Because Jerry Robinson was denied procedural due process, I respectfully dissent with the majority's disposition of Robinson's first assignment of error.
The majority correctly notes that:
the requisite due process has been afforded, when, prior to termination, the employee has the "opportunity to present reasons, either in person or in writing, why the proposed action should not be taken" after the person has received "oral or written notice of the charges against him, [and] an explanation of the employer's evidence." Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506.
However, Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 546, 84 L. Ed. 2d 494, 506, concerned only the due process required to be afforded to an employee prior to termination. The "pretermination opportunity to respond" is simply an initial check against mistaken decisions. Id. at 545. A full evidentiary hearing is not required at the pre-termination stage. Id. Rather, "`something less' than a full evidentiary hearing is sufficient prior to adverse administrative action[.]" Id. Loudermill did not determine that the only due process required to be afforded to an employee is the "pretermination opportunity to respond." To the contrary, the United States Supreme Court stated that its decision was based in part upon "the provisions in Ohio law for a full posttermination hearing." Id. at 543.
R.C. 3319.081, the statute which governs Robinson's termination, does not provide for a hearing on the matter, but rather grants a terminated employee the right to appeal the decision to a court of common pleas. Accordingly, based on Loudermill, if the terminated employee was not afforded a full posttermination hearing by the board or through some other mechanism such as arbitration, such a hearing must be held in the common pleas court. See id. See, also, Ohio Assn. of Pub. School Emp.,AFSCME, AFL-CIO v. Lakewood City School Dist. Bd. of Edn. (1994),68 Ohio St. 3d 175 (recognizing that a more thorough posttermination hearing is required to satisfy the procedural due process requirements of a terminated public employee, but stating that there are no express procedural due process mandates in a posttermination hearing). This is especially true in this case where the government action turned on purely questions of fact whether Robinson committed the acts of which he was accused.
As stated in Williams v. Dollison (1980), 62 Ohio St. 2d 297, 299:
Due process of law implies, in its most comprehensive sense, the right of the person affected thereby to be present before the tribunal which pronounces *Page 51 judgment upon a question of life, liberty or property, to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, such is not due process of law.
Robinson was clearly not afforded due process of law as the trial court conclusively presumed every material fact against him. The trial court wrote:
The facts leading up to Robinson's termination and the reasons behind his termination are highly disputed by the parties in this case. However, pursuant to [R.C.] 2506.04, the standard of review to be applied by this Court in the review of an administrative appeal is whether the decision of the administrative entity was unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by a preponderance of reliable, probative and substantial evidence in the record.
The court permitted Robinson to submit affidavits, which rebutted the board's allegations. However, looking to the allegations set forth against Robinson, the court concluded: "Based on the record and documentation before it, the Board could have found that Robinson engaged in a pattern and practice of egregious misconduct and failed to properly perform work assignments as required." Thus, Robinson was never permitted to "`ferret out bias, pretext, deception and corruption by the employer in discharging'" him. AFSCME, supra, at 178, quoting Duchesne v. Williams (C.A.6, 1988), 849 F.2d 1004, 1008.
In determining that Robinson was not entitled to a hearing, the majority lays out the steps Robinson took on appeal to the common pleas court: (1) he filed a motion on March 13, 1998, to strike the record as it did not contain all the evidence he had submitted; (2) Robinson moved the court to order the Board to reinstate him; (3) on June 26, 1998, Robinson moved the court for additional evidence and a conference on the matter. The majority notes that, at the conference held pursuant to Robinson's June 26, 1998 motion, "Robinson again asserted that he had never been able to appear before the Board to state his case, or to call or cross-examine witnesses." Rather than addressing Robinson's claim that he was never given his due process rights, the trial court "ordered Robinson to brief the scope of the court's review in an appeal pursuant to R.C. 2506, where the record of the administrative agency is insufficient." In response, Robinson asserted that the court could reverse the decision, or hold a hearing because a hearing had never been held.
The majority lists additional steps Robinson took with respect to his appeal. However, it is not necessary to continue to list them. My point is to show that although the majority recognizes that Robinson repeatedly asserted that he had been denied his right to a fair hearing, the majority concludes that Robinson failed to properly articulate his request. A discharged employee who possesses a *Page 52 property right in continued employment should not have to overcome such a weighty burden in order to be afforded his constitutional right.
Accordingly, I would sustain Robinson's first assignment of error and reverse.