim period between the decision to

terminate and the post-termination hearing. However,

once PERB decided after a trial-type hearing that Mr.

Hammer’s termination was proper, any error in the

pretermination was cured.

16

CONCLUSION

The Oregon Supreme Court’s decision conflicts

with the reasoning of this Court and incorrectly

expands the breadth of the Fourteenth Amendment.

Therefore, for the above reasons, a writ of certiorari

should issue to review the decision of the Oregon

Supreme Court.

Respectfully submitted,

JAMES A. REDDEN

Attorney General of Oregon

WALTER L. BARRIE

Solicitor General

MARY J. DEITS

Assistant Attorney General

Counsel for Petitioners

mlm

APPENDICES

19

Appendix A

STATE OF OREGON

COURT OF APPEALS

JERRY HAMMER, Aespondent—Cross-Petitioner,

v

OREGON STATE PENITENTIARY, CORRECTIONS

DIVISION, OREGON STATE DEPARTMENT OF

HUMAN RESOURCES; PUBLIC EMPLOYE

RELATIONS BOARD, Petitioners.

(No. SC 25640, CA 4900)

Supplemental Judgment and Mandate.

Judicial Review from Public Employe Relations

Board.

The Conclusions of Law and Ultimate Facts and

Order rendered by the Public Employe Relations

Board against petitioner in this cause having been

affirmed by the Court of Appeals on December 29,

1975, and the Oregon Supreme Court having consid-

ered the issues on review and having reversed the

decision of the Court of Appeals and remanded to said

court with directions to remand below in accordance

with the opinion and order of the Supreme Court

rendered November 18, 1976.

The cause subsequently having been taken to the

Supreme Court of the United States upon petition for

writ of certiorari by the Oregon State Penitentiary,

and the United States Supreme Court having issued

on December 14, 1977, its mandate to the Oregon

20

Supreme Court remanding the cause for reconsidera-

tion in light of Dixon v. Love, 431 US 105 (1977),

The cause subsequently having been heard on

remand by the Oregon Supreme Court from the

United States Supreme Court and having been rear-

gued and resubmitted and reconsidered and the Ore-

gon Supreme Court having issued on October 23, 1978,

its mandate to the Oregon Court of Appeals reversing

and remanding the cause to said court with directions

to order the Public Employe Relations Board to issue

an order in conformance with the Supreme Court

opinion rendered September 12, 1978, and the original

decision of that Court, Hammer v. Oregon State

Penitentiary, 276 US 651 (1976),

NOW, THEREFORE, IT IS ADJUDGED and

ORDERED that the decision entered below is reversed

and the cause remanded to the Public Employe Rela-

tions Board with directions to issue an order in

conformance with the Supreme Court opinion issued

September 12, 1978, and with the original decision of

that court, Hammer v. Oregon State Penitentiary, 276

Or 651 (1976).

ISSUED at Salem, Oregon: Nov. 7, 1978.

21

Appendix B

STATE OF OREGON

SUPREME COURT

JERRY HAMMER, Respondent—Cross-Petitioner,

v,

OREGON STATE PENITENTIARY, CORRECTIONS

DIVISION, OREGON STATE DEPARTMENT OF

HUMAN RESOURCES; PUBLIC EMPLOYE

RELATIONS BOARD, Petitioners.

(SC 25640, CA 4900)

Judgment and Mandate.

Judicial Review from Public Employe Relations

Board.

The Conclusions of Law and Ultimate Facts and

Order rendered by the Public Employe Relations

Board against petitioner in this cause having been

affirmed by the Court of Appeals on December 29,

1975, and this Court having considered the issues on

review and having reversed the decision of the Court

of Appeals and remanded to said court with directions

to remand the case below in accordance with the

opinion and order of the Court rendered November 18,

1976.

The cause subsequently having been taken to the

Supreme Court of the United States upon petition for

writ of certiorari by the Oregon State Penitentiary,

and the United States Supreme Court having issued

on December 14, 1977, its mandate to the Oregon

22

Supreme Court remanding the cause for reconsidera-

tion in light of Dixon v, Love, 431 US 105 (1977).

NOW THEREFORE this cause having been heard

on remand by the Oregon Supreme Court from the

United States Supreme Court and having been re-

argued and resubmitted and reconsidered;

IT IS HEREBY ADJUDGED and ORDEREDD

that the decision of the Court of Appeals rendered

December 29, 1975, is reversed and the cause re-

manded to said court with directions to order the

Public Employe Relations Board to issue an order in

conformance with this opinion rendered September 12,

1978, and the original decision of this Court, Hammer

v. Oregon State Penitentiary, 276 Or 651 (1976).

ISSUED at Salem, Oregon, this twenty-third day of

October 1978.

23

Appendix C

IN THE SUPREME COURT OF THE

STATE OF OREGON

JERRY HAMMER, Respondent—Cross-Petitioner,

v.

OREGON STATE PENITENTIARY, CORRECTIONS

DIVISION, OREGON STATE DEPARTMENT OF

HUMAN RESOURCES; PUBLIC EMPLOYE

RELATIONS BOARD, Petitioners.

(CA 4900, SC 25640)

On Remand from the United State Supreme

Court."

Reargued and submitted April 3, 1978,

John W. Burgess, Assistant Attorney General,

Salem, argued the cause for petitioners. With him on

the brief were James A. Redden, Attorney General,

and Al J. Laue, Solicitor General, Salem.

Henry H. Drummonds, of Kulongoski, Heid,

Durham & Drummonds, Eugene, argued the cause

and filed a brief for respondent/cross-petitioner.

Before Denecke, Chief Justice, and Tongue, How-

ell, Bryson, Lent and Linde, Justices.

HOWELL, J.

Reversed and remanded.

*434 US 945, 98 S Ct 469, 54 L Ed 2d 306 (1977),

24

HOWELL, J.

This is an action challenging the constitutionality

of procedures employed by the Oregon State Peniten-

tiary in terminating plaintiff Hammer’s employment

as a corrections officer. In Hammer v. Oregon State

Penitentiary, 276 Or 651, 556 P2d 1348 (1976)

(hereinafter referred to as Hammer /), this court held

that Hammer’s dismissal was in violation of the due

process clause of the fourteenth amendment to the

United States Constitution because plaintiff was not

given a pretermination notice of the charges against

him nor an opportunity to rebut the charges. The

United States Supreme Court granted the Peniten-

tiary’s writ of certiorari, vacated our judgment, and

remanded the case to us for reconsideration in light of

its recent decision in Dixon v. Love, 431 US 105, 97S

Ct 1723, 52 L Ed 2d 172 (1977). Oregon State Peniten-

tiary v. Hammer, 434 US 945, 98 S Ct 469, 54 L Ed

306 (1977).

Because a complete statement of the facts can be

found in our earlier decision, only a brief recital will

be given here. Hammer was hired as a classified

employee in January, 1972. During the next two

'Mr. Justice Stevens dissented from the summary remand and was

joined by Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice

Marshall. The dissenters argued that whatever the merits of our decision in

Hammer /, it was not affected by Dixon v. Love, 431 US 105, 97 S Ct 1723, 52

L Ed 2d 172. Oregon State Penitentiary v. Hammer, 434 US 945, 98 S Ct 469,

54 L Ed 2d 306 (1977).

25

years, a series of medical problems caused him to be

absent frequently from his job. In January, 1974,

Hammer received a written reprimand from the

Penitentiary and a warning that continued absen-

teeism could result in disciplinary action up to and

including discharge. The absences continued, and in

April, 1974, a second reprimand was issued. Finally,

on December 3, 1974, Hammer was notified that he

was suspended for 10 days without pay, and he was

discharged effective December 16, 1974.

Hammer sought and obtained review of his dis-

missal before a hearings examiner from the Public

Employe Relations Board. The Board upheld the

dismissal, and Hammer sought judicial review. The

Court of Appeals held that the procedures employed by

the Penitentiary violated the due process clause of the

fourteenth amendment to the United States Constitu-

tion. Hammer v. Oregon State Penitentiary, 23 Or App

743, 543 P2d 1094 (1975). This court agreed with the

Court of Appeals but modified the remedy, holding

that Hammer was entitled to an award of back pay

and other benefits until he was dismissed properly.”

Subsequent to our decision in Hammer J the

2Since the Dixon case dealt only with the substantive question of

whether a hearing was in fact Den | and not with the issue of remedies,

we see no reason to reconsider the propriety of the remedy we granted in

Hammer J, i.e., that Hammer is entitled to back pay up until the time he was

properly terminated. By agreement of the parties, Hammer resigned effec-

tive December 15, 1976.

Pi

26

United States Supreme Court decided Dixon v. Love,

supra. Dixon involved an Illinois statute that au-

thorized the Secretary of State to suspend or revoke a

driver’s license without preliminary hearing upon a

showing that the driver had been repeatedly convicted

of traffic offenses. Pursuant to this statute, the Secre-

tary promulgated a rule that provided for automatic

revocation if a driver’s license was suspended three

times within a 10-year period. Plaintiff’s license was

revoked under this regulation.

Plaintiff challenged the constitutionality of the

Illinois statute in federal court, alleging that due

process required a pre-revocation hearing to deter-

mine whether he fell within the statutory criteria. A

three-judge district court upheld plaintiff’s claim, but

the United States Supreme Court reversed, holding

that in light of the competing interests involved due

process did not require a hearing prior to the license

revocation.

We have reconsidered our decision in Hammer Jin

light of the Dixon case and conclude that the adminis-

trative action in Dixon differs significantly from the

action that occurred in Hammer J Our conclusion is

based on an application of the three-pronged analysis

used by the Court in Mathews v. Eldridge, 424 US 319,

96 S Ct 893, 47 L Ed 2d 18 (1976):

‘* * * [T]dentification of the specific dictates of

27

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 inter-

est through the procedures used, and 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.

** *” Id. at 335, 96 S Ct at 903, 47 L Ed 2d at 33.

In Dixon the private interest was “the granted

license to operate a motor vehicle.” 431 US at 113,97S

Ct at 1728, 52 L Ed 2d at 180. The Court found this

interest to be important but not as important, for

example, as welfare payments “on which the recipient

may depend for his very subsistence.” /d. Analogizing

to the present case, it is not unreasonable to assume

that the plaintiff was dependent upon his continued

employment “for his very subsistence,” and to con-

clude that his employment interest should be given

some procedural safeguards. On a continuum, placing

a driver’s license and other “privileges” at one end and

welfare payments and other “necessities” at the other

end, employment seems to us to be closer to the

“necessity” end of the continuum.®? See Arnett v.

‘It is worth noting that in Dixon the Court was impressed by the fact

that special provisions were made under I]linois law for holders of commer-

cial licenses. In effect, license revocations that might affect one’s livelihood

were treated differently than ordinary revocations.

(Continued on following page’

a ea ee Se a

28

Kennedy, 416 US 134, 94 S Ct 1633, 1670, 40 L Ed 2d

15, 67 (1974) (Marshall, J., dissenting).

The second factor listed in Mathews, the risk of

error arising out of the procedures used, provides an

even stronger basis on which to distinguish the

present case from Dixon. As noted above, the license

revocation in Dixon was automatic once three suspen-

sions had occurred. Consequently, “* * * requiring

additional procedures would be unlikely to have sig-

nificant value in reducing the number of erroneous

deprivations.” 431 US at 114, 97 S Ct at 1728, 52 LEd

2d at 181. On the contrary, the decision in the present

case was not automatic. Instead, it was necessary to

consider a variety of factors, including the reasons for

Hammer’s absenteeism, the Penitentiary’s ability to

accommodate his absences, and the possibility that the

absenteeism might be eliminated in the future. Par-

ticularly with respect to the third factor, we believe

that Hammer should have been afforded an informal

opportunity to respond to the charges prior to his

dismissal. The counseling and reprimands that

(Continued from previous page)

This discussion of the relative weight of private interest has overtones of

the old ‘ aM ya a " distinction that the United States Supreme Court

purportedly now has discarded. Board of Regenis v. Roth, 408 US 564, 92S Ct

2701, 33 i Ed 2d 548 (1972). An analysis of that Court’s recent decisions,

however, indicates that the distinction may still be relevant “albeit in

somewhat different verbal garb.” Arnett v. Kennedy, 416 US 134, 211, 94S Ct

1633, 1672, 40 L Ed 2d 15, 556 (1974) (Marshall, J., dissenting). See Dixon v.

Love, supra n. 1.

29

occurred during the previous 12 months were insuffi-

cient to satisfy the requirements of due process.

Finally, there was no “substantial public interest”

in the summary termination of Hammer’s employ-

ment comparable to the public interest in highway

safety that compelled the summary license revocation

in Dixon. Hammer’s performance as a corrections

officer was not under attack, only his absenteeism. To

allow him an informal opportunity to respond to the

charges against him prior to his termination would

have posed no substantial threat to prison security.

For these reasons, we must agree with the plaintiff

that a careful analysis of the factors present in Dixon

actually supports our holding in Hammer J, rather

than contradicts it. Had Hammer’s superiors estab-

lished a specific limit on absenteeism, beyon¢ which

additional absences would lead to automatic dismissal,

this case would be must closer to Dixon.

We emphasize again that we do not hold that due

process requires an evidentiary hearing prior to

employment termination in cases such as this. We

merely hold that Hammer was entitled to notice of the

charges against him, the kind of sanctions being

considered, and an opportunity to respond to the

charges prior to his dismissal. In our view, such a

30

requirement will impose a minimal burden on the

state.*.

As previously ordered, the Court of Appeals is

directed to order the Public Employe Relations Board

to issue an order in conformance with this opinion and

the original decision of this court, Hammer v. Oregon

State Penitentiary, supra 276 Or 651.

Plaintiff's request for attorney fees is denied for

lack of statutory authority.

Reversed and remanded.

‘In its brief on remand, the defendant also argues that a reversal of

Hammer [is required by Board of Curators of the University of Missouri v.

Horowitz, 434 US ——, 98 S Ct 948, 55 L Ed 2d 124 (1978). In that case, the

Court held that academic evaluations and dismissals based upon such

evaluations are not subject to the same due process requirements as those

controlling disciplinary proceedings. From this, defendant argues that

decisions concerning “competency” in employment are governed by a differ-

ent standard than decisions concerning “misconduct.” Even if we assume that

the Penitentiary’s evaluation of Hammer's work is analogous to the Univer-

sity of Missouri’s evaluation of Horowitz’s academic performance, the fact

remains that Hammer was afforded even less procedural protection in his

case than was Horowitz. Horowitz was given an opportunity to “appeal” the

University’s decision not to let her graduate by performing clinical work

before a group of practicing physicians. 434 US ——, 98 S Ct at 950, 55 L Ed

2d at 129. Conversely, Hammer was given no opportunity to present his case

prior to the time the termination decision was made. As we have already

noted, we do not consider the counseling and reprimands that Hammer

received mage | the months preceding his termination to be adequate

— of the due process requirements of notice and opportunity to be

eard.

31

Appendix D

SUPREME COURT OF THE UNITED STATES

OREGON STATE PENITENTIARY, ET AL. v.

JERRY HAMMER

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT

OF OREGON

No. 76-1377. Decided November 14, 1977

The petition for a writ of certiorari is granted; the

judgment of the Supreme Court of the State of Oregon

is vacated, and the case is remanded to that court for

reconsideration in the light of Dixon v. Love, 431 US.

105 (1977).

Mk. JUSTICE STEVENS, with whom MR. JUSTICE BREN-

NAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL

join, dissenting.

Since Dixon v. Love, 431 U.S. 105, sheds no light on

the issues decided by the Oregon Supreme Court, the

Court’s disposition of this petition can only be charac-

terized as cavalier.

The respondent, a tenured corrections officer, was

discharged without a pretermination hearing; at a

post-termination hearing the Public Employee Rela-

tions Board decided that the dismissal was proper as a

matter of state law. On appeal, the Oregon Supreme

Court reversed. Relying on its decision in Tupper v.

Fairview Hospital and Training Center, 276 Ore. 657,

556 P. 2d 1340 (1976), the court concluded that

32

procedural due process required that a tenured

employee receive notice of the charges against him

and the proposed sanction, as well as an opportunity to

respond, before being discharged. It further held that

respondent was entitled to backpay and other benefits

from the time of his discharge until such time as a

proper termination hearing is held, even though the

discharge had been upheld at the post-termination

hearing.'.

No decision of this Court is controlling on either

the due process issue or the remedy issue decided by

the Oregon Supreme Court. In Dixon v. Love, supra,

this Court held that the Illinois regulation providing

for the automatic suspension of the license of a driver

who had been convicted repeatedly for traffic offenses

was constitutionally valid. In so holding, the Court

relied on the fact that the driver “had the opportunity

for a full judicial hearing in connection with each of

the traffic convictions cn which the Secretary’s deci-

sion was based,” 430 U. S. 105, 113, on the fact that

the suspension and revocation decisions were “largely

automatic” under the Illinois regulations, /d., at 113,

and on “the important public interest in safety on the

roads and highways, and in the prompt removal of a

‘The Oregon Court of Appeals had held that pr me gee was entitled toa

pretermination hearing, but it limited the award of back wages to the period

between the date of his dismissal and the date of his subsequent hearing. 23

Ore. App. 743, 543 P.2d 1094 (1075).

33

safety hazard.” J/d., at 114. None of those factors,

decisive in Dixon, has any relevance to the issues

decided by the Oregon Supreme Court in this case.

Indeed, in Dixon the premise for the Court’s legal

analysis was “ ‘that something less than an eviden-

tiary hearing is sufficient prior to adverse administra-

tive action,.’” /d., at 113, quoting Mathews v. El-

dridge, 424 U.S. 319, 343. Precisely the same premise

provided the basis for the legal analysis of the Oregon

Supreme Court. The court held that a pretermination

evidentiary hearing was not required, but that “some-

thing less” was necessary—in this case, fair notice and

an opportunity to respond. Whether or not that hold-

ing is correct, it is not even arguably inconsistent with

either the holding or anything said by this Court in

Dixon. Nor is there anything in Dixon which remotely

relates to the question whether the remedy directed by

the Oregon Supreme Court was proper.

In my judgment, even assuming that the Oregon

Supreme Court has extended greater procedural pro-

tection to Oregon residents than the Federal Constitu-

tion requires, there is no need for this Court to address

those issues until a conflict with the Oregon holding

has developed on a national level. But if my judgment

in this respect is incorrect, and enlightenment on a

nationwide basis is indeed appropriate, surely the

Court should provide something more edifying than a

34

cryptic reference to a case as wide of the mark as

Dixon v. Love. This summary treatment of a carefully

reasoned decision of the highest court of the State of

Oregon fails to accord proper respect to that tribunal

and gives no guidance whatsoever for further proceed-

ings in this litigation. Cf. United States v. Jacobs, 429

U. S. 909-910 (STEVENS, J., concurring).”

I respectfully dissent.

* Although four of us disagree with the Court's disposition of this case,

the Justices who join this opinion do not insist that the case be orally argued.

See 7rinkler v. Alabama, 418 U. S. 917, 918.

35

Appendix E

No. 247—November 18, 1976

IN THE SUPREME COURT OF THE

STATE OF OREGON

In Banc

HAMMER, Aespondent—Cross-Petitioner,

v.

OREGON STATE PENITENTIARY et al, Petitioners.

On review from the Court of Appeals.”

Argued and submitted June 7, 1976.

W. Michael Gillette, Solicitor General, Salem,

argued the cause for petitioners. Also on the briefs

were Lee Johnson, Attorney General, and John W.

mg and Al J. Laue, Assistant Attorneys General,

em.

Henry H. Drummonds of Kulongoski, Heid,

Durham & Drummonds, Eugene, argued the cause and

filed briefs for respondent/cross-petitioner.

Reversed and remanded.

HOWELL, J.

*Review of order of Public Employe Relations Board, 23 Or App 743,

543 P2d 1094 (1975).

36

HOWELL, J.

This is a review of a decision of the Court of

Appeals, 75 Adv Sh 4513, 23 Or App 743, 543 P2d 1094

(1975), which upheld the Public Employe Relations

Board’s (PERB) decision affirming Hammer's dismis-

sal from public employment at the Oregon State

Penitentiary. As in the companion case, 7upper uv.

Fairview Hospital and Training Center, decided today,

276 Or 657, —— P2d —— (1976), the primary issue in

this case involves the constitutional adequacy of the

pretermination procedures followed by the state in

dismissing a classified employee. The Court of Appeals

held that the procedures employed violated the due

process clause of the fourteenth amendment to the

United States Constitution and concluded that Ham-

mer was therefore entitled to an award of back wages

for the period subsequent to his dismissal, but prior to

the PERB hearing. Both the State Penitentiary and

porns have petitioned this court for a review of that

ecision.

Prior to the dismissal in question, Hammer was

employed by the Oregon State Penitentiary as a

corrections officer. Hammer was hired in January

1972 as a classified employee. The record indicates

that Hammer had a record of diabetes and hyperten-

sion as well as a sciatic nerve injury which he had

received in Vietnam and which had resulted in a 60

per cent disability adjustment from the Veterans

Administration. As a result of these problems, as well

as a back injury which he suffered on the job, Hammer

was frequently absent from work. While there was no

evidence of malingering, PERB found that even

excluding the absences due to his work related injury,

Hammer was absent 143% hours in 1973 and 169

hours in 1974 in addition to all regular sick leave.

PERB also found that employee absenteeism created

serious staffing and scheduling problems at the

penitentiary and that Hammer's attendance record

ws worse than that of any of the other corrections

officers.

37

On January 14, 1974, after several previous coun-

seling sessions, Hammer received a written reprimand

which outlined his absence record and indicated that

unless his record improved he would be subject to

further disciplinary actions up to and including dis-

charge. When his absences continued, on April 23,

1974, he was again reprimanded and cautioned that he

could be subject to further disciplinary action unless

his performance improved. On October 21, 1974 he

was again counseled about his use of sick time. After

Hammer missed five more days in October and

November, Hammer was notified on December 3,

1974, that he was suspended for 10 days without pay

and then discharged effective December 16, 1974.

At Hammer’s request, a post-termination hearing

was held on January 22 and 23, 1974, before a

hearings examiner from PERB, and on June 6, 1975,

the Board issued an order upholding Hammer’s dis-

missal. Hammer then sought judicial review of this

order in the Court of Appeals.

The State Penitentiary contends that the Court of

Appeals erred in holding that procedural due process

requires a pretermination evidentiary hearing prior to

the dismissal of a classified employee. The state

argues that a post-termination hearing is sufficient so

long as the employee receives notice that certain

conduct could subject him to discharge, and he is given

some informal opportunity to respond.

This issue is controlled by Tupper v. Fairview

Hospital, supra, which holds that prior to his dismis-

sal, a classified state employee must be notified of the

charges against him as well as the proposed sanction,

and he must also be given an opportunity to respond.

See also Arnett v. Kennedy, 416 US 134, 94 S Ct 1633,

40 L Ed 2d 15 (1974).

The record indicates that Hammer was repeatedly

counseled over a period of several months about

excessive absences and the possible consequences.

38

Howeve:., there is no evidence that Hammer was

notified prior to his termination that he was being

charged with a continuation of these excessive

absences, and that, as a result, the state was consider-

ing dismissal. Nor is there any evidence that Hammer

was ever provided with an opportunity to rebut these

charges and contest the proposed sanction prior to his

termination. Therefore, we conclude that the proce-

dures employed by the state in dismissing Hammer

were constitutionally inadequate and that his termi-

nation on December 16, 1974, was invalid. Conse-

quently, as in Tupper, we hold that Hammer is entitled

to an award of back wages and other benefits, and that

he should continue to receive these amounts until he is

properly terminated.’ In determining these amounts,

the Board should offset any compensation and other

benefits Hammer has received since his original ter-

mination.

The Court of Appeals is directed to order the Public

Employe Relations Board to issue an order in conform-

ance with this opinion.

Reversed and remanded.

O’CONNELL, J., specially concurring.

I specially concur for the reasons stated in my

separate opinion in Jupper v. Fairview Hospital,

ecided this day.

‘There is one remaining legal issue in this case which was not before us

in Tupper. Hammer contends that even a prolonged history of chronic

absenteeism because of medical problems would be insufficient to establish

the statutory “unfitness to render effective service,” ORS 240.555, unless

medical evidence of a continuing disability is also presented. We disagree.

If, on remand, Hammer is again terminated, we believe that a finding of

continued, persistent and unpredictable absenteeism over a period of

several years would be sufficient to support a conclusion that the employee

was not fit to render effective service.

39

Appendix F

OREGON SUPREME COURT

January 11, 1977

TUPPER V. FAIRVIEW HOSPITAL

CA 4449

HAMMER V. OREGON STATE PENITENTIARY

CA 4900

John W. Burgess

Assistant Attorney General

’

The Supreme Court has today denied respondents

Petitions for Rehearing in the above-entitled cases.

ec—Henry H. Drummonds

Kulongoski, Heid, Durham & Drummonds

STATE COURT

ADMINISTRATOR

By /s/ Marilyn Hartley

Calendar Clerk

40

Appendix G

STATE OF OREGON

COURT OF APPEALS

JERRY HAMMER, )

)

Petitioner, ) JUDGMENT

) AND

v. ) MANDATE

)

OREGON STATE ) JUDICIAL

PENITENTIARY, ) REVIEW

Corrections Division; Oregon )

State Department of Human ) CA 4900

Resources; PUBLIC EMPLOYE )

RELATIONS BOARD, )

)

Respondents. )

This cause having come on to be heard on appeal

and the court having found there was not error as

alleged, and subsequently the cause having gone to

the Supreme Court on petition for review and said

court on November 18, 1976, having reversed this

court and entered its mandate as attached:

NOW, THEREFORE, IT IS ADJUDGED and OR-

DERED that the decision entered below is reversed.

IT IS FURTHER ORDERED that petitioner re-

cover from respondents costs and disbursements in the

amount of $40 in the Supreme Court.

The cause is remanded for further proceedings

41

pursuant to law and the decision and opinion of the

Supreme Court.

ENTERED at Salem, Oregon NOVEMBER 18,

1976.

ISSUED: JAN. 19, 1977

42

Appendix H

No. 248—November 18, 1976

IN THE SUPREME COURT OF THE

STATE OF OREGON

In Banc

TUPPER, Respondent—Cross-Petitioner,

v.

FAIRVIEW HOSPITAL AND TRAINING

CENTER et al, Petitioners.

On review from the Court of Appeals.*

Argued and submitted June 7, 1976.

W. Michael Gillette, Solicitor General, Salem,

argued the cause for petitioners. Also on the briefs

were Lee Johnson, Attorney General, Salem, and John

W. Burgess, Assistant Attorney General, Salem.

Henry H. Drummonds of Kulongoski, Heid,

Durham & Drummonds, Eugene, argued the cause and

filed briefs for respondent/cross-petitioner.

Reversed and remanded.

HOWELL, J.

*Review of order of Public Employe Relations Board. 22 Or App 523,

540 P2d 401 (1975).

43

HOWELL, J.

This case is before us on review from a decision of

the Court of Appeals, 75 Adv Sh 3218, 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 pro-

ceedings 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 hear-

ing, 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, 75 Adv Sh 4513, 23 Or App 743, 543 P2d

1094 (1975), in order to consider what types of preter-

mination and post-termination procedures are con-

stitutionally 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 Depart-

ment 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.

44

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

cénsidered insubordination and disciplinary action

will follow.”

When July 10 arrived, Tupper had made additional

progress, but some of the records still remained incom-

plete. 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 situa-

tion with his supervisors, the director of the psychiat-

ric aide staff recommended a dismissal. The following

day, without first notifying Tupper of the contem-

plated 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,

45

and, on March 21, 1975, the board issued a final order

which essentially adopted the proposals of the hear-

ings 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 subse-

quent PERB hearing supplied the due process previ-

ously lacking and held that Tupper was only entitled

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 con-

stitutionally required in every case and that the

post-termination hearing conducted by PERB,

together with the repeated encouragements, confer-

ences, demands, warnings, etc., was sufficient to

satisfy due process requirements in the present situa-

tion. 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 dismis-

sing 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

46

Constitution imposes procedural due process con-

straints on governmental actions which deprive indi-

viduals 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, —— US——, 96 S Ct 2074,

48 L Ed2d 684 (1976).

Governmental deprivation of such a property inter-

est must be accompanied by at least minimal pro-

cedural 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, ——

US ——, 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 depend-

ing upon the particular circumstances and interests

involved. Mathews v. Eldridge, supra; Morrissey uv.

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

47

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the gov-

ernment’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 PaL

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 preter-

mination 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 eviden-

tiary hearing was provided. In upholding this pro-

cedural scheme, Justice Powell balanced the interest

of the individual employee in continued public employ-

ment pending an evidentiary hearing against the

government’s interest in the expeditious removal of an

unsatisfactory employee.’ Powell noted that the proce-

dures in Arnett “minimize[d] the risk of error in the

initial removal decision and provide(d] for compensa-

tion 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

‘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, —— US ——, 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).

48

procedures employed in Arnett provided “a reasonable

accommodation of the competing interests.” /d. at

171.

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 exten-

sive pretermination procedures existing in Arnett,

under the termination system utilized in this case

virtually no procedural safeguards are employed prior

to the actual dismissal. Although Tupper was

repeatedly counseled and warned that “further discip-

linary 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 depri-

vation of the employee’s interest in continued em-

ployment pending a full evidentiary hearing was

substantially greater in this case than it was in Arnett.

Moreover, even the relatively extensive pretermi-

nation procedures involved in the Arnett decision were

found to be constitutionally adequate by only a fairly

?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 tederal 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).

49

narrow margin.’ Therefore, on the basis of Arnett v.

Kennedy, supra, and in view of the competing inter-

ests involved in these cases, we conclude that in

addition to his full post-termination hearing Tupper

was intitled 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.‘

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 con-

clude 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.® 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

3Four 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.

‘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.

*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 240.5060, 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).

50

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.

O’CONNELL, J., specially concurring.

The pivotal question raised by the state’s petition

for review and Tupper’s cross-petition for review is the

validity of the procedures for termination under ORS

240.555, 240.560 and Personnel Rule 81-100, tested by

the constitutional requirements of due process. More

specifically, the question is whether a pre-termination

hearing is required to satisfy due process re-

quirements.' Both this case and the companion case,

Hammer v. Oregon State Penitientiary, decided this

day, were briefed and argued solely with reference to

the due process clause of the Fourteenth Amendment.

Within the framework it seems probable from Arnett

v. Kennedy, 416 US 134, 94 S Ct 1633, 40 L Ed2d 15

(1974), that a post-termination hearing is sufficient to

satisfy the federal requirement of due process, at least

if certain safeguards such as notice of the charges and

an opportunity to respond precede the dismissal.

Neither the petitioner nor respondent have sought to

determine whether the Oregon Constitution goes

beyond this interpretation of the federal constitution,

guaranteeing a greater protection in a procedural way

to an employee with entitlement. It is important that

this inquiry be made because if there is an applicable

provision in our constitution which can be construed as

requiring a pre-termination hearing, any discussion of

the Fourteenth Amendment and its interpretation in

the Arnett case is, of course irrelevant.”

Since the applicability of the Oregon Constitution

‘Although the constitutional question might have been avoided by

interpreting ORS 240.555 and 240.560 as requiring a pre-termination

hearing, Personnel Rule 81-100, adopted pursuant to the authority vested

in the Public Employe Relations Board under ORS 240.555(1) to establish

termination procedures, provides for a post-termination hearing.

2 See, Linde, Without “Due Process,” 49 Or L Rev 125, 133 (1970).

a

51

was not raised by counsel, the preliminary question is

whether this court can raise it sua sponte. This is not

the situation, frequently presented, where a constitu-

tional question is not raised at the trial stage and is

raised for the first time by counsel on appeal. In the

present case it is assumed that a constitutional ques-

tion of procedural due process under the federal

constitution is properly presented; the question is

whether this court should, on its own motion, consider

the related question of the applicability of Art. I, § 10

of the Oregon Constitution. Since the matter is of

substantial public concern, it is our duty to consider

it.

Art. I, § 10 provides:

“No court shall be secret, but justice shall be adminis-

tered, openly and without purchase, completely and

without delay, and every man shall have remedy by due

course of law for injury done him in his person, property,

or reputation.”

It has been strongly argued by Professor Hans Linde

that the guarantees in Art. I, § 10 are not the precise

equivalents of the guarantees found in the Fourteenth

Amendment.‘ Assuming, without deciding, that this is

3Inasmuch as the right to a pre-termination hearing is the principal

question involved and since this question of the timing of the hearing

would involve a similar policy analysis under both the federal and state

constitutions (assuming the latter is applicable), there would be no reason

to call for supplemental briefs.

‘Linde, Without “Due Process,”49 Or L Rev 125 (1970). Professor Linde

interprets Art. I, § 10 as a “remedies clause” merely guaranteeing a legal

remedy for private wrongs derived from Chapter 40 of the Magna Carta

(“To no one will we sell, to no one will we deny, or delay right or justice”),

and is not a “due process” clause providing guarantees against official

deprivations “except by the law of the land”—clauses derived from Chapter

39 of the Magna Carta (“NO free man shall be taken or imprisoned or

dispossessed, or outlawed, or banished, or in any way destroyed, nor will we

go upon him, nor send upon him, except by the legal judgment of his peers

or by the law of the land”). When the Magna Carta was re-issued under

Henry III, the two clauses were combined under Chapter 29, which

eventually was enacted as a statute by Parliament in 1797. Art. I, § 10 and

its predecessors say more than Chapter 40 does, and it is possible that the

constitutional draftsmen intended to embody the two ideas expressed in

Chapter 29 of Magna Carta. In any event, in the states which have

provisions simiiar to Art. I, § 10 the courts, including this court, have

(Continued on following page)

52

so, it seems clear that the two constitutional provisions

are the same insofar as each would prohibit the

deprivation of the interests specified in the respective

provisions of the federal and Oregon constitutions

without fair procedures generally associated with the

term “due process,”

In the present case the interest of Tupper is

denominated an “entitlement.” Comparable interests

of public employees have been classified as “property”

interests.5 The inquiry is, therefore, whether the

guarantee of Art. I, § 10, of the Oregon Constitution,

which prohibits injury to person, property or reputa-

tion without due course of law, and guarantees the

complete administration of justice, is satisfied by

anything short of a pre-termination hearing. In addi-

(Continued from previous page)

regarded the provisions as the equivalent of the due process clause of the

Fourteenth Amendment. See, (interpreting Indiana Constitution, Art. I, §

12) Hale v. State, 248 Ind 630, 230 NE2d 432, 435 (1967); Sweet v. State, 233

Ind 160, 117 NE2d 745, 746-47 (1954); Hamm v. Review Board of the

Indiana Employment Security Div., 132 Ind App 318, 177 NE2d 337, 338

(1961); Freeman v. Pierce, 179 Ind 445, 101 NE 478, 479 (1913), and

(interpreting Ohio Constitution, Art. I, § 16) Ex Parte Martin, 139 Ohio St

609, 41 NE2d 702, 706 (1942); State ex rel Smilack v. Bushong, 159 Ohio St

259, 111 NE2d 918, 922 (1953), and (Oregon) State v. Bouse, 199 Or 676,

686, 264 P2d 800 (1953). Cf, School Dist. No. 7 v. Weissenfluh, 236 Or 165,

173, 387 P2d 567 (1963) and Columbus Packing Co. v. State, 106 Ohio St

469, 140 NE 376, 378 (1922).

Even if Art. I, § 10 is interpreted as not including a subs tive due

process provision, it does require procedura] due process in © sense of

requiring a remedy for injuries to person, property or rep..ation. If an

entitlement is “property”, the employee is entitled to a “remedy by due

course of law” to retain it. That remedy must be provided by the state. It is

for us to say whether it is a remedy “by due course of law” if the employee is

given a hearing only after he has been discharged.

5 See, e.g., Arnett v. Kennedy, 416 US 134, 94 S Ct 1633, 40 L Ed2d 15

(1974) (the separate opinions reveal a consensus that such an “entitlement”

is a property interest); Perry v. Sindermann, 408 US 593, 92 S Ct 2694, 33 L

Ed2d 570 (1972); Comment, 10 Harv Civil Rights L Rev 472, 473 (1975). Cf,

Reich, The New Property, 73 Yale L J 733 (1964).

The recent cases of Mitchell v. W. T. Grant Co., 416 US 600, 94 S Ct

1895, 40 L Ed2d 406 (1974) and North Georgia Finishing v. Di-Chem., 419

US 601, 95 S Ct 719, 42 L Ed2d 751 (1975) have created uncertainty in this

area. See opinions of Stewart, J. in Mitchell and North Georgia Finishing.

Regardless of the direction finally taken by the U. S. Supreme Court, I

believe that plaintiff in the present case has a property interest protected

by the justice and remedies clause of the Oregon Constitution.

ee

53

tion to being a “property” interest, job tenure is also a

“reputation” interest. The stigma which an employee

suffers upon being discharged from his job, even if

only temporarily, can be regarded as an injury to his

“reputation,” thus qualifying as a protected interest

under Art. I, § 10.®

Beginning, then, with the recognition of a constitu-

tionally protected interest in the petitioner, the court

is faced with the question posed above—is a pre-

termination hearing necessary to meet the minimum

standards of due process? In answering this question,

it must be recognized that the procedural requisites for

a due process hearing vary depending upon the import-

ance of the interests involved. On one hand are the

interests of the government in expeditiously removing

an unsatisfactory employee; on the other hand are the

interests of the employee in retaining his job. In the

Arnett case Justice Powell, in a specially concurring

opinion, concluded that the interest of the government

as employer outweighed the interest of the employee

in balancing the need for a pre-termination hearing.

He stated:

“* * * Prolonged retention of a disruptive or other-

wise unsatisfactory employee can adversely affect dis-

cipline and morale in the work place, foster disharmony,

and ultimately impair the efficiency of an office or

agency.”

He added that

“* * *[A) requirement of a prior evidentiary hearing

would impose additional administrative costs, create

delay, and deter warranted discharges.” 40 L Ed2d at 41.

® Discharge from a government job often seriously injures the employ-

ee’s business and professional reputation. There is a widely held impression

that it is difficult to fire government workers, and this contributes to the

belief that anyone fired by the government is probably unemployable. See,

Merrill, Procedures for Adverse Actions Against Federal Employees, 59 Va

L Rev 196, 204 (1973); and Due Process and Public Employment in

Perspective: Arbitrary Dismissals of non-Civil Service Employees, 19 UCLA

L Rev 1052, 1065 (1972). Discharge from a job often damages the

employee's personal reputation, too, since status in our society is so closely

related to an individual’s source of livelihood. See, Reich, 7he New

Property, supra note 5.

54

It is difficult to understand how Mr. Justice Powell

could have recited the foregoing as the reasons for his

conclusion in the face of the very thorough study of

Professor Merrill marshalling facts which point to a

contrary conclusion.’ As to “additional administrative

costs,” “delay” and the alleged deterrence of warranted

discharges, Merrill points out that “The data * * *

show that in 1970 agencies that provided hearings in

advance generally processed cases faster than those

that made a hearing available only on appeal.” He

adds that “available data clearly do not show that

conducting the hearing afterwards helps shorten the

process.”

The contention that the retention of an unsatisfac-

tory employee pending a hearing might be disruptive

loses most of its force when it is revealed that the law

and regulations existing at the time Arnett was

decided required that an employee be given at least

thirty days’ notice of a proposed adverse action so that,

as pointed out by Merrill, “agency personnel even now

must function for at least a month with the threatened

employee in their midst.”° There is no reason to

assume that a hearing could not be scheduled and held

within that thirty-day period. There are other data

and factors which could be recited to prove that it is

not necessary in the interest of office efficiency to

postpone the termination hearing.’ In fact, a pre-

termination hearing should enhance efficiency by

giving the agency an incentive to expedite disposition

7The substance of the report is contained in an article entitled

Procedures for Adverse Actions Against Federal Employees, supra note 6.

On the basis of Merrill's report, the Administrative Conference of the

United States strongly recommended that evidentiary hearings be held

prior to discharge

8Merrill, supra 59 Va L Rev at 241.

®“(T}here seems little reason why a hearing could not be held during

that 30-day period.” Marshall, J., dissenting, 416 US at 225.

10 B g., see Marshall, J.’s dissent in Arnett; Merrill, supra 59 Va L Rev

196 at 238-246; Fear of Firing: Arnett v. Kennedy and the Protection of

Federal Career Employees, 10 Harv Civil Rights L Rev 472 (1975).

aries ose sin heer

55

of the matter, allowing it to get on with its primary

functions. ™

The conclusion is, then, that the government as

employer has no interests which outweigh those of the

employee calling for the postponement of the hearing

until after termination has been effected. There being

no identifiable governmental interests deserving spe-

cial protection, the hearing requirements necessary to

satisfy due process are the same in preserving the

interests of an employee whose job is threatened as

they are where an owner’s property is sought to be

taken or where a person’s liberty is at stake.!?

I am satisfied that due process requires a prior

hearing before property can be taken.!* On the same

facts, I would regard Art. I, § 10 as requiring the same

pre-taking procedure. Since I regard an entitlement as

a species of property within the meaning of Art. I, § 10,

an employee having such an interest is entitled to

have a hearing before that interest is taken from him.

11 See 59 Va L Rev at 245.

12Cf., Fuentes v. Shevin, 407 US 67, 92 S Ct 1983, 32 L Ed2d 556 (1972),

where it was held that due process requires a prior hearing before property

can be taken through the use of state law replevin procedures to repossess

chattels; and Morrissey v. Brewer, 408 US 471, 92S Ct 2593, 33 L Ed2d 484

(1972), where it was held that due process requires a prior hearing before a

person can be deprived of liberty through state parole revocation.

13 See, Fuentes v. Shevin, 407 US 67, supra note 12; Sniadach v. Family

Finance Corp., 395 US 337, 89 S Ct 1820, 23 L Ed2d 349 (1969).

56

Appendix I

No. 514—-December 29, 1975

IN THE COURT OF APPEALS OF THE STATE

OF OREGON

HAMMER, Petitioner. v. OREGON STATE

PENITENTIARY er at (CA 4900), Respondents.

Judicial Review from Public Employe Relations

Board.

Argued and submitted November 25, 1975.

Henry H. Drummonds, Eugene, argued the cause

for petitioner. With him on the brief were Kulongo-

ski, Heid, Durham & Drummonds, Eugene.

Al J. Laue, Assistant Attorney General, Salem,

argued the cause for respondents. With him on the

brief were Lee Johnson, Attorney General, and W.

Michael Gillette, Solicitor General, Salem.

Before Scuwas, Chief Judge, and Lanatry and

Fort, Judges.

AFFIRMED.

FORT, J.

Petitioner was suspended and dismissed from his

position as corrections officer at the Oregon State

Penitentiary for chronic and excessive absenteeism on

the ground that such conduct constituted “unfitness

to render effective service” under ORS 240.555(1).

Petitioner appeals from an order of the Public Em-

ploye Relations Board (PERB) affirming his dis-

missal. He was a classified employe under the State

Merit System Law, ORS ch 240.

Petitioner claims error because no showing was

made that he was unfit to work at the time of his

discharge and because the hearing granted him was

insufficient to meet the requirements of the Due Pro-

ee ee ee eee

ee

57

cess Clause of the Fourteenth Amendment to the

United States Constitution.

The evidence at the hearing was that at the time

petitioner was hired at the Oregon State Penitentiary

in January 1972 he had a sciatic nerve injury from

active service in Vietnam. In October 1973 petitioner

injured his back while on the job. He also suffered

from hypertension.

As a result of his back injury and other health

problems petitioner was frequently absent from work

in 1973 and 1974. PERB found that while absences

due to the on-the-job injury were not cognizable in a

discharge proceeding, petitioner was absent 1433/4

hours in 1973 and 169 hours in 1974 in addition to

all his regular sick leave and to time loss caused by

his back injury.

PERB also found that absenteeism created a

serious problem at the penitentiary. Security posi-

tions of necessity had to be filled. Absence on short

notice required working officers overtime and dis-

rupting their schedules until a relief person could

be located. This created a hardship since a number

of corrections officers had been absent frequently.

Petitioner’s record was worse than that of any of the

other security officers.

Penitentiary personnel had notified petitioner

both orally and in writing several times that his ab-

sence record was a serious problem and that he

might be disciplined or discharged if his perform-

ance did not improve. He was notified at least five

times during 1974 that his attendance record was un-

satisfactory, the last time on October 21, 1974. After

that date petitioner was absent five days in October

and November. On December 3, 1974, petitioner was

suspended for ten days without pay and then dis-

charged.

After a hearing held January 22 and 23, 1975, a

58

report from its hearing examiner, and oral argument,

PERB, on June 6, 1975, upheld the dismissal.

The first question before us is whether PERB had

evidence before it to conclude that absences averag-

ing over 19 days per year in addition to authorized

sick leave here constitute unfitness to render effee-

tive service under ORS 240.555(1).

Petitioner claims that after November 4, 1974, his

back problem and hypertension were in remission and

that he could not be discharged without a medical ex-

amination to establish that he was unable to work.

At the hearing he produced a cryptic note from his

doctor stating that he thought petitioner was medi-

cally able to work, but nothing more.

We believe that PERB’s findings of fact are sup-

ported by substantial evidence in the record.

Petitioner was hired as a full-time employe. His

health problems other than those related to his on-

the-job injury have had the effect of making him a

part-time employe with unpredictable periods of ab-

sence. This has resulted in disruption in the man-

ning of security posts at the penitentiary and, upon

occasion, hardship on his fellow workers as stated

above. The Board found that petitioner was not wil-

fully absent for reasons other than health. Nonethe-

less, after considering his two-year history of numer-

ous absences for health reasons we conclude that this

record is sufficient to find that he is unfit to render

effective service on his responsible job. The employer

is not required to obtain a medical examination of

its employe.

®For other discharges applying the “unfitness to render

effective service” clause along with other clauses of ORS 240.-

155(1), see James v. Employment Division, 75 Adv Sh 490, 20

Or App 309, 531 P2d 710, Sup Ct review denied (1975); Joiner

v. Public Emp. Relations Bd., 14 Or App 567, 513 P2d 523, Sup

Ct review denied (1973); Phillips v. State Bd. of Higher Ed.,

7 Or App 588, 490 P2d 1005 (1971), Sup Ct review denied (1972).

59

We find that “unfitness to render effective serv-

ice” is not unconstitutionally vague as petitioner con-

tends. In Arnett v. Kennedy, 416 US 134, 158, 94 S

Ct 1633, 40 L Ed 2d 15 (1974), the plurality held that

the provision of 5 USC § 7501(a) authorizing removal

“for such cause as will promote the efficiency of the

service” was not unconstitutionally vague. This court

has also held in Palen v. State Bd. of Higher Educa-

tion, 99 Adv Sh 1254, 18 Or App 442, 525 P2d 1047,

Sup Ct review denied (1974).

Petitioner next challenges the sufficiency of the

procedures followed in his discharge, contending that

the lack of a full evidentiary hearing before discharge

violated his due process rights. He also contends that

the hearing before the PERB hearings examiner was

not a de novo review of the decision to discharge and

thus was not sufficient for due process.

We have recently dealt with these issues in Tup-

per v. Fairview Hospital, 75 Adv Sh 3218, 22 Or App

——, 540 P2d 401 (1975), where we held that an em-

ploye was constitutionally entitled to a pretermination

evidentiary hearing. We also held there that the hear-

ing before a PERB examiner was sufficient to meet

due process requirements except that it came too late.

We apply that rule here. See also: Gunsolley v.

Bushby, 99 Adv Sh 3229, 19 Or App 884, 529 P2d

950 (1974).

Affirmed.

60

Appendix J

CORRECTIONS DIVISION

OREGON STATE PENITENTIARY

DEPARTMENT OF HUMAN RESOURCES

2605 State Street—Salem, Oregon—97310—

Phone 378-2445

December 3, 1974

Mr. Jerry L. Hammer

239 Eldine Street

Salem, Oregon 97301

Dear Mr. Hammer:

Being employed in the Security Section of the Oregon

State Penitentiary in the classification of Correctional

Officer, you are hereby notified of the following

personnel actions:

CLASSIFICATION: Correctional Officer

PAY RATE: $715 per month

SECTION: Security Section, Oregon

State Penitentiary.

PERSONNEL ACTIONS: Suspension from duty

without pay for a period

of ten (10) work days from

Tuesday, December 3,

1974 through Monday,

December 16, 1974,

including the beginning

and ending dates, to be

6 eee

a ee. ke eS Le See

61

followed by your dismis-

sal from employment as a

Correctional Officer at

the Oregon State Peniten-

tiary on Tuesday, De-

cember 17, 1974.

STATUTORY GROUNDS Other unfitness to render

FOR THE ACTION: effective service as pro-

vided by ORS 240.555.

CHARGES AND FACTS Records indicate that you

SUPPORTIVE OF were appointed January

ACTION: 17, 1972, as a Correction-

al Officer. Your attend-

ance record for 1972 indi-

cated a total of 76 hours

paid sick leave and 44-%

hours sick leave without

pay.

CHARGES AND FACTS SUPPORTIVE OF ACTION

(continued):

Attendance records for 1973 indicate a total of 91

hours paid sick leave and 305 hours sick leave without

pay.

Attendance records from January 1, 1974, through

November 30, 1974, include a total of 67 hours paid

sick leave and 335 hours sick leave without pay and

other leave without pay.

You have been counseled many times about your

continuing absence problems.

62

On January 14, 1974, you receive a written reprimand

in which it was pointed out to you that: “Your

employment is not ‘part-time’ but rather is a full-time

position, and your absence whenever and wherever it

occurs and for whatever reason hinders the efficient

operation of this penitentiary.” Further, this written

reprimand stated that: “If your absences have been

truly due to physical disability, we recommend that

you apply for an extended leave of absence without

pay in order that you might have sufficient time to get

your health in shape to truly to be able to resume

full-time duties upon your return.”

You did not take advantage of this offer of an

extended leave and your absences have continued at

an ever-growing rate. You were further told that: “If

you decide not to request an extended leave of absence

for health reasons, we must assume that your physical

condition will allow you to undertake full-time duties;

and in the event that your absence record continues in

the future as it has in the past, you will be subject to

further disciplinary action up to and including

discharge.”

On September 30, 1974, your eport of Performance

Appraisal rated you as a “C” and you were denied a

merit salary increase at that time on the basis that:

“, .. Mr. Hammer could be a good officer but he

appears to have little if any interest in his job. Mr.

63

Hammer has been counseled several times about the

use of sick leave.”

On October 23, 1974, you were again counseled by

Messrs. Pribble and Keeney about your continued

unsatisfactory use of sick leave time.

Your absences during the nearly three years of your

employment total 926.5 hours or about 23 weeks or

over seven weeks per year. Since January 1, 1974,

your absences have been at the rate of more than eight

weeks a year. Since the October 23, counseling, you

have been absent a total of 40 hours, specifically on

October 27, November 4, 24, 25 and 26.

Your undaunted and increasing absences since the

January 14, 1974, written reprimand, the perform-

ance appraisal of September 30, 1974, and the counsel-

ing of October 23, 1974, viewed against the back-

ground of your total absence record, give us no choice

but to conclude that you are unfit to render effective

service.

You have been given every consideration in your

employment at this institution; and there are no

mitigating circumstances in your case that would

cause us to reduce the ten work day suspension and

dismissal here ordered.

Please be advised that ORS 240.560 and Personnel

Division Rule 81 100 grant you the right to appeal this

64

Personnel Action to the Public Employe Relations

Board within ten days of the effective date of this

action. You may wish, if you so choose, to contact the

AFSCME Local 2623 for assistance in such appeal.

Very truly yours,

H. C. CUPP,

Superintentent

HCC:nn

APPROVED

R. J. WATSON, Deputy Administrator

for AMOS E. REED, Administrator

cc: Personnel Division

Public Employe Relations Board

Mr. Don Gertenrich, President, AFSCME Local

2623

Mr. W. Hoelscher, Department of Justice

Mr. Phil Senkovich, Chief Personnel Officer,

Corrections Division

Personnel File

ona wee Rae